The Commonwealth may continue removing aliens from the rolls while the case continues.

As our David Zimmermann reports, the Supreme Court has effectively reversed two lower federal court rulings that sought to prevent the Commonwealth of Virginia from removing approximately 1,600 self-described aliens from the voter rolls.

I have previously posted on this case here, here, and here.

Judge Patricia Giles, a Biden appointee, had ordered Virginia to suspend its removal effort, which the administration of Republican governor Glenn Youngkin was carrying out pursuant to a state law signed by one of his Democratic predecessors (now-senator Tim Kaine) and previously enforced by his other Democratic predecessors. But an “immigrant rights” group sued to stop the removal effort. Judge Giles agreed with the group that Virginia was illegally carrying out a “systematic” removal “program” because Congress’s National Voter Registration Act bars such programs during the 90 days prior to a federal election.

Virginia countered, correctly in my view, that its program was not systematic because aliens were removed on a case-by-case basis, and this was done based on representations they’d individually made to state agencies. Moreover, aliens are not voters as that term should be understood in federal law — which makes it a crime for aliens (a) to represent themselves as American citizens for the purpose of registering to vote in a federal election, and (b) to vote in such an election.

Hence, the state’s program is not systematic, promotes election integrity in the Commonwealth, and reinforces — rather than violates — federal law. In addition, the claim that American citizens could be dropped from the rolls and prevented from voting due to bureaucratic error is belied by Virginia law, which permits voters to register on Election Day and cast to provisional ballots as long as they attest that they are American citizens.

Nevertheless, a three-judge panel of the Fourth Circuit U.S. appeals court — composed of a Biden appointee and two Obama appointees — denied Virginia’s request to stay Judge Giles’s order pending a full appeal.

Virginia appealed on Sunday night. In a brief order issued this morning, the Supreme Court stayed Judge Giles’s order, meaning Virginia can proceed with its removal program while the case continues in the Fourth Circuit.

This is not a decision on the merits. It simply allows Governor Youngkin’s administration, while the litigation proceeds, to continue ensuring that only qualified voters vote in the election.

The Court’s three progressive justices, Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson dissented — the Court’s order indicates that they would have denied Virginia’s application for a stay of Judge Giles’s order.