Federal judge bars Virginia from purging voters in election’s home stretch

A federal judge on Friday barred Virginia officials from automatically canceling the voter registrations of suspected noncitizens, saying the law prohibits states from purging their voter rolls 90 days before a presidential election.

U.S. District Judge Patricia Tolliver Giles rejected arguments from attorneys for Gov. Glenn Youngkin (R), who had signed an executive order Aug. 7 to expedite the removal of registered voters who checked a box on their driver’s license applications indicating they were not U.S. citizens. Fully qualified voters who simply skipped or overlooked the question have been caught up in the purge, as have those who became citizens years after their first interaction with the Department of Motor Vehicles, officials have said.

A federal court this month halted a similar program in Alabama after a challenge from the Justice Department, which argued in both cases that officials were sweeping eligible voters in their efforts to remove noncitizens. The swift response from federal authorities marked an escalation of enforcement actions on voting rights at a time when many leading Republicans, including GOP presidential nominee Donald Trump, have made false claims of widespread voting fraud, including by undocumented immigrants.

About 1,600 voter registrations have been canceled since Youngkin’s executive order went into effect, Virginia officials said. Justice Department attorneys said voters were still being removed as recently as Monday. Giles issued a preliminary injunction halting the program until the day after the Nov. 5 elections and directed the state to send a letter to all 1,600 people removed from the rolls, instruct county registrars to reinstate them and issue a news release indicating the removal process has stopped.

“What I find is a clear violation of the 90-day quiet provision,” Giles said in court. “It is not happenstance that this executive order was announced on the 90th day.”

Youngkin vowed to appeal.

“Virginia will immediately petition the Fourth Circuit Court of Appeals and, if necessary, the U.S. Supreme Court, for an emergency stay of the injunction,” he said in a written statement. The state’s lawyers asked Giles to stay her ruling Friday pending the appeal, but she declined.

“That’s a really important victory for Virginians and all democracy,” said Brent Ferguson, a lawyer representing Virginia Coalition for Immigrant Rights, the lead plaintiff in the case, which was joined by the League of Women Voters, African Communities Together and the Justice Department.

Bert Bayou, deputy executive director of African Communities Together, said some of their members who are naturalized citizens had been removed, and some didn’t know it. “We have to go back and educate people” that their rights were restored, he said.

The National Voting Registration Act prohibits states from conducting systematic voter purges during a 90-day “quiet period” before a federal election, in part to prevent mistakes, lawyers from the Justice Department’s Civil Rights Division and voting rights organizations argued.

“This is a continuing violation of the 90-day period,” a Justice Department attorney, Sejal Jhaveri, said during a hearing in Alexandria federal court Thursday. “We do know that U.S. citizens are being caught in this program.”

Green-card holders and other noncitizens legally present in Virginia are eligible for driver’s licenses, good for eight years, and undocumented immigrants may obtain a special version of the ID that is valid for two years Those individuals could later be naturalized and gain the right to vote before their driver’s licenses expire, attorneys said. The cancellation notices Virginia officials are mailing out say that voters can keep their registrations by mailing back a form affirming their citizenship, but only if they do so within 14 days.

Attorneys for Youngkin and Attorney General Jason Miyares (R) argued that despite the wording of the National Voting Registration Act, officials had a duty to remove any “noncitizens, minors and fictitious people” from the voter rolls to ensure election integrity.

“It should never be illegal to remove an illegal voter,” Miyares said in a written statement Friday, after the ruling. “Yet, today a Court - urged by the Biden-Harris Department of Justice - ordered Virginia to put the names of non-citizens back on the voter rolls, mere days before a presidential election.

Giles noted from the bench that Virginia still has “the authority to investigate and remove non-citizens from the registration rolls. But when it is done in the 90-day [period], it must be done on an individualized basis,” rather than through a statewide program.

Charles Cooper, a longtime Republican lawyer, argued on behalf of Virginia officials that any eligible voter who was wrongly removed could get reinstated by mailing the affirmation of citizenship - as 43 voters who were wrongly removed in Prince William County have done - or use Virginia’s same-day voter registration process. In Loudoun County, eight voters who were removed under Youngkin’s program have since re-registered, officials said.

“That individual can still vote,” Cooper asserted. He conceded that some eligible voters could be wrongly removed and not get reinstated in time. But he said that if Virginia officials immediately restored the roughly 1,600 canceled voter registrations, as the Justice Department and voting rights groups requested, “hundreds of noncitizens” would be back on the rolls and able to “cancel out” legitimate ballots cast by U.S. citizens.

“That is a harm as well,” Cooper said. “That harm presents a significantly larger threat.”

Campaigning in Virginia alongside Trump, Youngkin has sounded the alarm about illegal immigration and promoted his administration’s purge of 6,303 noncitizens from voter rolls during his first 2½ years in office, a total that was announced as part of the August executive order and that does not include the subsequent 1,600 removals.

But a Washington Post review of state court records and interviews with election officials found no evidence that noncitizens have tried to vote during Youngkin’s term. As few as three people were prosecuted for illegal voting offenses between January 2022 and July of this year, the records showed. None of the cases involved a question of citizenship.

Youngkin billed the executive order he issued in August as a way to promote “election security.” While much of that order incorporated voting rules already on the books in Virginia, such as the use of paper ballots, he emphasized his attention to noncitizen voters as an important new feature. But previous governors have used the same the purge process since 2006, with Youngkin merely expediting the removals - from monthly to daily.

Giles directed state election officials to restore all voters removed from the rolls since Aug. 7 within five days, unless those individuals acknowledged they weren’t citizens or otherwise wanted to be removed. She said state officials must issue guidance to county registrars in every jurisdiction, and she ordered the state to submit a list to her within five days of every registered voter who was removed between Aug. 7 and Friday.

The judge also told Virginia to send a letter to every person who was removed from the rolls since Aug. 7, notifying them that their rights had been restored. But because Friday was the deadline to apply for an absentee ballot, Giles acknowledged that option may be unavailable for some people, and she declined to extend the deadline, though she invited the parties to devise a workaround. The judge also said that “I do find a press release is appropriate,” as a statewide notification process.

“What I don’t want to do is create confusion,” Giles said. “We want our voters back on the roll, but we don’t want confusion.”

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Gregory S. Schneider contributed to this report.