Appeals court keeps Virginia voter purge program blocked, setting up Supreme Court fight

(CNN) — A federal appeals court refused to reinstate a Virginia purge program aimed at culling suspected noncitizens from the…

(CNN) — A federal appeals court refused to reinstate a Virginia purge program aimed at culling suspected noncitizens from the voter rolls, leaving in place a lower court ruling that found the program likely violated a federal prohibition on “systematic” removals in the 90 days before an election.

The Sunday decision by the 4th US Circuit Court of Appeals sets up a Supreme Court fight over the purge program with early voting already underway in Virginia. Republicans all the way up to former President Donald Trump have seized on the case — a consolidation of lawsuits brought by the Biden administration and private groups — as they have pushed the narrative that voting by noncitizens poses a major threat to the election. It is in fact a very rare occurrence.

The new order from the 4th Circuit noted that Virginia officials are still allowed to prevent noncitizen voting “by canceling registrations on an individualized basis or prosecuting any noncitizen who votes.”

US District Judge Patricia Tolliver Giles, a Biden appointee, on Friday halted the program and ordered election officials to restore the registrations of the roughly 1,600 people who had been removed under the program during the so-called 90-day quiet period. Six hundred of those individuals were removed because they checked a box during a Department of Motor Vehicles interaction declaring them noncitizen and the other 1,000 were removed because of records in government databases that indicated noncitizenship.

Former President Donald Trump railed against the Friday 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 Circuit, and Trump, in his Truth Social post, said the “U.S. Supreme Court will hopefully fix it!”

At the heart of the dispute is whether that approach is the sort of “systematic” purge program Congress sought to freeze with the 90-day provision in the 1993 National Voter Registration Act, because of the tendency of those programs to remove eligible voters as well. Those suing Virginia say that within 36 hours of receiving a list of the purged voters from the state, they were able to confirm that at least 18 were in fact citizens who were eligible to vote.

In court filings with the 4th Circuit on Saturday, the voting rights groups and immigrant activists pointed to evidence that citizens will mistakenly check the noncitizen box on the DMV form because of its confusing design.

Virginia state officials countered that the National Voter Registration Act’s 90-day quiet period doesn’t apply to their purge program because it’s targeted at noncitizens, and they told the 4th Circuit that the judge’s order to reinstate the people to the rolls “will create confusion and make even-handed administration of the election much more difficult.”

The 4th Circuit order was handed down by appellate panel made up of two Obama appointees and a Biden appointee.

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