DOJ Challenges Virginia’s Process for Removing Noncitizens From its Voter Rolls
Why this political lawfare ploy should fail.
By Joseph Klein
The Biden-Harris administration announced on October 11th that it was suing the Commonwealth of Virginia for taking steps to remove non-U.S. citizens from Virginia’s voter rolls.
The Biden-Harris Department of Justice’s Assistant Attorney General Kristen Clarke explained the twisted rationale behind the federal lawsuit. According to her, Virginia’s good faith attempt to ensure an honest election that is not corrupted by the fraudulent votes of noncitizens, including illegal immigrants, is no more than an “eleventh hour effort” to “disenfranchise qualified voters.”
The opposite is true. Federal law and Virginia law prohibit non-U.S. citizens from voting in federal and state elections, respectively. The Biden-Harris lawsuit to stop Virginia from ensuring an honest election and enforcing these laws could likely lead to enfranchising non-U.S. citizens who are ineligible to vote in U.S. elections.
The premise of the Biden-Harris lawsuit is that Virginia has violated the National Voter Registration Act’s Quiet Period Provision. Section 8(c)(2) of the National Voter Registration Act (NVRA) requires states to “complete, not later than 90 days prior to the date of a primary or general election for Federal office, any program the purpose of which is to systematically remove the names of ineligible voters from the official lists of eligible voters.” The complaint alleges that Virginia failed to comply with this requirement and continued its program to remove non-U.S. citizens from its voter rolls after the 90-day completion deadline had passed.
On August 7, 2024 – ninety days before the November 5, 2024 federal general election – Virginia announced its program to remove individuals from registrars’ lists of registered voters who are unable to verify that they are U.S. citizens. Virginia’s Governor Glenn Younkin had issued an executive order to set the program in motion.
Voters are identified as possible noncitizens under the program if they chose “No” in response to questions about their United States citizenship status on certain forms submitted to the Department of Motor Vehicles (DMV). The program compares the list of individuals who have been identified to the DMV as noncitizens to the lists of existing registered voters. The program then requires local registrars to notify any matching individuals of their pending voter registration cancellation unless they affirm their citizenship within fourteen days. Matches who do not respond to the request for affirmation of their citizenship within fourteen days are removed from the voter rolls.
According to the complaint filed by the Biden-Harris administration, Virginia counties began removing individuals identified as possible noncitizens less than ninety days before the federal general election, which is within the prohibited Quiet Period. “Defendants’ continuation of a systematic process to remove purported noncitizens registered to vote in Virginia within 90 days of the November 5, 2024, federal General Election violated and continues to violate Section 8(c)(2) of the NVRA,” the complaint alleges.
The Biden-Harris administration’s lawsuit to stop Virginia from removing noncitizens who are ineligible to vote in federal or Virginia state elections is little more than a crass attempt to expand Democrats’ vote totals by any means possible. The administration’s misuse of the NVRA in this regard is inconsistent with the NVRA’s stated fundamental purposes. These purposes include protecting “the integrity of the electoral process” and ensuring that “accurate and current voter registration rolls are maintained.” The NVRA also states its intent to “increase the number of eligible citizens who register to vote in elections for Federal office.” (emphasis added)
Individuals who are non-U.S. citizens cannot legally vote in federal elections. The NVRA itself takes special note of this grounds for ineligibility by requiring that states use a common voter registration form, which includes an attestation that the applicant is a U.S. citizen under penalty of perjury. Virginia’s modest effort to correct its voter records by screening out individuals who as noncitizens were never eligible to vote in federal and state elections in the first place helps to enforce both federal and state voting laws.
Nevertheless, the Biden-Harris administration’s lawsuit is aimed at thwarting Virginia’s objective of ensuring the integrity of the elections that it conducts. The lawsuit reflects the open border administration’s willingness to risk diluting the votes of law-abiding U.S. citizens by countenancing lax enforcement of laws meant to keep non-U.S. citizens from voting in federal and state elections.
The timing so close to this year’s election is a highly suspicious political maneuver. How else to explain the Biden-Harris DOJ’s decision this late in the game to challenge a non-U.S. citizen removal program based on a bipartisan Virginia law that the DOJ had already blessed years ago?
“[W]e now know that the Virginia law was reviewed and expressly approved by the DOJ civil rights division,” Governor Youngkin said. “Now, after being applied for 18 years by both Democrat and Republican governors, with just 25 days before the presidential election, the Biden-Harris DOJ sues Virginia: Ensuring Virginia’s voter rolls do not include non-citizens is constitutional, it’s the law in Virginia and it’s common sense.” Governor Younkin vowed that “”I will not stand idly by as this politically motivated action tries to interfere in our elections, period.”
