Virginia wins – noncitizens excluded

This morning the case now called Virginia Coalition for Immigration Rights v. Beals came briefly before the Supreme Court. The U.S. District Court for the Eastern District of Virginia had ordered Virginia officials to reinstate about 1600 registered voters. Those voters had indicated, on their registration applications, that they were not citizens of the United States. Now the Supreme Court has stayed that order, while the case goes through an interlocutory appeal process. This is a key victory for election integrity – because the chances of any judge ordering reinstatement now are virtually nil.

How did Virginia come to this pass?

On August 7, 2024, Gov. Glenn Youngkin (R-Va.) issued Executive Order 35, a comprehensive election-integrity order. In that order he noted that the State had removed 6,303 noncitizen names from the voter rolls. The governor ordered Daily List Updates, requiring the participation of all unit registrars. (A unit in Virginia parlance is a county or an independent city.) Anyone, registering to vote, answering “No” to the question “Are you a U.S. citizen?” is presumed not to be a citizen. The registrars send Notices of Intent to Cancel to the affected voters, and give them 14 days to file Affirmations of Citizenship. All such Notices of Intent include Affirmation of Citizenship forms and return envelopes. If they don’t answer within the 14 days, they’re out.

The 6,303 noncitizens that the Virginia Division of Elections had removed before August 7, are not at issue here. But, since August 7, the Division has removed 1600 more names. The problem: August 7 is exactly ninety days ahead of November 5, the day of the Election of 2024. Under the National Voter Registration Act of 1993 (Bill Clinton’s “Motor Voter Act”), State Divisions of Elections may not remove anyone wholesale from the voter rolls within ninety days of an election. This “Quiet Period” does not specify how to handle noncitizens whose names appear on those rolls.

Voting by aliens

But the “Voting by Aliens Act” (18 USC 611) specifies that no person, except a citizen of the United States, may vote in federal elections. So federal law seems to say in one context, that States may not de-register anyone within the ninety days, and in another, that they may not retain anyone except a citizen on those rolls. Neither law referenced the other – and never did anyone check for a conflict!

On October 11, the Justice Department sued the State of Virginia, the Virginia Department of Elections, and Susan Beals, Commissioner of Elections. United States v. Beals, case no. 1:24-cv-01807, in the U.S. District Court for the Eastern District of Virginia. The Department alleged violation of the Motor Voter Act – and said nothing about the Voting by Aliens Act. The Virginia Attorney General tried to have the case transferred out of the Alexandria Division and to the Richmond Division. (See the docket, complaint, brief for injunction, proposed order, and brief for transfer.)

That transfer didn’t fly. On October 18, Judge Patricia Tolliver Giles, a Biden appointee, consolidated the government’s case with another. Virginia Coalition for Immigrant Rights v. Beals, case no. 1:24-cv-01778, in the same Division, before the same Judge. These plaintiffs also moved for a preliminary injunction.(See docket, complaint, brief in support of injunction, and response in opposition.) Judge Giles denied the motion to transfer the case out of her court on October 21.

Plaintiffs’ arguments

The plaintiffs, in their complaints, never argued that noncitizens had any right to stay on Virginia’s voter rolls. Instead, they argued that:

1. Noncitizen registration is “vanishingly rare,” and
2. Actual naturalized citizens are getting thrown off the voter rolls, without recourse.

As Attorney General Jason Miyares argues, neither statement is correct. 6,303 noncitizens are not “vanishing.” Any one who is a citizen has at least two opportunities to straighten out the confusion with his unit registrar. If they answer a Notice of Intent to Cancel within 14 days, they stay on the rolls. But if they wait too long to respond, they can still re-register to vote. The Justice Department alleged that some voters had done so. But that vitiates their argument about irreparable harm. If those voters re-registered, why couldn’t any other voter so affected also re-register?

Virginia also offers same-day registration. Any Chief of Precinct carries voter registration applications in his “portable office.” Any voter needing to fill one out, may then vote a provisional ballot. The Chief, or his designated officer, notes on the provisional-ballot form the reason for casting a provisional ballot. “Voter not registered” is a common reason, and all unit registrars and Boards of Election know how to handle it.

Note: your editor knows this because he is a Chief of Precinct for the Election of 2024.

Virginia receives an injunction

On October 25, 2024, Judge Giles handed down her injunction. Comparison of the injunction to the Proposed Order from the Justice Department clearly shows that the plaintiffs didn’t get everything they wanted. (The Proposed Order by VCIR lies behind a paywall.) The one thing the DOJ and VCIR didn’t get, was an injunction against contacting suspected noncitizen voters to tell them to submit requests for removal. Those communications would still have been allowed. But DOJ and VCIR got everything else:

1. Stop the Daily List review program, except as to de-registering a voter upon request, criminal conviction, mental incapacity, or death,
2. Reinstate all voters so removed, except voters requesting removal, disqualified by reason of criminal conviction or mental incapacity, or dead,
3. And within five days:
   1. Guide all unit registrars to restore to the names to their own lists,
   2. Send letters to all voters so removed, apologizing for the removal (except that if they are not citizens, they may not vote),
   3. Post templates of the apology letter and issue a press release to announce the order,
   4. Educate the public, and especially Officers of Election, that reinstated voters may vote regular ballots, and
   5. Submit to the Court a list of all canceled voters.

The court further ordered that it would continue to allow individual de-registration, and individualized investigations of suspected noncitizen voters. Finally, the injunction was to terminate the day after the election.

