ALEXANDRIA, Va. – A federal judge on Friday ordered Virginia to restore more than 1,600 voter registrations that she said were illegally purged in the last two months in an effort to stop noncitizens from voting.
U.S. District Judge Patricia Giles granted an injunction request brought against Virginia election officials by the Justice Department, which claimed the voter registrations were wrongly canceled during a 90-day quiet period ahead of the November election that restricts states from making large-scale changes to their voter rolls.
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State officials said they will appeal. The ruling also prompted criticism from former President Donald Trump, who posted on social media that the ruling “is a totally unacceptable travesty,”
“Only U.S. Citizens should be allowed to vote,” Trump wrote.
In issuing her ruling Friday, Giles bristled at the suggestion she was restoring the voting rights of noncitizens. She said the state lacked proof that the purged voters were noncitizens but went ahead and canceled their registrations anyway in violation of federal law.
“I'm not dealing with beliefs,” she told a lawyer for Virginia when he again referred to those stricken from the rolls as noncitizens. “I'm dealing with evidence.”
The Justice Departmen t and private groups, including the League of Women Voters, said many of the 1,600 voters whose registrations were canceled were in fact citizens whose registrations were canceled because of bureaucratic errors or simple mistakes like a mischecked box on a form.
Justice Department lawyer Sejal Jhaveri said during an all-day injunction hearing Thursday in Alexandria, Virginia, that's precisely why federal law prevents states from implementing systematic changes to the voter rolls in the 90 days before an election, “to prevent the harm of having eligible voters removed in a period where it's hard to remedy.”
Giles said Friday that the state is not completely prohibited from removing noncitizens from the voting rolls during the 90-day quiet period, but that it must do so on an individualized basis rather than the automated, systematic program employed by the state.
State officials argued unsuccessfully that the canceled registrations followed careful procedures that targeted people who explicitly identified themselves as noncitizens to the Department of Motor Vehicles.
Charles Cooper, a lawyer for the state, said during arguments Thursday that the federal law was never intended to provide protections to noncitizens, who by definition can't vote in federal elections.
“Congress couldn't possibly have intended to prevent the removal ... of persons who were never eligible to vote in the first place,” Cooper argued.
The plaintiffs who brought the lawsuit, though, said that many people are wrongly identified as noncitizens by the DMV simply by checking the wrong box on a form. They were unable to identify exactly how many of the 1,600 purged voters are in fact citizens — Virginia only identified this week the names and addresses of the affected individuals in response to a court order — but provided anecdotal evidence of individuals whose registrations were wrongly canceled.
Cooper acknowledged that some of the 1,600 voters identified by the state as noncitizens may well be citizens, but he said restoring all of them to the rolls means that in all likelihood "there's going to hundreds of noncitizens back on those rolls. If a noncitizen votes, it cancels out a legal vote. And that is a harm," he said.
Virginia's Republican governor, Glenn Youngkin, issued an executive order in August requiring daily checks of DMV data against voter rolls to identify noncitizens.
State officials said any voter identified as a noncitizen was notified and given two weeks to dispute their disqualification before being removed. If they returned a form attesting to their citizenship, their registration would not be canceled.
Prior to Youngkin's executive order, the state did monthly checks of the voter rolls against DMV data, in accordance with a state law passed in 2006.
Youngkin said the Justice Department was wrongly targeting him for upholding a law that was followed by his predecessors, including Democrats, even if they didn't take the extra step of ordering daily checks as he did in his executive order.
“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.,” Youngkin said in a statement after Friday's hearing.
Giles questioned the timing of Youngkin's executive order, which was issued on Aug. 7, the very beginning of the 90-day quiet period required under federal law.
“It's not happenstance that this was announced exactly on the 90th day” of the quiet period, she said Friday from the bench.
Her injunction requires voter registrations be restored for all of those canceled as a result of Youngkin's executive order, and that letters be sent out within five days informing those voters of their restored status. The letters will also include a note of caution informing those individuals that if they are indeed noncitizens, that they are barred from casting ballots under federal law.
The plaintiffs had asked the judge to grant those voters an extension of the deadline to request absentee ballots, but Giles denied that request, saying it would result in confusion.
Virginia's Republican attorney general, Jason Miyares, issued a statement after Friday's hearing criticizing the ruling.
“It should never be illegal to remove an illegal voter,” he said. “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.”
U.S. Rep. Gerry Connolly, D-Va., who had alerted Justice Department officials to the removals. praised the ruling.
"Governor Youngkin’s purges have served only one purpose – to disenfranchise thousands of lawfully voting citizens of the Commonwealth. That stops today,” he said.
Nearly 6 million Virginians are registered to vote.
A similar lawsuit was filed in Alabama, and a federal judge there last week ordered the state to restore eligibility for more than 3,200 voters who had been deemed ineligible noncitizens. Testimony from state officials in that case showed that roughly 2,000 of the 3,251 voters who were made inactive were actually legally registered citizens.