The DOJ complaint cited a federal appeals court case interpreting the NVRA’s Quiet Period prohibition against removal of ineligible persons so broadly that registered non-U.S. citizens could easily slip through the cracks and still vote in federal elections. This decision striking down Florida’s removals of noncitizens from its voter rolls stressed that “Congress expressly allowed for a number of exceptions to the 90 Day Provision, and an exception for removals of non-citizens is not one of them.”
The poorly reasoned court opinion upon which the Biden-Harris Justice Department relies to support its lawsuit against Virginia did note that the NVRA creates an exception in the Quiet Period Provision for “correction of registration records.” Although the exception for correcting registration records should logically encompass the removal of non-U.S. citizens who were incorrectly listed as registrants in the first place, the court irresponsibly skipped over this exception.
This federal appellate court’s rationale was that Florida’s Secretary of State “has not argued that his program constitutes a ‘correction’ of registration records.” But that should not matter. The court stated in its opinion that it was deciding the case based on statutory construction. However, the court was intellectually dishonest. It engaged in only a selective, cherry-picked interpretation of the NVRA statute by failing to examine the “correction” exception and its application to the systematic removal of noncitizens incorrectly included on the state’s voter rolls.
Even the Biden-Harris Department of Justice complaint acknowledges that “The Quiet Period Provision…does not preclude correction of an individual voter’s registration records pursuant to the NVRA.” That is all that Virginia was trying to do when its registrars sent out Notices of Intent to Cancel addressed to individual registered voters who had declared to the DMV that they were noncitizens. The registrars were inquiring whether the information indicated on the individual’s DMV application was correct or incorrect. Each individual registered voter who received this notice had sufficient time to respond.
All that an individual who received this notice had to do was to affirm his or her United States citizenship within the fourteen days allowed by the Code of Virginia. If the individual provided the local registrar with such affirmation, the individual remained on the voter rolls. Virginia’s program did not call for any further independent verification. On the other hand, an individual’s failure to do so gave rise to a rebuttable presumption that the individual was a noncitizen in the absence of credible independent evidence presented to the contrary. In such a case, Virginia acted upon this presumption to “correct” its voter registration records pertaining to that individual by cancelling the individual’s registration and removing his or her registration records from its system altogether. Even then, Virginia provided the affected individual with the opportunity to contact the local registrar’s office and seek redress if the individual believed that the removal was incorrect.
The National Voter Registration Act’s 90 Day Quiet Period Provision should not preclude a state’s right to correct its voter rolls at any time by removing non-U.S. citizens from its registration records. But given judicial interpretation of the NVRA that downplays the importance in the voter registration process of verifying U.S. citizenship and making appropriate corrections, the House Republican majority passed a bill entitled the Safeguard American Voter Eligibility (SAVE) Act. The SAVE Act would require states to obtain credible proof of an individual’s U.S. citizenship and identity when the individual registers to vote in a federal election. It would also unambiguously codify the requirement that states establish a program to remove noncitizens from their existing voter rolls, just as Virginia had done.
One would think that anyone interested in preserving voter integrity by ensuring that only eligible U.S. citizens can vote would support the SAVE Act. But virtually all Democrats in the House voted against the SAVE Act, and it is dead on arrival in the Democrat-controlled Senate. President Biden has vowed to veto the bill if it should somehow reach his desk.
Democrats who have opposed the SAVE Act argue that it is not necessary since there is already a federal law that makes it a crime for a non-U.S. citizen to vote in a federal election. But the current federal law prohibiting non-U.S. citizens from voting in a federal election does not contain an effective mechanism of enforcement with teeth.
Opponents of the SAVE Act also argue that it is a solution in search of a problem. According to past studies, they claim, there is no evidence proving that more than a handful of non-U.S. citizens have voted in previous federal elections. But even if true in the past, such findings are no longer relevant after the Biden-Harris administration allowed many millions of additional illegal immigrants into the U.S. and released most of them to reside in communities across the country. The Biden-Harris administration has also allowed at least a million more noncitizens into the United States by vastly expanding humanitarian parole programs beyond their original intent. Added to the non-U.S. citizens previously in the country, legally or illegally, there is now an alarmingly huge pool of non-U.S. citizens who could potentially use drivers’ licenses or other government-issued identification they receive to register to vote.
Democrats who opposed SAVE, a common-sense voter integrity bill, have also opposed voter identification and other legislation to prevent election cheating. Chicanery is a way of life for the Left in its quest for absolute power.