Heinous Fuckery

BREAKING: #SCOTUS halts court-ordered fix for Virginia voter purge targeting non-citizens. All 3 liberal justices dissent. Doc: https://t.co/38Fbml6MTt Earlier: https://t.co/D0ZrqwMIKZ

— Josh Gerstein (@joshgerstein) October 30, 2024

The application for stay presented to The Chief Justice and by him referred to the Court is granted. The October 25, 2024 order of the United States District Court for the Eastern District of Virginia, case Nos. 1:24-cv-1778 and 1:24-cv-1807, is stayed pending the disposition of the appeal in the United States Court of Appeals for the Fourth Circuit and disposition of a petition for a writ of certiorari, if such a writ is timely sought. Should certiorari be denied, this stay shall terminate automatically. In the event certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court.

Without comment from Professor Vladeck, I have to rely on Politico for the status of this case. 

This is what the Court just ruled on:

In a filing docketed early Monday, state Attorney General Jason Miyares requested a stay that would head off a deadline Wednesday to restore about 1,600 people to the voter rolls who were kicked off since Republican Gov. Glenn Youngkin issued an executive order in August stepping up the computer cross-checks.

Per Politico

In an unusual Sunday ruling, a unanimous panel of the 4th Circuit Court of Appeals largely rebuffed arguments from lawyers for Republican Gov. Glenn Youngkin that an injunction the Justice Department and civil rights groups obtained against the program from a lower-court judge Friday was legally flawed and would be too disruptive to administer in the just over a week remaining before Election Day. 

Youngkin’s attorneys argued that a ban in federal law on systematic programs to remove voters in the 90 days before a federal election does not apply to efforts aimed at removing non-citizens, but the appeals court forcefully rejected that as an “argument that violates basic principles of statutory construction.” 

The three-judge panel’s order stressed that Virginia officials “remain able to prevent noncitizens from voting by canceling registrations on an individualized basis or prosecuting any noncitizen who votes,” but said a system Virginia uses to match citizenship data from the Department of Motor Vehicles with voter rolls appears to violate the National Voter Registration Act of 1993 when implemented during the so-called “quiet period” before elections.

The Supremes stayed the trial court order on restoring the rolls until the appeals court has finished its review, or until the Supremes take up the case. At least that’s how I read this based on the Politico report of what Virginia asked for, and what Politico is reporting now. . I can’t imagine (or understand) how a stay of the order telling Virginia to stop purging the rolls would work. Far easier to understand a stay of the order to restore the rolls. 

The Supreme Court did not treat the order of the appeals court (I assume that’s what Politico is quoting) as final, and so didn’t stay that order. It appears the appeals court ruled on the injunction alone, and withheld judgment on the rest of the appeal (whatever other issues there are). It would seem the Supremes don’t agree with what the appeals court has done so far, but this is not the time to say that. So they stay the trial court. Procedurally, much neater.

This is a procedural order, not a substantive one, so it’s hard to read anything into it, or out of it, without knowing more about what the application (the one three justices would deny) of Virginia to the Court, was. But there, Professor Vladeck comes in to clarify:

It is exceedingly unlikely that this ruling will affect the outcome of any federal races in Virginia. That said, it’s a rather ominous harbinger of the Court’s willingness not only to intervene in at least some election cases, but to do so without explaining its reasons why.

— Steve Vladeck (@steve_vladeck) October 30, 2024

That’s where I come down. This is virtually a shadow docket ruling, making a substantive decision in the guise of a procedural one, and without explanation. It’s rather hard to say the Court isn’t ruling: “Let Virginia fuck with the voters.”

It’s worth noting here that Virginia’s substantive argument was the Feds weren’t giving them access to data the Feds said wouldn’t show what Virginia wanted to see, that is, absolute proof of citizenship. Whatever that would be. (For example: my birth certificate is accepted as proof of citizenship; but, it doesn’t have my picture on it (nor do I look like that now). How far down this rabbit hole do we go?). The trial court no doubt considered that in its order. What the Supremes are thinking is anybody’s guess, especially without the record before them.

Interesting side note, especially if true:

IMO this is the point of this decision, it’s a Welcome sign to the Trump campaign. The 1600 voters apparently can still demonstrate their citizenship at the voting booth, I’m guessing no one is specifically notified.

— Miguel de Unamuno (@unamuno1898) October 30, 2024

How the fuck do I do demonstrate my citizenship? Oddly (and I’m surprised no one is mentioning it), I had to prove my citizenship with a birth certificate in order to renew my DL last summer. Federal law (Real ID) now requires it so you can use the DL as ID to fly. Which effectively means you can’t get a DL without it. It’s entirely possible these 1600 have not yet renewed their licenses (or don’t have one), but if any have, why wouldn’t their DL be proof of citizenship? I’m assuming Voter ID laws are implemented somewhat uniformly (and that Virginia has one). I used to take my voter registration card and my DL to vote. Now they just scan my DL against the database and give me a ballot. My Real ID DL is proof of citizenship, no?

Voting in this country is SO fucked up.