Virginia’s Voter Purge: The Latest Development in a Trend of Restrictive Election Laws

In the leadup to the highly anticipated 2024 presidential election,  Virginia Republican Governor Glenn Youngkin's administration illegally purged more than 1,600 voters , alleging that many of them were ineligible to vote because they were non-citizens. This purge was primarily informed by a flawed process of checking voter rolls against records from the Department of Motor Vehicles. 

The National Voter Registration Act of 1993, also known as the “NVRA” or “Motor Voter Act,” “prohibits states from conducting ‘systematic’ list maintenance within 90 days of a federal election.” This law acts as a safeguard against eligible voters being wrongfully removed from the voter rolls after it is too late for them to re-register. Governor Youngkin issued his voter purge order on August 7, the 90th day before the presidential election on November 5, putting him at odds with federal law. According to Project Democracy, this “election-subversion scheme” actually ended up removing eligible Virginia voters, rather than non-citizens, from the voter rolls: “Virginia has not presented any evidence of noncitizens participating in elections. Because there is none.” Therefore, many believe that this represents a recent development in wider efforts to destabilize public trust in the integrity of presidential elections.

Although Virginia permits same-day registration, which allows voters whose registration has been revoked to re-register and cast their vote on election day, purging voters so close to the election is illegal. Moreover, it is particularly concerning because voters were not notified that they had been purged. For instance, Northern Virginia College student Fatima Bashir, who was born in Pakistan but obtained US citizenship last year, “didn’t realize she had been purged from Virginia’s voter registration rolls until she received a call from CNN.” Another Virginia resident, Abdullah Al Mosawa, didn’t realize he had been purged from the voter rolls until he saw a TikTok about the voter purge, leading him to do his own research. Born in Yemen, he has been a US citizen for about six years. Even lifelong Virginia residents were affected by the purge—Virginia resident Rina Shaw told the Associated Press that she was born in the commonwealth, lived there for her whole life, and never even left the United States, but was nonetheless purged, most likely due to a paperwork error while getting her learner’s permit.

Finding the voter purge unlawful, the Department of Justice sued the Commonwealth of Virginia. While an initial emergency federal court ruling required the state to restore all the purged voters’ registration status, the Supreme Court stood by Governor Youngkin and the purge. Despite the dissents of the three liberal justices, the Supreme Court order granted the Youngkin administration's emergency appeal. The Supreme Court choosing to stand by Virginia in disenfranchising voters en masse is significant not only with respect to the election, but also because it holds important implications for election laws going forward.

The National Voter Registration Act outlines voter registration requirements for federal elections, with the intention of “[enhancing] voting opportunities for every American.” According to the Department of Justice (DOJ), the NVRA empowers the DOJ to enforce its requirements via civil suits in federal courts and also delegates certain responsibilities to the Federal Election Commission (FEC). There have been numerous instances where the DOJ brought litigation against states and localities in order to enforce compliance with the NVRA, including past cases concerning California, Illinois, Michigan, Mississippi, Pennsylvania, New York, South Carolina, Vermont, and even Virginia. Therefore, the recent conflict over Virginia’s voter purge is hardly unique in this regard. Rather, the novel aspect of this situation is the Supreme Court’s support for the purge. 

The Supreme Court issued a “brief unsigned order” sustaining Virginia’s appeal to U.S. District Judge Patricia Tolliver Giles’s ruling, which required Virginia to cease the systematic voter purge program. The Supreme Court chose to stand by the Youngkin administration’s arguments that their voter purge was not prohibited by the NVRA since they ostensibly removed noncitizens (who were therefore ineligible to vote) and utilized an “individualized process” rather than a “systematic” program. They also tried to invalidate Judge Giles’s order by arguing that it violated the Purcell principle, a doctrine established in Purcell v. Gonzalez (2006) which discourages courts from changing election rules right before elections in order to avoid confusing voters and election officials. 

However, U.S. Solicitor General Elizabeth Prelogar refuted these points. She pointed out that since the NVRA’s rule regarding last-minute voter purges only applies to the 90 days leading up to an election, any challenges can only be filed in the month leading up to the election as well. Additionally, she argued that Virginia’s voter-purge program was indeed a “systematic” program because “Virginia’s DMV simply created lists of suspected noncitizens, which were then compared electronically to information in other agency databases, without any real opportunity for case-by-case considerations.” Despite this, the Supreme Court granted Virginia’s appeal, without providing their rationale (as is the norm for emergency appeals). 

