Amicus Curiae Brief — Susan Beals, Commissioner, et al., Applicants v. Virginia Coalition for Immigrant Rights, et al.

No. 24A407

In the Supreme Court of the United States

SUSAN BEALS, IN HER OFFICIAL CAPACITY AS VIRGINIA COMMISSIONER OF ELECTIONS,

ET AL.,

Applicants,

v.

VIRGINIA COALITION FOR IMMIGRANT RIGHTS, ET AL.,

Respondents.

ON EMERGENCY APPLICATION FOR STAY PENDING APPEAL FROM THE

U.S. COURT OF APPEALS FOR THE FOURTH CIRCUIT

Brief of the Honest Elections Project as Amicus Curiae in Support of

Applicants

Jason Brett Torchinsky

Counsel of Record

HOLTZMAN VOGEL BARAN

TORCHINSKY & JOSEFIAK, PLLC

2300 N Street, NW, Ste. 643

Washington, DC 20037

(202) 737-8808 (telephone)

(540) 341-8809 (facsimile)

Counsel for Amicus Curiae

the Honest Elections Project

Additional Counsel Listed in Signature Block

TABLE OF CONTENTS

TABLE OF CONTENTS ................................................................................................. i

TABLE OF AUTHORITIES........................................................................................... ii

INTEREST OF AMICUS CURIAE ............................................................................... 1

INTRODUCTION ........................................................................................................... 1

ARGUMENT ................................................................................................................... 3

I.

The NVRA Does Not Govern Removal of Non-Citizens from Voter Rolls ........ 3

A. Congress Did Not Intend To Limit The States’ Ability to Remove NonCitizens from Voter Rolls ............................................................................. 3

B. The District Court’s Ruling Undermines Election Law and Yields Perverse

Policy Results ................................................................................................ 8

II. Even if the NVRA Governed Non-citizen Removals, Virginia Removed Them

Individually—not Systematically—and Thus Did Not Violate the NVRA’s Quiet

Period......................................................................................................................... 10

III.

Plaintiffs Unjustifiably Delayed This Lawsuit............................................. 12

IV.

Virginia’s Extensive Safeguards Undermine Plaintiffs’ Harms.................. 16

CONCLUSION ............................................................................................................. 21

i

TABLE OF AUTHORITIES

Cases

Arcia v. Sec’y of Fla.,

772 F.3d 1335 (11th Cir. 2014) .................................................................. 5, 7, 10, 11

Bell v. Marinko,

367 F.3d 588 (6th Cir. 2004) .............................................................................. 5, 6, 8

Bluman v. FEC,

800 F. Supp. 2d 281 (D.D.C. 2011) ............................................................................ 8

Crawford v. Marion Cnty. Election Bd.,

553 U. S. 181 (2008) ................................................................................................. 19

Gray v. Sanders,

372 U. S. 368 (1963) ................................................................................................... 8

Hooper v. California,

155 U. S. 648 (1895) ................................................................................................... 8

League of Women Voters of N.C. v. North Carolina,

769 F.3d 224 (4th Cir. 2014) .................................................................................... 20

Merrill v. Milligan,

142 S. Ct. 879 (2022) ................................................................................ 1, 13, 14, 15

Pub. Interest Legal Found. v. N.C. State Bd. of Elections,

996 F.3d 257 (4th Cir. 2021) ...................................................................................... 7

Purcell v. Gonzalez,

549 U. S. 1 (2006) ........................................................................................... 8, 14, 16

RNC v. DNC,

589 U. S. 423 (2020) ................................................................................................. 16

United States v. Florida,

870 F. Supp. 2d 1346 (N.D. Fla. 2012) .................................................................. 5, 6

United States v. X-Citement Video,

513 U. S. 64 (1994) ..................................................................................................... 8

Warner Chappell Music, Inc. v. Nealy,

601 U. S. 366 (2024) ................................................................................................. 14

ii

Statutes

52 U.S.C. § 20501 .................................................................................................... 4, 12

52 U.S.C. § 20504 .......................................................................................................... 6

52 U.S.C. § 20507 .......................................................................................... 4, 5, 10, 11

52 U.S.C. § 21082 .................................................................................................. 18, 19

52 U.S.C. § 21083 ...................................................................................................... 4, 5

52 U.S.C. § 8 .................................................................................................................. 4

Va. Code Ann. § 24.2-416 .............................................................................................. 9

Va. Code Ann. § 24.2-420.1 ..................................................................................... 9, 16

Va. Code Ann. § 24.2-427 ...................................................................................... 12, 16

Va. Code Ann. § 24.2-653 ............................................................................................ 17

Va. Code Ann. § 24.2-653.01 ....................................................................................... 18

iii

INTEREST OF AMICUS CURIAE1

The Honest Elections Project is a nonpartisan organization devoted to

supporting the right of every lawful voter to participate in free and honest elections.

