EPEC NEWS

In a fast-moving case that upended Virginia’s ongoing early voting period, Virginia Attorney General Jason Miyares filed an emergency appeal to the U.S. Supreme Court On Oct. 28 after the Fourth Circuit sided with the Dept. of Justice and leftwing progressive groups and ordered the Dept. of Elections to put individuals who declared themselves noncitizens back on the voter rolls.

The Fourth Circuit’s ruling was delivered Sunday, Oct. 27, 2024, and rejected Virginia’s appeal to reverse a prior ruling that says Virginia must “re-enroll” some 1,500 individuals who had attested they were noncitizens and removed, claiming such maintenance does not comply with the National Voter Registration Act (NVRA).

The ruling on Friday, less than two weeks from the 2024 Presidential Election and in the midst of Virginia’s early voting, sparked an uproar and national media coverage after Judge Patricia Tolliver Giles, a Biden appointee, sided with progressive left groups who sued to allow noncitizens to remain on voter rolls through the Nov. 5th election.

The Dept. of Justice, where Judge Giles also worked, filed a similar lawsuit as the League of Women Voters Oct. 11.

Gov. Glenn Youngkin vowed to appeal to the United States Supreme Court if necessary. And today, Virginia did just that.

“Let’s be clear about what just happened,” Youngkin said in a statement Friday.

“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. Almost all these individuals had previously presented immigration documents confirming their noncitizen status, a fact recently verified by federal authorities.

“This is a Virginia law passed in 2006, signed by then-Governor Tim Kaine, that mandates certain procedures to remove noncitizens from the voter rolls, with safeguards in place to affirm citizenship before removal–and the ultimate failsafe of same-day registration for U.S. citizens to cast a provisional ballot. This law has been applied in every Presidential election by Republicans and Democrats since enacted 18 years ago.”

“Virginia will immediately petition the Fourth Circuit Court of Appeals and, if necessary, the U.S. Supreme Court, for an emergency stay of the injunction.”

Per Ballotpedia, Chief Justice John Roberts oversees the Fourth Circuit.

Judge Giles’ order also says Virginia can otherwise follow state and federal statute, including the ability to “cancel the voter registration of noncitizens through individualized review.”

Giles added: “Nor does this Order limit Defendants’ authority or ability to investigate noncitizens who register to vote or who vote in Virginia’s elections.”

As of Saturday, the number of provisional ballots cast during early voting was 3,975, an explosion of 420% in just one week when the provisional tally was 764 — already a spike — in the same week the court cases were being heard.

Provisional ballots, which are part of the post-election canvas, represent less than 1% of about 1.4 million “countable” ballots in the early voting tally as of Oct. 26th. Same-day registration began in Virginia in 2022. Ballots cast under SDR are also considered provisional and reviewed when electoral boards canvas the tallies after Nov 5th.

See the summary data output of early voting by ballot types here.

As EPEC Team has reported, the timing of the lawsuit has experts calling foul play over politics.

The “plain text of the [NVRA] does not require states to keep an individual registered who was never eligible to be registered in the first place,” writes election-law veteran Hans Von Spakovsky in a legal brief for the Heritage Foundation.

Any interpretation of the NVRA to keep noncitizens on the voter rolls — when federal and state laws prohibit it, “would render the NVRA unconstitutional,” he writes.

Andy McCarthy, a former DOJ prosecutor, also took issue with the DOJ’s actions, writing in National Review:

Virginia law requires election officials to challenge any voter they suspect of being an illegal alien. Those challenged may still cast ballots, but they must sign a statement under oath attesting that they are U.S. citizens — a requirement completely consistent with federal law.

Virginia has a “compelling interest in following its law. When noncitizens vote, the votes of citizens in the state are canceled out and collectively diluted, a denial of their civil rights.”

Yes, Virginia, Noncitizens are Voting

In its complaint, the DOJ claims “there is no evidence of widespread voting” by noncitizens in elections.

Voting records of Virginia show that noncitizens have a history of casting ballots before they “self-declare” as noncitizens and are removed.

One might argue that a few thousand citizens whose voices are canceled by noncitizens voting illegally would be of concern to the DOJ’s Civil Rights division.

EPEC has documented this for months.

Chief Technology Officer and Executive Director, Jon Lareau, has documented hundreds of noncitizens — who have attested in writing they are noncitizens — that have cast close to 1,300 ballots at least since 2019.

As Lareau wrote recently, “using the data provided by ELECT, we have identified at least 3,533 unique registrations that were identified as ‘Declared Non-Citizen’ and removed by ELECT from the voter rolls since May of 2023.”

These numbers do not include individuals who were reinstated for any potential error.

“In all, the data show there were 1,296 associated ballots cast identified since Feb of 2019. There were an additional 2 non-citizen registrations and ballots as per the Daily Absentee List (DAL) data, that were not contained in the Voter History data. 

“The total number of identified non-citizen ballots cast is therefore 1,298 by 539 registrants when combining unique VHL and DAL identifications.”

Voting illegally is a Class 6 felony in Virginia.

In August, Gov. Youngkin announced that ELECT had removed over 6,300 noncitizens from its rolls over a two-year period starting in 2021.

The removals followed an individualized system of cross-referencing legal presence codes from the Dept. of Motor Vehicles as well as federal databases on naturalization status. Individuals are contacted by mail (and email if possible), asking them to attest under penalty of perjury or deportation they are citizens.

If they fail to respond, they are removed within 14 days. If they are removed in error, they can re-register.

Since Gov. Youngkin’s Executive Order #35 that reminded election officials of their duty to refer potential felony voting violations to law enforcement, Virginia localities have been taking action.

Fairfax County voted to send over 900 individuals removed from the voter rolls to the Attorney General and the Commonwealth Attorney for investigation.

Arlington County election officials also made referrals to law enforcement after noncitizens were removed from its rolls.

Other localities are investigating noncitizens who leave a voting history before they are removed from the rolls as “declared noncitizens.”

Within a few weeks of the law enforcement referrals, left-wing progressive groups launched a lawsuit against the Youngkin administration. Days later, the DOJ filed a nearly identical lawsuit.

It should never be illegal to remove an illegal voter, Miyares said in a statement Friday:

“More concerning is the open practice by the Biden-Harris administration to weaponize the legal system against the enemies of so-called progress. That is the definition of lawfare. To openly choose weaponization over good process and lawfare over integrity isn’t democracy: it’s bullying, pure and simple, and I always stand up to bullies.

Although the Fourth Circuit is seen as very liberal, the case law is not on the DOJ’s side as Von Spakovsky notes:

In 2012, in Arcia v. Detzner, a federal case out of the Southern District of Florida, Judge William Zloch said [a similar claim as the DOJ’s] would “produce an absurd result.”

A state, in effect, would be blocked from removing “from its voting rolls minors, fictitious individuals, individuals who misrepresent their residence in the state, and non-citizens.” 

The 90-day deadline, the judge decided, “simply does not apply to an improperly registered noncitizen.

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