The Department of Justice’s recent lawsuit against Virginia marked the second attempt in as many weeks from the federal government to stop states from cleaning their voter registration lists in the lead-up to the election.
The DOJ’s lawsuits against Virginia and Alabama came only after the department had also filed a lawsuit in Wisconsin and intervened in cases in Arizona and Ohio, an aggressive string that is illustrative of the Biden administration’s heavy hand in the voting process in the months and weeks before Election Day.
In Virginia and Alabama, the DOJ alleged that election officials’ efforts to remove noncitizens from their voter rolls were a violation of a National Voter Registration Act provision that restricts a state from systematically removing people from its voter registration list in the 90 days before an election.
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These actions “have likely confused, deterred, and removed U.S. citizens who are fully eligible to vote — the very scenario that Congress tried to prevent when it enacted the Quiet Period Provision,” DOJ attorneys wrote in their Virginia complaint.
Hans von Spakovsky, a senior legal fellow at the conservative Heritage Foundation, called the pair of lawsuits “an abusive misinterpretation of the law.” Von Spakovsky served as counsel in the DOJ’s Civil Rights Division and helped enforce the 1993 NVRA, also known as the “Motor Voter Act.”
“This interpretation of the law is frankly absurd,” von Spakovsky told the Washington Examiner, adding that the NVRA would be unconstitutional if it “required states to keep an alien on the voter rolls.”
The states share similar views. Gov. Glenn Youngkin (R-VA) criticized the DOJ in a statement, calling the lawsuit “a desperate attempt to attack the legitimacy of the elections in the commonwealth.”
The DOJ had alleged on Friday that Youngkin’s August directive that Virginia election officials continue removing possible noncitizens from its voter rolls meant the state would likely incidentally remove eligible voters during the NVRA’s 90-day quiet period. Those who were citizens who were removed would be able to correct their registration in time for the election. The directive came alongside Youngkin’s revelation that his state had removed 6,303 alleged noncitizens from its voter rolls since January 2022.
“With less than 30 days until the election, the Biden-Harris Department of Justice is filing an unprecedented lawsuit against me and the Commonwealth of Virginia for appropriately enforcing a 2006 law signed by Democrat [Sen.] Tim Kaine that requires Virginia to remove noncitizens from the voter rolls, a process that starts with someone declaring themselves a noncitizen and then registering to vote,” Youngkin said.
Attorneys in Alabama defended their state’s efforts in August to deactivate what Alabama Secretary of State Wes Allen found, which were 3,251 possible noncitizens on Alabama’s list of registered voters. The attorneys said Allen had discovered the registrants had alien numbers and that the federal government was uncooperative with Allen when he looked to it for assistance in determining their citizenship.
“Noncitizens are not eligible to vote, but they sometimes do. Alabama Secretary of State Wes Allen wants to deter that conduct,” the attorneys wrote in a court filing.
The scenario was, again, a situation in which those who were incidentally switched to “inactive” status but were citizens could cure their registration by proving their citizenship.
Noncitizen voting is against the law, and studies show prosecutions for it are extraordinarily rare, but polls show Republicans share widespread suspicions that instances of noncitizen voting could be going unchecked.
A hearing in the Alabama case is set for Tuesday, while Virginia is set to respond to its lawsuit in court in the coming days.
Meanwhile, cleaning voter rolls is not the only activity the DOJ has been targeting.
In Wisconsin, the department alleged in September that two towns did not have voting equipment that was accessible to handicapped voters. The suit came after an election chief in one of the towns expressed distrust over electronic voting machines and opted instead to use paper ballots only.
In Ohio, the DOJ intervened in a lawsuit over the summer, arguing people with “blindness, disability, or inability to read or write” should be able to seek voting assistance from anyone they choose and that Ohio was unlawfully placing restrictions on whom such voters could tap to help them.
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In Arizona, a top battleground and border state, the DOJ intervened in a case that was elevated to the U.S. Supreme Court in which Republicans sought to prevent tens of thousands of Arizonans who had registered to vote but had not provided documented proof of citizenship from participating in the presidential election.
The DOJ fought against Republicans, arguing they were pushing for more guardrails than what federal law permits. The Supreme Court ruled partially in Republicans’ favor.