During the first week of the 2024 election routine, will states be able to eject noncitizens from the voter rolls in large numbers? If the Biden-Harris leadership gets its manner, the answer is likely no.
If governmental authorities and election integrity watchdogs attempt to clean voter rolls with them within 90 days of Election Day, the Department of Justice ( DOJ) issued guidance on Sept. 9 that appeared to threaten legal action. According to the Biden-Harris DOJ, these actions would go against the 1993 National Voter Registration Act’s ( NVRA )’s ) “quiet period” provision.
Today, the DOJ has made great on that danger, filing a complaint against the state of Alabama that could have national implications. A campaign launched by Alabama Secretary of State Wes Allen on August 13 — roughly 84 days before Election Day 2024 — aims to neutralize and eliminate non-Americans from a community of 3, 251 people registered to cast ballots in the position but who have been issued noncitizen identifying numbers by the Department of Homeland Security.
According to a press release, the authorities had stopped attempts to obtain a list of noncitizens living in Alabama, which led Allen to “abord the problem in a different way.”
Groups Sue Alabama
Allen said eligible voters would be able to upgrade their knowledge on a condition voter registration form and cast ballot in upcoming elections because he acknowledged that some of the 3, 251 people might have become members after receiving noncitizen identification numbers.
Allen also gave the state’s attorney general the authority to look into registered voters who had been issued noncitizen identification numbers and possibly engage in criminal prosecution.
A fortnight later, the Alabama Coalition for Immigrant Justice and a slew of like-minded groups sued the state, alleging the record repair work discriminatorily targets and burdens naturalized citizens and U. S. born citizens unjustly swept into the government’s review, violating the U. S. Constitution and Voting Rights Act, and the NVRA’s above “quiet period” prohibitions.
The DOJ filed its own lawsuit on September 27, alleging that Alabama’s effort to maintain the record maintenance program violated NVRA’s “quiet interval,” which allowed the two cases to be combined. Alabama filed a motion to dismiss the case on Wednesday.
Requiring Record of Citizen
The NVRA, also known as” Motor Voter,” is at the center of the ongoing debates about noncitizen voting and illegal immigration. The legislation, which was passed in 1993, aimed to increase the number of voter rolls while preventing scams and keeping the voter rolls clear.
The parliamentary report shows that while the act was being debated, Republicans were concerned that illegal aliens may end up on the spins. A change to the legislation introduced by the later Democrat Sen. Jesse Helms and his Republican coworker, Sen. Alan Simpson, may have allowed state to request membership from registered voters candidates. The act was abandoned by Congress in a conference.
Otherwise, the NVRA may only require that national vote enrollment forms include a checkbox for an applicant to suggest he is a citizen under penalty of perjury.
A loophole that congressional Republicans sought but failed to close through the SAVE Act, which passed the House but passed the Senate earlier this year, has been removed by the Supreme Court.
In response to the Biden-Harris immigration policy of invasion, under which millions of illegal aliens have crossed into the country, states have been engaging in list maintenance efforts and working to remove ineligible noncitizen voters on the rolls by the thousands this cycle, as I reported at RealClearInvestigations.
Cleaning Voter Rolls
Section 7 of the NVRA regulates the administration of voter registration. In its first sub-section, the governors are asked to “engage in list maintenance efforts,” including removing eligible voters ( i ) at the request of a registrant, ( ii )” as provided by State law, by reason of criminal conviction or mental incapacity,” ( iii ) in the event that a registrant passes away, or ( v ) to relocate.
The third sub-section deals with” Voter Removal Programs”, specifying that states must complete “any program the purpose of which is to systematically remove the names of ineligible voters from the official lists of eligible voters” no later than 90 days prior to a primary or general election for federal office — the so-called “quiet period” provision.
This rule does not apply to all situations. If registrants ask a state to remove voters because of a criminal conviction, incapacity, death, or” correcting… registration records,” they may do so.
On its face, if Alabama’s efforts constitute a” systematic” program to remove ineligible voters, one might think that the case against Alabama is open and shut. Beyond the conceited absurdity that authorities could only” systematically” remove noncitizens from the voter rolls more than 90 days before an election, incentivizing massive fraudulent voter registration in the immediate run-up to an election, there are issues with the plaintiffs ‘ reading.
Similar Florida Case
In 2012, the state of Florida too faced challenges from the then-Obama-Biden Justice Department, and a separate group of like-minded plaintiffs, to a list maintenance program targeting noncitizens on the grounds that it violated the NVRA’s “quiet period” provision.
The Sunshine State argued that the NVRA was silent on the removal of noncitizens from the voter rolls, just as it was silent on removing fictitious or minors from the rolls, all of whom would have never been eligible to cast a ballot in the first place.
In contrast, it claimed that the NVRA only prohibited a state from implementing a systematic program targeting eligible voters who changed their residence and that the NVRA had established the grounds for removing previously eligible voters from the rolls after the 90-day period.
This led Florida to declare, in its case against the DOJ, that” the NVRA’s voter removal provision, as well as the quiet-period provision that modifies it, must be read to address only the removal of voters who were validly registered at one time”.
The state continued,” None of them ] the NVRA provisions relate to circumstances where the person was never even eligible to vote.”
According to the state,” Congress either intended that states may remove noncitizens, minors, non-residents, and fictitious persons from the voting rolls at any time, or not all,” the state speculated.