Through public engagement, advocacy, and public-interest litigation, the Project

defends fair and reasonable measures that legislatures put in place to protect the

integrity of voting. The Project supports commonsense voting rules and opposes

efforts to reshape elections for partisan gain. It has a significant interest in this case,

as it implicates the states’ preeminent role in setting the rules for elections.

INTRODUCTION

This Court should stay the district court’s preliminary injunction, which—only

days away from a general election—requires Virginia to upend the status quo and

reinstate non-citizens to its voter rolls. See Merrill v. Milligan, 142 S. Ct. 879, 880–

81 (2022) (it is a “bedrock tenet of election law” that requires “[w]hen an election is

close at hand, the rules of the road must be clear and settled”). But those individuals

were properly removed based on their own documentation indicating their noncitizenship or because they voluntarily submitted forms to the DMV that they were

not citizens. In doing so, the district court’s extraordinary ruling needlessly

undermines democracy and public faith in the electoral process; and it does so based

on critical legal errors. Amicus respectfully submits that the legal and practical

consequences of the ruling warrant an emergency stay.

1 Pursuant to this Court’s Rule 37.6, counsel for amicus curiae certify that this brief was not authored

in whole or in part by counsel for any party and that no person or entity other than amicus curiae or

its counsel has made a monetary contribution to the preparation or submission of this brief. The parties

have consented to its filing.

1

First, the preliminary injunction will undermine the electoral process by

vitiating safeguards that prevent non-citizens from voting in U.S. elections. This was

not what Congress intended in enacting the National Voter Registration Act of 1993

(“NVRA”). Contrary to the district court’s analysis, the NVRA does not apply to

removal of non-citizens from voter rolls at all as the text, history, and purpose of the

NVRA all make clear.

Second, even assuming the NVRA applied to removal of non-citizens from voter

rolls, the process at issue here was not a “systematic” program subject to the NVRA’s

90-day “Quiet Period.” The process was instead individualized, as it was based on

each person’s own individualized documentation indicating his non-citizenship or his

choice to check a box affirming that he is not a citizen, and then followed by a manual

and discretionary review by the local registrar. This highly tailored process cannot be

deemed intentionally “systematic” merely because an initial step involved a computer

for threshold matching of improper non-citizen registrations. Nor does it make

practical sense to categorize such processes as such. Under Plaintiffs’ illogical

interpretation, any review within 90 days of an election would be permissible only if

human reviewers had screened Virginia’s 6.3 million registered voters themselves—

something that would take years of work. Congress intended no such absurdity.

Third, Plaintiffs unjustifiably delayed the suit. Governor Youngkin announced

the challenged program in August, but Plaintiffs waited to file suit until October 7—

mere weeks before the 2024 General Election. Such delay is unjustifiable and unduly

prejudicial. It should have precluded the district court’s injunction.

2

Fourth, Virginia’s actions cause little, if any, harm. Virginia law explicitly

provides for same-day registration and casting provision ballots. So even if voters

were wrongly removed from the voter rolls by Virginia’s actions, they could still cast

a provisional ballot and avoid any material harm. The district court handwaved away

this critical point by describing Virginia’s same-day registration ballots as somehow

“discounted” or “suspect.” App. 252. But that premise is legally incorrect, and it

needlessly sows distrust in elections by erroneously implying that provisional ballots

cast by lawful voters are somehow discounted (or not counted at all). This is a

fundamental error that could dissuade voters from utilizing Virginia’s safe and

effective provisional ballots. The error alone warrants an emergency stay.

ARGUMENT

I.

The NVRA Does Not Govern Removal of Non-Citizens from Voter

Rolls

The district court’s ruling incentivizes foul play by creating an opportunity for

non-citizens not only to register to vote, but also to cast illegally obtained ballots, so

long as they register to vote within 90 days of an election. Reading the NVRA this

way directly contravenes Congress’ intent and should be rejected by this Court.

A. Congress Did Not Intend To Limit The States’ Ability to Remove

Non-Citizens from Voter Rolls

The district court’s flawed interpretation contravenes the NVRA’s text and

purpose. Congress enacted the NVRA with two overarching goals in mind: registering

eligible voters and removing ineligible voters, all while maintaining the states’

constitutional authority to best accomplish those two important goals. During the

passage of the NVRA, Congress carefully ensured that “[t]he [NVRA] should not be

3

interpreted in any way to supplant th[e] authority” of election officials “to enroll

eligible voters” and to “continue to make determinations as to applicant’s eligibility,

such as citizenship, as are made under current law and practice.” H.R. Rep. No. 1039, at 112 (1993), as reprinted in 1993 U.S.C.C.A.N. 105, 112 (emphasis added).

