Call it the Mark of Kaine. The heated dispute between the Biden Administration and the State of Virginia just took a curious turn after Virginia lawyers released support for the effort to remove alleged noncitizens from the voting rolls ahead of the presidential election. The main witness against the Biden Administration may prove to be Sen. Tim Kaine (D., Va.) who is on the ballot this election.
The Biden Administration sued to stop the removal of 6,303 alleged noncitizens from Virginia’s voter rolls before the election, which is expected to be close in the state. It relies on the National Voter Registration Act (NVRA), or the “Motor Voter Law,” which bars “systemic” removal of voters from the rolls less than 90 days before an election.
Gov. Glenn Youngkin ordered compliance with existing laws, citing Virginia code 24.2-439, requiring the removal of noncitizens whose names were added under false pretenses. It also cited Virginia Code 24.2-1019, requiring registrars to immediately notify their county or city prosecutor of such situations.
The NVRA has exceptions for removals within what the Justice Department calls the “quiet” period before an election, including the removal of individuals who are “ineligible to vote because of a criminal conviction or mental incapacity, or for “correction of registration records pursuant to this chapter.”
However, the state argues as a threshold matter that these are not systemic removals. The state argues that these are individual actions triggered automatically by citizens identifying themselves as noncitizens but then joining the voting rolls. It is a crime for a noncitizen to vote in the election.
The state notes that the voter is notified of the problem and allowed to correct any errors to remain on the rolls. If they do not correct the problem, they are removed from the rolls. However, they can still vote on election day with a “provisional” ballot to challenge any removal.
Virginia is not targeting any group and does not know how these voters might vote. It is responding to a notice coming from the Department of Motor Vehicle of a possible ineligibility and potential criminal act if the person actually votes, which is admittedly rare for noncitizens.
While the Justice Department insists that some of these individuals are actually citizens, the system allows for those citizens to remain on the rolls by simply correcting the DMV record.
I understand concerns over changes close to the election, but there seemed to be a host of options for the Justice Department short of this lawsuit, including working with the state to be sure that this relatively small number of voters are given ample opportunity to correct their records.
This weekend, Virginia added a new wrinkle in the litigation. The Virginia law has been on the books since 2006. The bipartisan legislation was signed into law by then Virginia Gov. Tim Kaine. It has been used without any objection for all those years.
However, it now appears that Kaine’s administration specifically asked the Justice Department to determine if the law was compliant with federal laws, including an express inquiry about the NVRA.
On December 16, 2006, the Justice Department completed its review and found no objections to the Virginia law though it added that it reserves the right to object in the future to any such laws.
Gov. Youngkin further told Fox News that past governors continued to use the law within the 90 days period without a peep of objection from the Justice Department.
These facts distinguish the Virginia case from the Alabama case where a court enjoined removal of names of suspected non-citizens.
Now, Kaine is on the ballot and there is a close election for the presidency. The Biden Administration is suddenly claiming to be “shocked, shocked” that there are alleged noncitizens being removed from the ballot.
In July, in an interview with WJLA-TV , Kaine insisted that “voting should be reserved for U.S. citizens.” When pressed recently, his campaign issued a non-statement statement that, again, insisted that “it is illegal for noncitizens to vote” while adding that “just as we want to block noncitizens from voting, we need to keep eligible voters from being purged from voting rolls, particularly just weeks from an election.”
Youngkin agrees that the state must “block noncitizens from voting” and is using the very law Kaine signed (and the Justice Department approved) for that purpose.
In the end, these votes are unlikely that to change any electoral outcomes. However, there is a broader fight building over a variety of election integrity efforts.
States have complained that the Biden Administration has harassed and sued them at every turn as they sought to require voter identification or other laws.
Florida is now suing the Biden administration for allegedly obstructing the verification of immigration records so the state can remove any non-citizens. The state alleges that the Biden Administration has simply refused to supply required verification information.
These are just a few of the over 165 election-related lawsuits filed in the days before the election by the federal and states authorities and various public interest groups.
Some local officials are sparring with state officials. Fourteen states do not require voter identification. Despite the opposition from the Administration and many Democratic leaders, Gallop and other polling show Americans overwhelmingly support voter identification laws. In California, the state actually made it illegal for local election officials to ask for identification from voters.
The key about the lawsuits filed close to the election is the first round is often the last round. Whoever wins these fights for injunctive relief is likely to remain the prevailing party in the final days before the election.
There is now a virtual army of lawyers deployed by both parties to secure or to protect the expected small margin of victory in the election. Indeed, lawsuits like the Virginia action constitute a type of “harassing fire” to push back on states on identification and eligibility efforts.
The Biden Administration’s move against Virginia shows how one person’s voter integrity is another’s voter suppression. Indeed, the man who signed this state law is now supporting the Administration seeking to limit its use.
Yet, the mark of Kaine on this law is an indelible reminder of how even long-standing practices are now being challenged in this hair-triggered environment. For voters, they will have to be careful when picking their line at their polling place. The longest line is likely the lawyers waiting to get inside.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and the author of “The Indispensable Right: Free Speech in an Age of Rage.”
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