Shan Wu is a former federal prosecutor who served as counsel to Attorney General Janet Reno
The United States Supreme Court has sent a strong message of support to former President Trump’s MAGA-world by overturning a federal court of appeals decision that stopped the purging of Virginia voters.
In allowing the purge to go forward Chief Justice John Roberts’ high court utilized its tried-and-trusted weapon of the shadow docket to make the decision without the public accountability of having to explain its reasoning. Nonetheless, three liberal justices—Justices Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson—took the step of publicly dissenting, saying they would have let stand the decision of both the federal trial court and the U.S. Court of Appeals for the Fourth Circuit to stop the purge.
The case arose when Virginia Governor Glenn Youngkin, a Republican, ordered Virginia election officials to move aggressively against potential “non-citizen voters” by using Department of Motor Vehicle records to identify voters who may have checked a box self-identifying as non-citizens.
DMV records, however, can be inaccurate about this status and reporters have already found instances of Youngkin’s efforts resulting in the removal of Virginia voters based on alleged non-citizenship when they actually are U.S. citizens. Besides such errors as failing to check the citizen box or checking the wrong one, the form’s arguably confusing design encourages such errors.
Worse, Virginia officials also relied on a cross-check of supposed non-citizens in voter rolls with a database maintained by the Department of Homeland Security. That database is also often inaccurate so that a cross-reference can lead to false flagging of voters. For example, there are instances where a voter might have accurately identified as a non-citizen at the time of their DMV application but later have become a naturalized citizen who can vote even though they did not update their DMV paperwork.
Although a purged voter could still insist on casting a provisional ballot in person—a solution advocated by lawyers for Virginia—the problem with that solution is the voter may not learn that they have been purged in time to cast a provisional ballot.
Youngkin’s attack on the voter rolls also appears to be a blatant violation of the National Voter Registration Act of 1993 that prohibits any state efforts to systematically remove voters within 90 days of a federal election.
The Virginia program commenced within that prohibited red zone as Governor Youngkin ordered it into effect exactly 90 days before the election. This is why the federal trial court halted Youngkin’s plan and a federal court of appeals agreed with the stop. But Virginia sought emergency intervention by the Supreme Court, and was backed in that effort by numerous red states and Trump-aligned groups espousing “election integrity” concerns.
While the shadow docket tactic allows the six conservative justices who presumably voted together to hide their legal reasoning in allowing the purge to continue, one likely theory the high court could have relied upon is the so-called “Purcell principle” that federal courts should not challenge or approve of changes to election rules just prior to an election for fear of causing confusion and disruption with the election administration.
That principle makes little sense when applied here. Former U.S. Attorney Joyce Vance posted that in fact it is the high court’s ruling that violates the Purcell principle of non-judicial interference.
But the danger of the decision extends far beyond the Commonwealth of Virginia. As legendary constitutional scholar Laurence Tribe, of Harvard, posted on X, “This is a bad sign. It suggests an unchastened Supreme Court poised to help Trump suppress lawful votes on the flimsiest basis.”
The Republican party seems poised to continue to seek suppression of voters as one of its preferred strategies for winning elections and if the Supreme Court stands ready to aid them then it portends poorly for the future of our voting system.
If the justices that Professor Tribe refers to as the “Roberts Six” are ready to rely on a perverted interpretation of the Purcell principle then what they are really doing is telling Trump and the GOP that it’s best to save your election interference for the last minute.