These goals are manifest in the NVRA’s plain text. On one hand, the NVRA

requires that the states ensure that “any eligible applicant is registered to vote.” 52

U.S.C. § 20507(a)(1). And, on the other hand, Congress provided mechanisms “to

protect the integrity of the electoral process,” id. § 20501(b)(3), such as “ensur[ing]

that accurate and current voter registration rolls are maintained[,]” id. § 20501(b)(4).

To promote the integrity of elections, the NVRA imposes a duty on states to

create a uniform system of maintenance for voter rolls. Section 8 of the NVRA

obligates states to “conduct a general program that makes a reasonable effort to

remove the names of ineligible voters from the official lists of eligible voters.” Id.

§ 20507(a)(4). For example, Section 8 requires states to remove individuals from the

voter rolls who have become ineligible due to “death” or due to “a change in . . .

residence” outside their current voting jurisdiction. Id. § 20507(a)(4)(A)–(B).

The Help America Vote Act (“HAVA”), which was intended to supplement and

improve the NVRA,2 requires states to adopt computerized statewide voter

registration lists and maintain them “on a regular basis” in accordance with the

NVRA. Id. § 21083(a)(2)(A). States must “ensure that voter registration records in

the State are accurate and are updated regularly”—an obligation that includes a

See, e.g., United States Election Comm’n, Help America Vote Act (June 7, 2023), EAC.GOV,

https://www.eac.gov/about/help_america_vote_act.aspx.

2

4

“reasonable effort to remove registrants who are ineligible to vote from the official list

of eligible voters.” Id. § 21083(a)(4)(A).

The NVRA also prohibits the systematic removal of certain, previously eligible

voters in the 90 days within a federal election. Specifically, the NVRA provides that

“[a] State shall complete, not later than 90 days prior to the date of a primary or

general election for Federal office, any program the purpose of which is to

systematically remove the names of ineligible voters from the official lists of eligible

voters.” Id. § 20507(c)(2)(A). There are only three exceptions to this Quiet Period (i.e.,

three reasons an “ineligible voter” may be removed within 90 days of an election): (1)

request, (2) criminal conviction or mental incapacity, or (3) death. Id. § 20507(c)(2)(B).

Critically, the distinction between “ineligible voters” and “eligible voters” does

not capture noncitizens who cannot be and were never even voters in the first place.

See United States v. Florida, 870 F. Supp. 2d 1346, 1350 (N.D. Fla. 2012) (“In short,

if, as both sides concede, section 8(a)(3) does not prohibit a state from removing an

improperly registered noncitizen, then 8(c)(2) does not prohibit a state from

systematically removing improperly registered noncitizens during the quiet

period.”)3; see also Bell v. Marinko, 367 F.3d 588, 591–92 (6th Cir. 2004) (“In creating

a list of justifications for removal, Congress did not intend to bar the removal of

names from the official list of persons who were ineligible and improperly registered

to vote in the first place.”). Indeed, the NVRA specifically requires that every

3 Although United States v. Florida was abrogated in part by Arcia v. Fla. Sec’y of State,772 F.3d 1335,

1339 (11th Cir. 2014), this Court is not bound by Arcia and as explained below, Acia was wrongly

decided. Amicus respectfully submits that the reasoning of United States v. Florida is correct.

5

individual must swear an oath that they are a citizen as a condition of registering to

vote. 52 U.S.C. § 20504(c)(2)(C)(i).

Felons, deceased individuals, and those who have moved to another

jurisdiction may become “ineligible voters” by virtue of a change in their status—but

they were, at one point, eligible. A non-citizen, by contrast, was never an “eligible

voter” because they cannot be a voter at all. See Bell, 367 F.3d at 592 (explaining that

the NVRA “protects only ‘eligible’ voters from unauthorized removal” and that

“[e]ligible voters, at a minimum, are those who qualify as bona fide” voters).

Yet the district court ruled that, because the NVRA’s exemptions to the Quiet

Period did not expressly include non-citizenship as an exemption, Congress clearly

intended to make non-citizenship a category of voters that cannot be removed. D.C.

App. 248–49 (“It cannot be that Congress would carve out exceptions for those

individuals who are felons or who were declared mentally incapacitated and then

failed to include the exception for noncitizens.”). This is a categorical error. Noncitizens are not voters and, consequently, Congress had no need to list them in the

exemption for “ineligible voters” who may be removed in the Quiet Period. See

Florida, 870 F. Supp. 2d at 1350 (“During the 90–day quiet period, a state may pursue

a program to systematically remove registrants on request or based on a criminal

conviction, mental incapacity, or death, but not based on a change of residence. What

matters here is this: none of this applies to removing noncitizens who were not

properly registered in the first place.”). A non-citizen is necessarily not a “voter” at

all, and hence cannot be an “ineligible voter.”

6

Plaintiffs have argued, incorrectly, that Public Interest Legal Foundation v.

North Carolina State Board of Elections (PILF), 996 F.3d 257, 260 (4th Cir. 2021)

foreclosed the above statutory analysis of the NVRA. See Pls.’ 4th Cir. Opp. Br. at 18.