This development joins a slew of increasingly restrictive election laws enacted in the past year. For instance, at least nine states have passed 18 restrictive voting laws between January and September 2024, representing the “second-highest level of output in any year since the Brennan Center began tracking such legislation over a decade ago (the highest number was in 2021).” This is part of a larger trend, as more than 30 states have enacted 78 restrictive laws related to voting and elections between the 2020 and 2024 presidential elections. This could perhaps be traced back to Shelby County v. Holder (2013), a critical case in the world of election law that held that Section 4 of the Voting Rights Act is unconstitutional.

To provide some context, the Voting Rights Act of 1965 was enacted during the Civil Rights Movement in an attempt to combat voter discrimination and therefore ensure political equality for people of color in the South who had suffered from Jim Crow policies since the conclusion of the Civil War. Section 5 of the Voting Rights Act bars districts with a record of racial discrimination from changing their election laws or procedures without official permission, known as “preclearance,” from the Department of Justice or a court. Section 4(b) specifies that districts that had a voting test in place as of November 1, 1964, as well as less than 50% voter turnout for the 1964 presidential election, would be required to prove that any changes to their voting laws would not be intended to have or have a negative effect on an individual’s right to vote based on their race. 

In 2013, Shelby County, Alabama argued that Sections 5 and 4(b) were unconstitutional, and demanded a “permanent injunction against their enforcement.” The case went all the way up to the Supreme Court, where the Court ruled in a contentious 5-4 decision that Section 4 of the Voting Rights Act was indeed unconstitutional because it represented a “violation of the power to regulate elections that the Constitution reserves for the states,” and that the conditions and formula used to determine whether a state would be required to obtain preclearance were outdated. 

In little more than a decade since the Shelby County decision, “at least 31 states have enacted 114 restrictive voting laws.” Perhaps more concerning, over two-thirds of these 114 total laws have been enacted since the 2020 election, showing a marked acceleration in restrictive voting legislation in recent years. These laws include measures like increasing restrictions on absentee voting, which could negatively affect turnout for voters with disabilities; requiring voters to provide new documentation or identification to register or vote at the polls; and even criminalizing the act of witnessing more than one absentee ballot certificate for a non-immediate family member. 

This has likely been fueled by the numerous allegations of voter fraud following the 2020 election. Although the Covid-19 pandemic rendered the 2020 election quite novel due to the widespread use of mail-in ballots and unusually high voter turnout, these allegations have been widely debunked. The Virginia voter purge fits in with wider efforts to delegitimize elections by calling their integrity into question, as “people unhappy with the results can then point to the lies spread before the election as ‘proof’ of wrongdoing.” Out of the 1,600 voters removed from the voter rolls, Virginia has yet to identify a single veritable non-citizen. Instead, any irregularities were likely due to perfectly eligible voters missing a question or checking the wrong box while registering at the Department of Vehicles, or failing to update their citizenship status. These are clerical errors rather than bona fide voter fraud. This was the case in a similar voter purge conducted this August in Alabama: not one of more than 3,000 people removed from the voter rolls were actually found to be non-citizens. 

According to the Brennan Center for Justice, studies and audits show that fraudulent voting by non-citizens is actually “extremely rare”—for instance, only about one in a million in the 2016 election. This can be explained by the fact that there are already federal and state laws preventing non-citizens from registering to vote, with procedures like regular list maintenance programs put into place to enforce them. However, the recent Virginia and Alabama voter purges deviated from this regular list maintenance by conducting systematic voter removals within the 90-day quiet period before the elections, during which any removals must be “specific, individual determinations,” rather than “mass database matching and form letters.” This raises concerns over the eligible voters that Virginia effectively disenfranchised. 

In summary, Virginia’s voter purge marks an important development in the deluge of restrictive voting laws since Shelby County v. Holder, underpinned by increasing distrust in the integrity of the American election system. It is particularly noteworthy because unlike the Alabama voter purge, the Supreme Court stood by Virginia and allowed 1,600 people to be removed from the voter rolls, including countless eligible voters. While this purge, as well as other efforts to catch voter fraud, may be intended to bolster election integrity, they may, in practice, delegitimize the election system by preventing eligible voters from exercising their right and responsibility to vote and participate in their democracy.

Aditi Bhattacharjya is a first-year studying Economics and International and Public Affairs at Brown University. She is a staff writer for the Brown Undergraduate Law Review and can be reached at aditi_bhattacharjya@brown.edu.

Ashley Park is a first-year studying International and Public Affairs and Political Science at Brown University. She is an editor for the Brown Undergraduate Law Review and can be reached at ashley_h_park@brown.edu