Federal judge halts Virginia’s pre-election voter roll purge aimed at suspected noncitizens

A federal judge on Friday halted a Virginia program that purged the state’s voter rolls based on indications that a person might be a noncitizen and ordered officials to restore the registrations of roughly 1,600 people who had been removed under the process.

The ruling, from US District Judge Patricia Tolliver Giles, an appointee of President Joe Biden, does not give noncitizens the right to vote.

Rather, Giles is siding with the Biden administration and others in finding that Virginia’s program violated a federal law that forbids systematic removals from the voter rolls 90 days before a federal election.

“When it is within the 90-day period, it must be done on individualized basis,” she said Friday. Virginia’s approach “left no room for individualized inquiry.” The challengers also put forward evidence that citizens were being wrongly removed from the rolls under Virginia’s systems, the judge noted.

As part of Giles’ order, election officials are to send the 1,600 people notices informing them their registrations have been restored. Those letters will also advise them that noncitizens are not eligible to vote in Virginia.

Former President Donald Trump railed against the ruling on Truth Social, claiming that a “Weaponized Department of ‘Injustice,’ and a Judge (appointed by Joe), have ORDERED the Great Commonwealth of Virginia to PUT NON-CITIZEN VOTERS BACK ON THE ROLLS.”

State officials immediately appealed the ruling to the 4th US Circuit Court of Appeals, and Trump, in his Truth Social post, said the “U.S. Supreme Court will hopefully fix it!”

On Friday night, Virginia officials asked the appeals court for an emergency order pausing the trial judge’s ruling. The appeals court ordered the Justice Department and the private plaintiffs to respond by 1 p.m. Saturday.

Virginia is asking for the appeals court to decide the emergency appeal by Monday.

The ruling comes on the heels of a Justice Department victory in a similar case brought against Alabama for a purge program it was running within the 90-day window. When Giles announced her ruling from the bench Friday, lawyers for the state asked her to pause while they appeal, raising the concern there could be potential noncitizens who are restored to the rolls.

The judge rejected that argument: “I am not dealing with belief. I am dealing with evidence.”

The supposed threat of noncitizens voting in the 2024 election has been a fixation of Trump and Republicans. However, documented cases of noncitizens voting are extremely rare; a recent Georgia audit of the 8.2 million people on its rolls found just 20 registered noncitizens – only nine of whom had voted.

Virginia Gov. Glenn Youngkin, a Republican, touted his state’s efforts to purge noncitizens with an August executive order – just as the 90-day window began – and pledged the program would continue and take even more aggressive steps to remove suspected non-citizens.

Under the program, if a person told the department of motor vehicles via a checkbox that he or she was a noncitizen, or the Department of Motor Vehicles had other records indicating non-citizenship, Virginia election officials would send that person a notice giving them two weeks to affirm their citizenship or have their registration canceled. The program requires election officials to move forward with sending the notices and starting the purge process for individuals even if they have other information indicating those voters are in fact citizens. Naturalized citizens can sometimes be wrongly tagged as suspected noncitizens because of outdated government data.

Youngkin criticized the judge’s ruling Friday and said that the state will ask the Supreme Court to undo it “if necessary.”

“Let’s be clear about what just happened: only eleven days before a Presidential election, a federal judge ordered Virginia to reinstate over 1,500 individuals – who self-identified themselves as noncitizens – back onto the voter rolls,” the governor said in a statement that did not address the evidence that eligible voters had been removed as well.

At a daylong hearing Thursday, Charles Cooper, a lawyer for Virginia, argued that purges focused on non-citizens weren’t covered under the quiet period imposed by the National Voter Registration Act, and that Virginia’s procedures were not the kind of “systematic” program addressed in the federal law.

He also pointed to the opportunities that Virginia offered citizens to rectify false positives, which also include the ability to re-register at a polling place on Election Day.

On Friday, Giles said that the possibility that wrongly purged people could vote provisionally was not enough to salvage the program.

The state’s actions, she said, “have curtailed the right of eligible voters to cast their ballots in the same way that other eligible voters.”

Virginia’s opponents also argued that same-day registration would not fix the problem for purged eligible voters who sought to vote via an absentee ballot.

Brent Ferguson, representing immigrant activists and voting rights advocates who sued over the removal program, said Thursday that, using the list of purged voters that had been handed over to the challengers earlier this week, his team had already identified 18 citizens who had been wrongly removed.

This story has been updated with additional developments.

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