It did not. The sole issue in PILF was whether the state had properly complied with

the NVRA’s disclosure requirements. See 996 F.3d at 260. The PILF Court did not

address the appropriateness of removing noncitizens from voter rolls—within a Quiet

Period or at any other time. Nor did it even include dictum supporting Plaintiffs’

argument. Plaintiffs’ citation is entirely misplaced. But even if the Fourth Circuit had

held as much, this Court is hardly bound by any such error.

Plaintiffs also rely on Arcia v. Fla. Sec’y of State, 772 F.3d 1335, 1339 (11th

Cir. 2014). That decision is not binding here and was wrongly decided. Arcia premised

its conclusions on the faulty assumption that the State’s “program to remove noncitizens was a program to remove ‘ineligible voters.’” Id. at 1344. As explained, noncitizens simply are not “ineligible voters” because they never were voters.

In sum, removal of non-citizens is not prohibited, at any time, by the NVRA.

Deceased voters were voters when they were still alive. Voters who commit a felony

and have their voting rights revoked were still citizens eligible to vote before their

convictions. But non-citizens were never eligible to vote and hence were never voters

at all. The district court’s conclusion that Congress clearly intended to keep noncitizens on the voter rolls—during the Quiet Period or otherwise—is thus legally

erroneous.

7

Moreover, it has long been established that “every reasonable construction

must be resorted to, in order to save a statute from unconstitutionality.” Hooper v.

California, 155 U.S. 648, 657 (1895). But Plaintiffs’ interpretation of the NVRA

“would effectively grant, and then protect, the franchise of persons not eligible to

vote.” Bell, 367 F.3d at 592. This interpretation would make it incredibly difficult—

if not impossible—for the States to prevent the unconstitutional dilution of their

citizens’ right to vote. See Purcell v. Gonzalez, 549 U. S. 1, 4 (2006) (per curiam)

(“Voter fraud drives honest citizens out of the democratic process and breeds distrust

of our government.”). States must have the ability to prevent “the diluting effect of

illegal ballots.” Gray v. Sanders, 372 U. S. 368, 380 (1963); see also Bluman v. FEC,

800 F. Supp. 2d 281, 288 (D.D.C. 2011) (three-judge district court) (Kavanaugh, J.)

(“It is fundamental to the definition of our national political community that foreign

citizens do not have a constitutional right to participate in, and thus may be excluded

from, activities of democratic self-government.”).

The district court’s interpretation creates grave doubts as to the NVRA’s

constitutionality by severely undermining the authority of States to prevent vote

dilution of their own citizens. “It is therefore incumbent upon [this Court] to read the

statute to eliminate those doubts so long as such a reading is not plainly contrary to

the intent of Congress.” United States v. X-Citement Video, 513 U.S. 64, 78 (1994).

B. The District Court’s Ruling Undermines Election Law and Yields

Perverse Policy Results

The district court’s ruling not only runs directly contrary to the NVRA’s text

and express purpose, but it also leads to bad policy that Congress would not have

8

intended. It creates a loophole for non-citizens to vote illegally by exploiting the 90day Quiet Period and this Court’s ruling.

Generally, Virginia law permits voter registration if done at least 22 days

before the election in question—either in a primary or general election. See Va. Code

§ 24.2-416. Registration can even occur on election day, as discussed below. See Va.

Code § 24.2-420.1. Accordingly, under the district court’s ruling, an individual can

first register to vote in Virginia within the 90-day NVRA’s Quiet Period. But even if

that individual later discloses his or her status as a non-citizen, or it is discovered

that the individual provided false information regarding his or her citizenship status

when registering to vote, there is nothing that can be done to cancel this individual’s

registration within the 90-day period—the individual must remain registered for the

upcoming election and must be permitted to cast a ballot. Plaintiffs would likely

concede that individualized removals in this situation would still be permitted; but,

as discussed below, their reading of the NVRA would effectively preclude any such

remedial measures and therefore prevent appropriate removal.

Paradoxically, the district court’s ruling creates a situation in which American

voters who are deemed ineligible by virtue of mental incapacity or a felony conviction

have less statutory protection from being purged from voter rolls than non-citizens—

who were never eligible to vote in the first place. This was not Congress’ intent, nor

does that interpretation comport with the NVRA’s plain text.

9

II.

Even if the NVRA Governed Non-citizen Removals, Virginia

Removed Them Individually—not Systematically—and Thus Did

Not Violate the NVRA’s Quiet Period

While the Quiet Period is wholly inapplicable to the removal of non-citizen

voters, it also only prevents removals that are “systematic,” as opposed to

individualized. See 52 U.S.C. § 20507(c)(2)(A). Here, Virginia’s removal of noncitizens

was intended to be individualized and therefore is permissible under the NVRA even

during the Quiet Period. Even the Eleventh Circuit in Arcia recognized that “the 90

Day Provision would not bar a state from investigating potential non-citizens and

removing them on the basis of individualized information, even within the 90-day

window.” Arcia, 772 F.3d at 1348.