At the trial court level, federal judges in the case against the Justice Department and the private plaintiffs agreed with Florida.
The language of the statute indicates that “what Congress had in mind when it drafted these sections was removing a person on grounds that typically arise after an initial proper registration,” according to District Judge Robert Hinkle, who presided over U. S. v. Florida. Congress did not address the revocation of a noncitizen’s improperly registering with them.” Neither this [neither grounds for removal nor the 90-day quiet period ] applies to removing noncitizens who were not properly registered in the first place,” said the group.
The judge presiding over the case brought by the non-government plaintiffs, Arcia v. Florida, argued that states ‘ ability to remove non-citizens from the rolls was governed by an entirely different provision of the NVRA. The second section of Section 7 of the NVRA, titled” Confirmation of Voter Registration,” was noted by district judge William Zloch as it laid out the requirements that states must adhere to” to protect the integrity of the electoral process by ensuring the maintenance of accurate and current voter registration rolls ]s.
Judge Zloch said,” Congress intended to distinguish the removal of once-eligible voters from those who were never eligible in the first instance by creating this subsection, separate from the one covering voter removal programs.”
” It must follow”, in his view, that the confirmation section “was meant to apply to programs aimed at removing those voters whose status as registered voters was void ab initio]from the beginning ]”.
According to his counterpart in Florida’s case versus the DOJ,” the state’s duty is to maintain an accurate voting list,” but the NVRA does not require a state to allow a noncitizen to cast ballot because the state did not catch the error more than 90 days in advance.
However, the plaintiffs in Arcia v. Florida filed an appeal. Subsequently, a three-judge panel from the 11th Circuit Court of Appeals found, in a 2-1 decision, in their favor.
The majority of the time, the majority wrote,” [W] e do not accept ] the] argument that the NVRA distinguishes between the removals of registered voters who become ineligible in the first place and registrants who were never eligible in the first place. The court ruled that noncitizens may be removed from the voter rolls but not through a program that removes them from the system. The time limit, it asserted, was to ensure that broader and presumably less accurate means of cleaning the voter rolls might not unduly deprive large numbers of eligible voters from exercising their right to vote by being wrongly excluded from the rolls in the run-up to elections.
Relevance to the Alabama Case
Alabama has the right to contest the decision in Arcia in its motion to dismiss. But it believes it should prevail over the plaintiffs irrespective of that precedent — and even that that precedent supports the state.
Potential non-citizen voters are not removed from the rolls by Alabama’s program, but rather placed in inactive status. Both active and inactive voters” can vote on Election Day,” according to the state’s statement in a separate filing. Inactive voters simply need to complete a reidentification/update form at the polls ( or a voter registration form before the deadline )”.
The potential non-citizen population Alabama identified received letters urging non-citizens to ask for their names removed from the voter rolls, and asking eligible voters to fill out voter registration forms to regain their active status.
A second letter reiterating the instructions was going to be sent to those who did n’t respond to the first batch of letters.
Those failing to update their voter registration or vote in the 2024 general election” will be placed on a path to be removed from the voter list in four years, following the 2028 General Election”, the state wrote.
The state made it clear that administrative reversals made during this process would only be made after the 2028 general election, not within the election’s final 90 days.
In its motion to dismiss, the state stated that “every eligible voter among the letter recipients continues to cast a ballot.”
Leaning on the Arcia case, the state added that:
The Eleventh Circuit argued that the 90-day bar gives “eligible voters who are removed incorrectly ] ] enough time to correct any errors. 772 F. 3d at 1346 ( with more emphasis added ) Not only did Arcia emphasize the 90-day bar as a bar on removals, its rationale about having’ enough time’ to correct mistakes plainly distinguishes the facts here. Inactive voters among the 3, 251 do not require 90 days or even a day to” correct the State’s errors,” because they will be given the update form at the polls on Election Day.
The state also believes that the noncitizen letter process is not organized, because” the only removals that occur as a result of the noncitizen letter process are those that are always permitted, at the request of the voter.”
” Alternatively”, Alabama writes,” the state is constitutionally empowered to remove people who are categorically ineligible to vote at any time. The NVRA expressly upheld this authority by allowing the removal of felons and the deceased from their homes indefinitely after 90 days, just as it should apply to noncitizens.
Hans von Spakovsky, manager of the Heritage Foundation’s Election Law Reform Initiative, echoed Florida and the trial judges presiding over its prior cases in saying that the NVRA’s voter registration administration section only applies to those who are “eligible to register when they registered and describes how they can be removed.”
” The 90-day removal restriction also obviously does n’t apply to an alien who was never eligible in the first place to even register at all. If it did, a state would have to keep a person who registered to vote while violating both state and federal law and who could face legal consequences for keeping them on the voter registration roll and not removing themselves. The NVRA obviously does n’t require that, and if it did, it would be unconstitutional.
This would appear to be the position of the Biden-Harris administration.
If it is successful, only time will tell if it is successful, and noncitizens will be given the full protection of the federal government’s guarantee that they will be eligible for the voter registration rolls within 90 days of elections.
Ben Weingarten is RealClearInvestigations ‘ general editor. He is a senior contributor to The Federalist, columnist at Newsweek, and a contributor to the New York Post and Epoch Times, among other publications. Subscribe to his Weingarten newsletter. Follow him on Twitter at @bhweingarten and subscribe to Substack .com.