The Biden administration asked the Supreme Court on Tuesday to uphold lower court rulings ordering Virginia to immediately restore 1,600 names to its voter rolls, but saying the state can remove them once the election is done.
Solicitor General Elizabeth Prelogar said under federal law, no major changes can be made to the lists within 90 days of a national election. And she said Virginia’s attempt to cleanse its rolls breaks that “quiet period.”
“Everyone agrees that States can and should remove ineligible voters, including noncitizens, from their voter rolls. The only question in this case is when and how they may do so,” she told the high court.
She asked the justices to uphold lower court rulings ordering the state to stop its cleansing and to restore names that had been culled.
Virginia Gov. Glenn Youngkin says that would mean actively putting noncitizens back on the rolls just before an election.
Ms. Prelogar, though, said at least some of the people the state has removed are in fact citizens, and without a court order they and others who have yet to come forward could struggle to cast ballots next week.
The case has taken on an outsized role in an already heated election season, with other GOP-led states rushing to file briefs defending Virginia and left-leaning voting groups siding with the Biden administration.
Mr. Youngkin said he is following state law that requires the Department of Motor Vehicles to transit to election officials lists of people who indicated they weren’t citizens in their DMV applications. Those election officials are then to use those lists to scour the voter registration files and initiate removals where appropriate.
He said the federal law, the National Voter Registration Act or Motor Voter, as it’s sometimes called, only applies to “voters” and someone who is a noncitizen can’t be a voter under federal law. The result, Virginia says, is that the 90-day quiet period barring major changes shouldn’t apply to efforts to remove noncitizens.
Virginia has asked the justices to stay the lower court rulings, which would allow the names to be removed before the election.
The 4th U.S. Circuit Court of Appeals rejected Virginia’s reading of the law, saying it conflated definitions of “voters” and “registrants.”
Ms. Prelogar urged the justices to leave the 4th Circuit’s ruling in place.
She said if Virginia wanted to remove the names during the quiet period it needed to do a more individualized investigation into those kicked off the rolls.
“That lack of individualized process explains why applicants’ program ensnared many voting-eligible citizens,” she said.
Ms. Prelogar also said if Virginia wants to delete the names — or prosecute noncitizens who do end up illegally voting — it can do that later.
The Virginia Coalition for Immigrant Rights, which also sued Virginia over the purge, said in its own filing with the justices Tuesday that Prince William County canceled registrations of 43 people he believed to be citizens because they had verified their citizenship.
“The fundamental right of eligible Virginians to vote is not protected by this Program, but rather is undermined by it,” the coalition said.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.