Unlike Arcia, Virginia’s removal of non-citizens was individualized, not

systematic. As Virginia explained its process: the Department of Elections (“ELECT”)

has a statewide voter registration system called VERIS, which flags individuals who

self-identified as non-citizens in DMV forms but are also registered to vote in federal

elections. App. 45–46. When there are such matches between non-citizens and

registered voters, ELECT sends the records to the local registrar for individualized

review. App. 47. The registrar then manually reviews each potential match and has

discretion to correct errors and refuse to remove individuals from voter rolls. Id. If

the registrar determines that particular non-citizens and the person registered to

vote are the same person, the registrar then mails a “Notice of Intent to Cancel.” App.

47–48. The individual then can easily rectify the potential removal, simply by

attesting to his or her citizenship by return mail, without having to append

documents or any other form of proof. Id.

10

As noted, this process involved individualized determinations—not only the

self-identification at the DMV, but also the individualized review by the local

registrar to ensure appropriate matches, and the person’s opportunity to attest to

citizenship to prevent removal. Critically, and unlike here, the Secretary in Arcia

“[did] not deny that his program was an attempt to ‘systematically’ remove ineligible

voters from the voter rolls.” Arcia, 772 F.3d at 1344. The Eleventh Circuit agreed only

because the “program did not rely upon individualized information or investigation

to determine which names from the voter registry to remove. Rather, the Secretary

used a mass computerized data-matching process to compare the voter rolls with

other state and federal databases, followed by the mailing of notices.” Id. (emphasis

added). Here, the local registrar made individualized determinations after receiving

records from ELECT and before the mailing of notices.

The district court appears to have held that the mere use of the VERIS

computer program at the outset somehow renders the entire process “systematic.”

Not so. That Virginia used a computer system used to identify non-citizens at the

threshold does not mean that the overall process was a systematic removal. 52 U.S.C.

§ 20507(c)(2)(A). The use of a computer to identify potential non-citizen voters was a

necessary and convenient step in an otherwise individualized process.

Nor does the district court’s position make practical sense, as it would make it

effectively impossible for Virginia to ever remove such non-citizen voters within 90

days of an election—even through individualized assessments. That is because there

11

are 6.3 million registered voters in Virginia,4 so the entire process can never be purely

manual. For officials to review each record would take hundreds of thousands of work

hours and make the task impossible. For that reason, the state has automated the

initial step—identifying potentially ineligible individuals on the voter rolls—but the

processes is completely individualized from then on, including an individualized

assessment and personal opportunity to avoid removal by mere attestation of

citizenship. See App. 85; App. 94–96. Put another way, the initial screening step did

not result in any systematic removals but instead merely identified people who might

need to be removed; from then on, all determinations were individualized.

Importantly, such individualized removals are critical to the integrity of the

electoral process. Accurate voter rolls prevent voter fraud and protect the weight of

each legitimate vote. Removing ineligible voters ensures compliance with both federal

and state laws. 52 U.S.C. § 20501. And individualized removals balance the rights of

voters with the needs of election integrity.

III.

Plaintiffs Unjustifiably Delayed This Lawsuit

On August 7, 2024, Virginia Governor Glenn Youngkin issued Executive Order

35 (“E.O. 35”), directing the implementation of a program to remove non-citizens from

the voter registration rolls pursuant to Virginia Code § 24.2-427. E.O. 35 requires the

Commissioner of the Department of Elections to certify to the Governor that

procedures are in place for daily updates to the statewide voter registration list to

“[r]emove individuals who are unable to verify that they are [U.S.] citizens to the

4 See Virginia Dep’t of Elections, Registration Statistics & Polling Places, ELECTIONS.VIRGINIA.GOV,

https://www.elections.virginia.gov/resultsreports/registration-statistics/ (last accessed Oct. 28, 2024).

12

Department of Motor Vehicles[.]” This initiative aims to ensure that only eligible U.S.

citizens are registered and able to vote, upholding the integrity of Virginia's elections.

Despite the public announcement of this program in early August and

widespread coverage by local and national media outlets, Plaintiffs did not file their

complaint challenging the legality of Virginia’s non-citizen removal process until

October 7—less than a month before the 2024 general election.5 This two-month delay

is both unjustifiable, and it is detrimental to the electoral process. By waiting until

the last possible moments, Plaintiffs seek to prevent Virginia from successfully

appealing and implementing the removal of illicit voters from the registration before

the November general election.

Courts have consistently held that undue delay in seeking preliminary

injunctive relief weighs heavily against granting such relief, especially when elections

are imminent. The Purcell principle is a “bedrock tenet of election law” that requires

“[w]hen an election is close at hand, the rules of the road must be clear and settled.”

