Supreme Court should allow Virginia to block noncitizens from voting

On Aug. 7, Youngkin signed Executive Order 35, which, among a series of other basic election procedures, includes what should be an unexceptional requirement to strip from the voting lists anyone who identified themselves as noncitizens when filling out forms for the Department of Motor Vehicles. Repeat: self-identified noncitizens.

It is indisputable that Virginia law does not allow noncitizens to vote. It is indisputable that the Justice Department, in 2006, precleared the Virginia law that provides for election officials to remove ineligible voters from the rolls as part of “daily maintenance” of registrations. That law was signed by Democratic Gov. Tim Kaine, who later became his party’s nominee for vice president and still is a U.S. senator. The only substantive distinction in Youngkin’s order is to specify that county registrars should now use DMV information to help them with that task. This is a thoroughly unremarkable exercise of due diligence: If somebody has identified himself as a noncitizen, registrars should make sure he isn’t allowed to vote.

President Joe Biden’s Justice Department is obsessively in favor of making it easy for cheaters to vote. All across the nation, it is intervening to block or suspend state officials’ sensible, good-faith efforts to maintain voting integrity. In Virginia, the department sued to block Youngkin’s executive order by claiming it violates a part of the National Voter Registration Act that prohibits states from “systematic” efforts to take names off voter lists within 90 days of an election. Alas, a federal district judge and three judges of the U.S. Court of Appeals for the 4th Circuit, all appointees of Presidents Barack Obama and Biden, ruled in favor of Biden’s motion, against Virginia.

The judges are engaging in sophistry. Youngkin and state officials are not perpetrating a “systematic” voter purge. Instead, they are using ordinary efforts to apply the law on an individual basis. The name removal is predicated on each resident’s self-identification on a state form. There’s even a fail-safe: If someone who self-identified as a noncitizen believes his name was removed from voter lists in error, the state proactively notifies him and gives him 14 days to correct the record, or else to cast a “provisional” ballot on Election Day.

Virginia’s system is eminently sensible and fair. This isn’t merely about the presidential race. Next week, Virginia has elections for the Senate, the House, local school boards, municipal governments, and several issue propositions. Virginia has a history of tight elections. This summer, a Republican congressional primary there was decided by only 374 votes. In the most dramatic of numerous other examples, partisan control of the state’s House of Delegates in 2017 came down to a single legislative race that ended up tied, with the winner determined by having his name drawn from a glass bowl.

From a practical standpoint, what Youngkin is doing is preferable to the alternative. Under Youngkin’s rules, anybody who believes he is a valid voter can cast a provisional vote on Election Day, and if he is a legitimate voter, then the vote will count. If Youngkin’s rule is jettisoned, though, then the state or campaigns will need to challenge the illegal votes after the fact in court. Even if the state is right, there is no way to prove for whom the ballot was cast. There is no way to right the wrong.

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Plus, as it is a criminal offense for a noncitizen to vote, the challenged voter who actually cast a ballot would be subject to arrest and prosecution. Far better to block him on the front end, with his provisional ballot giving him the chance to have his vote counted if he does somehow prove eligible, than to leave him subject to prosecution.

On the law, the facts, and the logic, the Supreme Court should overturn the lower-court judges and allow Youngkin’s program to resume.