It was a big week on the legal front for election integrity with two important decisions from federal court.
Winning in Virginia
In what is being touted as a major decision, the Supreme Court of the United States (SCOTUS) ruled 6-3 in favor of Virginia election officials’ removal of voters from the state’s registration rolls when their driver’s licenses indicated or suggested they were not U.S. citizens. Dissenting from the October 30, 2024 decision were justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson. [https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/24a407.html]
Hans von Spakovsky, manager of the Heritage Foundation’s Election Law Reform Initiative, assessed the importance of the decision in a statement, saying: “States should take this action from the Supreme Court as confirmation that they can clean up their voter rolls.” Then Spakovsky gave this warning, “It [the SCOTUS decision] should also signal to DOJ that they need to investigate and prosecute these aliens, not try to force Virginia or any other state to keep them registered in voter rolls in violation of federal law.”
The lawsuit, brought by the Department of Justice, claimed Virginia could not remove these individuals during the so-called 90-day quiet period before the election. It argued the practice violated federal law prohibiting these removals so close to election day.
The state of Virginia responded saying, 1) the federal law applied to mass, data clean-up operations not clean-up of individually identified registrants from the voter rolls, and 2) the individuals being removed should have never been registered in the first place.
The Virginia Mercury reported how a staff memo to Virginia Republican Governor Glenn Youngkin advised him on the matter. The memo claimed, “Federal law does not prohibit the removal of noncitizens from the voting rolls.” It explained why, saying the 90-day quiet period was “not relevant to this process since Virginia conducts an individualized — not systemic — review per Virginia law in order to correct registrations.”
Loss in Pennsylvania
On Tuesday, a lawsuit in the U.S. District Court for the Middle District of Pennsylvania seeking state compliance with federal law requiring verification of overseas voter registration was dismissed.
The Hail Mary lawsuit, filed on September 30, by five U.S. Congressmen from Pennsylvania asked the court to make clear that Eric Schmidt, Secretary of Pennsylvania’s Department of State, violated federal law when he directed state election officials not to verify the identities and citizenship of overseas voter applicants. The lawsuit stated:
The Help America Vote Act of 2002 (HAVA) was passed to establish minimum standards for the administration of federal elections including the requirement for verification of identity and eligibility for individuals who seek to vote in a federal election.
Without citing to any statute or legal authority, the Pennsylvania DOS has issued directives to counties not to attempt to verify the identity or eligibility of UOCAVA applicants.
The five plaintiffs included U.S. Congressmen Guy Reschenthaler, Dan Meuser, Glenn Thompson, Lloyd Smucker, and Mike Kelly along with Pennsylvania Fair Elections.
Citizen voting from overseas locations is governed by a federal law called the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA). Those ballots and voters are also governed by federal HAVA regulations that describe how all registrations, overseas and domestic, should be verified. The Congressmen and Pennsylvania Fair Elections alleged that the Commonwealth’s directives that exempted counties from verifying the identities or eligibility of overseas voters was a violation of federal HAVA law.
Judge Christopher C. Conner, a George W. Bush-appointed federal judge, agreed with all of the Commonwealth’s arguments for dismissal. According to Conner, “Plaintiffs delayed too long to file their action, they lack standing, they have failed to join indispensable parties, and they have failed to articulate a viable cause of action. Hence, we will grant the Secretary’s motion to dismiss.”
Patrice Johnson, Founder and Chair of Michigan Fair Elections, said she was disappointed to learn the decision but was grateful to learn important takeaways. “No one ever wants to lose a lawsuit, but we are playing the long game, looking to eliminate some of the loopholes in overseas voting procedures that could permit fraud. This lawsuit provided a number of insights, so the next run at these regulations will likely be stronger and will help lawmakers draft better bills.”
Johnson gave another reason such lawsuits are important. “In Michigan we have a partisan Secretary of State who complies with the law only when forced to do so. In recent years, there have been many changes in how elections are conducted. It only makes sense that some of the kinks have to be worked out in the courts, especially in states that are home to secretaries of state with partisan agendas.”
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