Merrill v. Milligan, 142 S. Ct. 879, 880–81 (2022) (Kavanaugh, J., concurring).

In Purcell, the Supreme Court emphasized that court orders affecting elections can

result in voter confusion and consequent incentive to remain away from the polls. 549

5 Press Release, Governor Glenn Youngkin Issues Executive Order to Codify Comprehensive Election

Security Measures to Protect Legal Voters and Accurate Counts, GOVERNOR GLENN YOUNGKIN (Aug.

7, 2024), https://www.governor.virginia.gov/newsroom/news-releases/2024/august/name-1031585en.html; Jason Hopkins, Glenn Youngkin Issues Executive Order To Better Prevent Noncitizens From

Voting, THE DAILY CALLER (Aug. 7, 2024), https://dailycaller.com/2024/08/07/glenn-youngkinexecutive-order-prevent-noncitizens-voting/; Sarah Roderick-Fitch, Youngkin Issues Executive Order

to

Strengthen

Election

Security,

THE WASHINGTON EXAMINER

(Aug.

8,

2024),

https://www.washingtonexaminer.com/news/3114829/youngkin-issues-executive-order-to-strengthenelection-security/; Timothy H.J. Nerozzi, Youngkin Mandates All Paper Ballots for Presidential

Elections in Virginia, FOX 5 WASHINGTON DC (Aug. 8, 2024), https://www.fox5dc.com/news/youngkinmandates-all-paper-ballots-presidential-elections-virginia.

13

U. S. at 4–5. Nothing could be more confusing to a voter than this “on again, off again”

approach to voter registration. Equity demands that those seeking relief act diligently

to avoid such disruptions. Warner Chappell Music, Inc. v. Nealy, 601 U. S. 366, 373

(2024).

When Plaintiffs initially brought their suit, the 2024 election was less than one

month away. Today, it stands less than two weeks away. The closer an election is, the

greater the potential for disruption caused by judicial intervention. Purcell, 549 U. S.

at 4–5. To potentially overcome the presumption against last-minute injunctions, a

plaintiff must establish “at least the following: (i) the underlying merits are entirely

clearcut in favor of the plaintiff; (ii) the plaintiff would suffer irreparable harm absent

the injunction; (iii) the plaintiff has not unduly delayed bringing the complaint to

court; and (iv) the changes in question are at least feasible before the election without

significant cost, confusion, or hardship.” Merrill, 142 S. Ct. at 881 (emphasis added).

Undue delay in seeking preliminary injunctive relief weighs heavily against the grant

of such relief. Id. at 880–81.

In its ruling, however, the district court reasoned that the standard established

in Milligan “is not appropriate here in this case. This case involves challenges on the

violations of the quiet provision of the NVRA, which, by its very nature, these types

of challenges are always going to be close to elections.” App. 243. In doing so, the

district court effectively granted blanket immunity to NVRA Quiet Period actions,

implicitly holding that Plaintiffs can unnecessarily and unjustifiably delay suit

simply because such suits will typically arise close to elections.

14

This reasoning overlooks the relative nature of proximity to an election. Just

because some NVRA suits will necessarily need to be filed close to elections does not

mean that NVRA Plaintiffs are completely immune from the consequences of their

own needless delays. Purcell doctrine, as well as general principles of equity,

recognize no such exception.

Closeness to elections is a relative metric, as is the defensibility of any delay

that produced it. It will be different in every context. The NVRA has established a

90-day window where certain state actions are precluded. However, within the 90

days are days that are closer and further from an election. It is incomprehensible that

the Purcell principle, which exists explicitly to prevent “late judicial tinkering with

election laws,” Merrill, 142 S. Ct. at 881, would not apply precisely to such an

instance—particularly where lateness of the judicial intervention is necessitated by

Plaintiffs’ own unjustified (and unjustifiable) delay. NVRA plaintiffs are uniquely

immune from the truism that their actions (and inactions) have consequences.

In the present case, Plaintiffs' failure to act promptly is particularly vexing. By

waiting until October 7 to file their lawsuit and seek a preliminary injunction,

Plaintiffs have created a scenario where the Court is asked to intervene mere weeks,

and soon mere days, before an election. Adjusting voter rolls by removing and adding

back thousands of registrants at this juncture is a recipe for chaos. The election is not

just near—it is at the doorstep.

The balance of equities and the public interest thus weigh heavily against

granting the preliminary injunction due to Plaintiffs’ undue delay. Courts must be

15

cautious in altering election procedures on the eve of an election, lest changes cause

voter confusion and administrative chaos. Purcell, 549 U. S. at 4–5. A preliminary

injunction at this point runs contrary to clearly established guidelines laid out in

Milligan and Purcell. This Court should accordingly grant Virginia’s request for a

stay. See, e.g., RNC v. DNC, 589 U. S. 423, 425 (2020) (“[W]hen a lower court

intervenes and alters the election rules so close to the election date, our precedents

indicate that this Court, as appropriate, should correct that error.”).

