Virginia officials have asked the United States Supreme Court to block a lower court’s ruling that roughly 1,600 people purged from voter rolls by Gov. Glenn Youngkin’s executive order must be reinstated. Two lawsuits allege that Youngkin’s order violated federal law  by removing voters from rolls too close to Election Day, a claim the governor refutes by pointing to a 2006 state law as the basis of his action.

Virginia asks Supreme Court to block order to reinstate 1600 people stripped from voter rolls

The situation has raised questions on whether state lawmakers should consider amending that law for additional clarity and to avoid future legal disputes over how Virginia confirms voter registration shortly before elections. 

Youngkin has said repeatedly that his executive order was built on a 2006 state law for voter roll cleanups, which directs the Department of Motor Vehicles to send data to the State Board of Elections of people who failed to indicate U.S. citizenship in paperwork. There’s a process of notification and then purging of voters who fail to prove their citizenship, and in previous years, the process was done on a monthly basis. Youngkin’s order directed DMV and Elections Department officials to perform it daily.  

The lawsuits the state and Youngkin face say Youngkin’s order ran afoul of the National Voter Registration Act, which institutes a “quiet period” on such actions 90 days before an election. Several state lawmakers have signaled they agree with that allegation, including House Speaker Don Scott, D-Portsmouth, who previously told The Mercury “The reason that we have this 90-day rule is that we don’t want citizens to be accidentally removed.”

Privileges and Elections Committee chair Sen. Aaron Rouse, D-Virginia Beach, called Youngkin’s order “reckless” and alleged that it’s being used to “fire up the (Republican) base.”

“When you actually look at the issue of the matter, it’s the 90-day quiet period,” Rouse said. 

The courts will decide the matter concerning the legal challenges, John Aughenbaugh, a political science professor at Virginia Commonwealth University, said. 

But he added that the Youngkin administration “brought this on themselves” by issuing the order so close to the 90-day federal threshold.  

However, Aughenbaugh said, “I can understand why the Youngkin admin told Fox News ‘we didn’t think we were doing anything wrong,’” in citing the 2006 law. 

That measure was carried by former republican state Sen. Ken Cucinelli and signed by former Democratic Gov. Tim Kaine. At that time, Republican President George Bush’s Department of Justice had issued a memo that it didn’t object to the law. 

In the time since, no one has challenged it, until the two suits against Youngkin. 

An argument in Attorney General Jason Miyares’ Supreme Court filing notes confusion on when the federal 90-day law should overpower the 2006 state law. 

“The current confusion surrounding the NVRA makes the rules anything but clear,” Miyares’ petition reads. “States are unaware of when, or whether, they can remove noncitizens from the voter rolls. They need to know with certainty whether they can remove noncitizens at any point, only outside of the Quiet Period, or never.”

On Tuesday, the Republican National Committee and Republican Party of Virginia also filed a brief in support of the state’s SCOTUS request.

Virginia GOP calls on U.S. Supreme Court to reinstate Youngkin’s voter purge order

Rouse said there hasn’t yet been talk between himself and other members of the Privileges and Elections Committee about tweaking the 2006 law to spell out the 90-day threshold of the NVRA.

“We haven’t had those conversations,” he said. 

As to resolving any confusion, Sen. Bill Stanley, R-Franklin County, said that the state legislature broadly is always looking at ways past laws might need to be amended. 

“This might be one of those times,” he said. “The question then becomes ‘is there a bipartisan solution?” 

It might also come down to the question of how to prevent governors from overstepping or skirting federal law, as well as how to prevent presidential administrations from wading into state law, Aughenbaugh suspects. 

The debacle playing out on the national stage might prompt Virginia legislators to ask, “Did the Youngkin administration too broadly interpret the law? Do we want to rein-in gubernatorial administrations in the future?” Aughenbaugh posited. “Meanwhile, how do you revise the law so that future presidential administrations don’t single out a state for lawsuits two weeks before Election Day?”

Rouse said there’s valid reasons for those types of deliberations. 

“It’s more of a bigger picture with Governor Youngkin in terms of inciting fear and undermining our elections,” Rouse said of conversations he’s having with his fellow lawmakers. “We understand that this administration has been known to make mistakes.”

Rouse pointed to how the administration pulled out of ERIC, a multi-state data-sharing coalition meant to maintain voter roll accuracy — and how he vetoed legislation prompting Virginia’s return to it this year, along with other voting-related bills. The administration also mistakenly canceled over 3,000 people’s registrations last year, Rouse said. 

Can same-day voter registration and provisional ballots fix it?

Regardless of whether eligible voters were caught up in the recent purge or runs into other election-access issues, registrars have said that use of same-day registration and provisional ballots are an option that would allow them to vote on Election Day. Provisional ballots require follow-up after voting to verify a person’s address, citizenship status or other factors. 

It’s an argument Republican national and state leadership is making as a reason Youngkin’s order and the subsequent voter purges should stand.

“Even if a person entitled to vote were erroneously removed from the voter rolls and unable to respond to the Commonwealth’s outreach, they may still take advantage of same-day registration and cast a ballot,” the state’s request to the Supreme Court stated.  “No legal voters could or would be disenfranchised.”

Aughenbaugh doubts the nation’s highest court will grant Virginia’s request so close to the elections and  suspects people who have been purged may not have to resort to provisional ballots this year. 

“I don’t think there are enough (Supreme Court) justices that have the appetite to wade into that dispute less than a week before elections,” he said.