Appeals process

The State of Virginia appealed the injunction immediately and filed a motion for stay of the injunction. In a rare Sunday session, a three-judge panel denied the stay, except: it stayed the part of the injunction ordering the “tracking” of OOE training, as to the cessation of the Daily List review program. The case came before Chief Judge Albert Diaz (an Obama appointee) and Judges Stephanie Thacker (Obama) and Toby Heytens (Biden). All three judges voted to affirm the injunction. (See docket, motion for stay, and denial of stay.)

But the Supreme Court would see things differently. Beals v. Virginia Coalition for Immigrant Rights, Application no. 24A407. (See docket and application.) In their 41-page application, Attorney General Miyares argued that the Quiet Period in the Motor Voter Act cannot apply to noncitizens. These, said General Miyares, didn’t belong on the voter rolls to begin with. He also cited the Purcell Doctrine, which forbids the federal courts to “enjoin… the enforcement of state election laws with an election pending.” And he cited 18 USC 611, saying if those noncitizens remain enrolled, they remain tempted to commit a federal felony.

He also cited one consideration Gov. Youngkin has publicly decried: that the plaintiffs waited so long to sue. That in itself is salient. Chiefs of Precinct are due to pick up their Electronic Poll Books on Monday, November 4. DOJ and VCIR must have thought the State would give up and put those names back on, given the tight deadline.

The Supreme Court acts

Chief Justice John Roberts, as supervising Justice for the Fourth Circuit, immediately asked for response and friend-of-the-court briefs. The response came yesterday afternoon, but the friend-of-the-court briefs started coming immediately. Most of them were in support of the application.

This morning, Roberts brought the application, the response, and the friend-of-the-court briefs, before the Court. The Court granted the stay. The Justices have, thus far, not published any “detached opinions.” But Justices Ketanji Brown Jackson, Elena Kagan, and Sonia Sotomayor all put themselves on record against the application. One may infer that Roberts and the rest of his Associates (Samuel A. Alito, Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh, and Clarence Thomas) all voted in favor.

The stay is good pending the appeal in the Fourth Circuit, and any petition for review that anyone might file. Given the calendar, the stay means that those suspected noncitizen names will stay off the rolls. This is also a clear signal that the Supreme Court would grant review if the Fourth Circuit actually rendered a decision against the State.

Therefore, Chiefs will let anyone removed from the rolls, file a same-day registration application and vote a provisional ballot. If such a voter is indeed a U.S. citizen, his vote will count. Unit Boards of Election will adjudicate all such questions, as they routinely do for provisional ballots.

Virginia registrars are “hit or miss”

The attitudes of unit registrars in Virginia seem to vary with party affiliation, ideology, or basic situational awareness, as regards their diligence in enforcing Virginia election law, or willingness to do so. Your editor serves under a willing and diligent registrar. But John Mills at The Gateway Pundit, in discussing this case yesterday, lives in a county with a not-so-diligent registrar:

My own Election Registrar in Prince William County had no responsive “records” to demonstrate they were following the Governor’s August 7, 2024, Executive Order nor that they had a process to ensure Motor Voter names were authenticated before being placed on the election rolls. In 2019 I did a Freedom of Information Act Request and found that at a minimum, 6% of the names on the election rolls in my county included unlawful voters. Applying other factors, the number of unlawful voters on the rolls was likely 12% or greater.

County Officials most often called “Registrars” are normally the responsible, legal, sworn, constitutional official for ensuring a voter is a lawful voter. Yet my Registrar, and likely many of the 3,300 or so County Registrars across the country appear to be presuming citizenship validation is taking [place] somewhere else in their state bureaucracy. John Mills

From 2014 to 2022, Virginia had two Democratic governors: Terence McAuliffe (the Terence McAuliffe, who found a house in New York for Hillary Clinton), and Ralph Northam. Both men are dedicated Democratic Party ideologues, who routinely played fast and loose with election law. In fact, they supplied campaign materials to some registrars (like the one in Fairfax County), to include with absentee ballots. Such men would gladly wink and nod at the registration of noncitizens to vote. That then-Gov. Tim Kaine, another Democrat, signed the noncitizen-removal provision into law in 2006, doesn’t seem to have “registered” with either McAuliffe or Northam.

Glenn Youngkin is made of sterner stuff than either man; that’s why he removed 6,303 noncitizens from the rolls. But, as John Mills also mentioned, no federal official ever noticed the contradiction between the Motor Voter and Voting by Aliens laws.

Conclusion

Contradictions in law, are not supposed to exist. Furthermore, the United States Code contains no “Abrogation Principle” that automatically defaults to the most recently enacted provision. New Acts of Congress can change how the Code reads but do not affect how courts are to interpret it.

Furthermore, several Democratic Presidents, especially Obama and Biden, have appointed judges who treat the law as

a mere thing of wax in the hands of the judiciary which they may twist and shape into any form they please. Thomas Jefferson, Letter to Spencer Roane.

CNAV has observed before that the Liberal Bloc on the Supreme Court treat the Court as a Court of equity, not legal review. This should be grounds for removal from the bench on impeachment for, and conviction of, infidelity to the Constitution. And not to the Constitution only, but to the very principle of the law as a guarantor of rights. Congress makes federal law, and federal courts are supposed to interpret it. But Judges Heytens, Thacker, and Diaz presumed to set aside one part of the United States Code completely. Justices Jackson, Kagan, and Sotomayor tried to back them up on this “hit” against the Code. Happily, six of their colleagues overruled them, as they should have.