IV.

Virginia’s Extensive Safeguards Undermine Plaintiffs’ Harms

An emergency stay is also warranted because the equities weigh heavily in

favor of it. Plaintiffs failed to demonstrate that they would suffer irreparable harm

without the preliminary injunction. Moreover, as Virginia explained, in the highly

unlikely scenario in which an eligible voter was improperly removed (despite the

procedural safeguards and their individual documentation or submission indicating

they are a non-citizen6), those citizen voters can still cast a ballot on election day

because Virginia permits same-day registration. Va. Code § 24.2-420.1. Thus, even if

Virginia’s actions resulted in wrongful removals—a proposition for which there is no

convincing evidence—such erroneous removals can be readily remedied by same-day

registration and the casting of a provisional ballot.

6 Virginia has established procedures that offer multiple opportunities for voters to verify and correct

their registration status before election day. Before a voter is removed from the rolls, Virginia law

requires that the registrar send notice to the voter, providing an opportunity to verify their eligibility

to vote. Va. Code § 24.2-427(b)-(c). When an individual is flagged for potential non-citizenship, the

registrar must “promptly” mail notice informing the person and “allow the person to submit a sworn

statement that he is a United States citizen within 14 days.” Va. Code § 24.2-427(c). If the individual

fails to confirm their citizenship within 14 days, they are removed from voter registration rolls. Id.

16

Nonetheless, the district court found irreparable harm to those hypothetical

voters based on the specious argument that same-day registration for eligible voters

was insufficient. According to the court, Virginia’s provisional ballots are “suspect”

and “subject to being discounted.” App. 252. But the Court failed to cite any support

for that proposition, and the Plaintiffs identified none. Properly submitted

provisional ballots are not “discounted.” They do not, for example, count as only half

a vote. They are designed to create time for election officials to verify eligibility.

Instead, if the person at issue is indeed an eligible voter, the vote is counted precisely

as much as other votes.

The dangers of the district court’s reasoning exacerbate its legal error,

however. Castigating provisional ballots as “suspect” and engaging in evidence-free

speculation that they will not be counted needlessly fuels election-related

conspiracies, discourages individuals from casting safe and effective provisional

ballots, and ultimately undermines the democratic process. The district court’s

balance-of-harms reasoning is thus erroneous and dangerous.

First, in Virginia, “any person who is qualified to register to vote” is “entitled

to register in person up to and including the day of the election.” Va. Code § 24.2420.1.

That person may same-day register at either at (1) “the office of the general registrar”

where they reside, or (2) “the polling place for the precinct in which such person

resides.” Id. Once that person same-day registers, he is permitted to cast a provisional

ballot, which involves providing identifying information and—if necessary—signing

a statement subject to felony penalties for false statements Va. Code § 24.2-653. The

17

electoral board will then determine the validity of the provisional ballot after the

election. Va. Code § 24.2-653.01(A).

The result is that ninety-eight percent of same-day-registration provisional

ballots are counted—with the rejected two percent resulting from voting in the wrong

precinct, failing to provide complete registration data, or similar voter errors. See,

e.g., App. 86–87.7 In sum, a voter who is wrongfully removed from Virginia’s rolls may

register at her precinct, cast a provisional ballot, and—so long as she provides all the

required information and is eligible to vote—her vote will be counted.

Second, federal law itself recognizes that provisional votes are useful and

effective. Under HAVA, for example, Congress required that provisional ballots be

federally mandated mechanisms to prevent disenfranchisement from administrative

errors or questions regarding a voter’s eligibility. See 52 U.S.C. § 21082(a) (“If an

individual declares that such individual is a registered voter in the jurisdiction in

which the individual desires to vote and that the individual is eligible to vote in an

election for Federal office, but the name of the individual does not appear on the

official list of eligible voters for the polling place or an election official asserts that

the individual is not eligible to vote, such individual shall be permitted to cast a

provisional ballot[.]”).

HAVA requires that any individual who claims to be registered to vote in the

district in which they are attempting to vote but whose eligibility is not immediately

7 See also VA. DEP’T OF ELECTIONS, 2023 ANNUAL VIRGINIA ELECTION RETROSPECTIVE & LOOK AHEAD

25–26 (2024), available at https://www.elections.virginia.gov/media/formswarehouse/maintenancereports/2023_Post-Election-Report_final.pdf.

18

verifiable must be allowed to cast a provisional ballot. Id. Critically, after being cast,

these ballots are subject to verification by election authorities. If the voter is

confirmed to be eligible, the provisional ballot is counted exactly the same as a regular

ballot. There is no legal distinction between a counted provisional ballot and a regular

ballot. Id. § 21082(a)(4). A properly submitted provisional ballot is thus not “suspect”

at all—let alone being “subject to being discounted.” App. 252.

Unlike the district court here, courts have consistently recognized provisional

ballots as a valid and effective method of voting. Crawford v. Marion Cnty. Election

Bd., 553 U. S. 181, 198 (2008) (finding that presenting evidence in support of a

provisional ballot is not an identifiable “legal obstacle inhibiting . . . opportunity”).

Yet, the district court erroneously referred to provisional as voting “suspect,” and

implied provisional ballots are somehow worth less than an indistinguishable vote by

any other means. This Court should stay the resulting injunction to correct this

fundamental misunderstanding of provisional ballots.

Incorrectly characterizing provisional ballots in this way, as inferior,

unreliable, or “suspect,” less than two weeks before one of the most closely contested

elections in modern history undermines voter confidence and adds fuel to the fire of

election misinformation. Such mislabeling will discourage eligible voters from casting

provisional ballots if they encounter issues at the poll. Other voters, fueled by greater

levels of distrust in the electoral process as a result of this ruling, will refuse to vote

at all.8 At a time of historic distrust in the electoral process, it is unconscionable that

8 Cary Wu, Why Would Any US Voter Sit out This Election? Low Trust in Others, THE TYEE (Nov. 2,

2020), https://thetyee.ca/Analysis/2020/11/02/US-Voter-Turnout-Low-Trust/.

19

the district court seems to believe that millions of votes cast provisionally each cycle

are “subject to being discounted.”9 If the district court is going to premise an

injunction on the belief that mass disenfranchisement of provisional ballots is

occurring in the U.S., it is obliged to point to at least some evidence for that alarming

proposition. None was cited here.

This mischaracterization of provisional ballots undermines public confidence

in the election and will disproportionately hurt the very people Plaintiffs claim to

represent. Studies indicate, and courts have recognized, that provisional ballots are

disproportionately used by minority voters and individuals from marginalized

communities, who may be more likely to encounter obstacles when voting on election

day. League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 233 (4th Cir.

2014). Not only do minority voters use provisional ballots at higher rates than other

groups, but they are also more likely to not vote when they experience high levels of

distrust.10

Rather than vindicating the democratic process, the district court’s injunction

needlessly sows doubt in it. And it wantonly risks further erosion in trust in the

9 Tony Dokoupii, Democratic and Republic Voters Share a Mistrust in the Electoral Process, CBS NEWS

(Jan.

6,

2022),

https://www.cbsnews.com/news/democratic-and-republican-voters-share-theirmistrust-in-the-electoral-process/; U.S. Election Assistance Comm’n, The Election Administration and

Voting

Survey

–

2016

Comprehensive

Report,

EAC.GOV,

https://www.eac.gov/sites/default/files/eac_assets/1/6/2016_EAVS_Comprehensive_Report.pdf

(last

accessed Oct. 25, 2024).

10 Wu, supra note 8.

20

electoral system by undermining the legitimacy of more than two million provisional

ballots expected to be cast nationwide.11

CONCLUSION

For the foregoing reasons, the Court should grant the emergency stay.

October 28, 2024

Respectfully submitted,

/s/ Jason Torchinsky

Jason Brett Torchinsky

Counsel of Record

HOLTZMAN VOGEL

BARAN TORCHINSKY & JOSEFIAK, PLLC

2300 N Street NW, Ste 643

Washington, DC 20037

(202) 737-8808

Jtorchinsky@holtzmanvogel.com

Mark Pinkert

HOLTZMAN VOGEL

BARAN TORCHINSKY & JOSEFIAK, PLLC

119 S. Monroe Street, Ste 500

Tallahassee, FL 32301

850-270-5938

mpinkert@holtzmanvogel.com

Jonathan Lienhard

Daniel Bruce

HOLTZMAN VOGEL

BARAN TORCHINSKY & JOSEFIAK, PLLC

15405 John Marshall Hwy

Haymarket, VA 20169

(540) 341-8808

jlienhard@holtzmanvogel.com

dbruce@holtzmanvogel.com

U.S.

Election

Assistance

Comm’n, EAVS

Deep

Dive,

EAC.GOV,

https://www.eac.gov/sites/default/files/document_library/files/EAVSDeepDive_provisionalballot.pdf

(last accessed Oct. 28, 2024) (noting that nearly 2 percent of ballots cast during presidential election

years are provisional ballots).

11

21

Drew Ensign

Dallin B. Holt

Brennan Bowman

HOLTZMAN VOGEL

BARAN TORCHINSKY & JOSEFIAK, PLLC

2555 East Camelback Rd., Ste. 700

Phoenix, AZ 85016

(602) 388-1262

dholt@holtzmanvogel.com

bbowman@holtzmanvogel.com

Counsel for Amicus Curiae

the Honest Elections Project

22