VA Briefs SCOTUS Re: Noncitizens on Rolls
Youngkin administration asks high court to stay a federal ruling that ordered noncitizens back on voter rolls. Plus, skyrocketing provisional ballots and other analysis of week 6 early voting.
In this issue of EPEC Team:
—SCOTUS is Accepting Briefs Re: Noncitizens in Rolls
—Early Voting Week 6: Provisional Spike, Ballots Outstanding
—‘Zero’ Propensity Voters are Showing up
Week six is underway in Virginia’s seven-week early voting stretch with about 28% of the 5.8 million active-voter population having cast a ballot during early voting.
More on that, including analysis of turnout trends, in a bit.
Virginia’s Department of Elections filed briefs to the U.S. Supreme Court Monday, Oct. 28, asking for a stay of a federal court ruling that ordered the Youngkin administration to stop removing noncitizens from the rolls as part of its maintenance programs.
The case has moved at a rapid clip since Judge Patricia Tolliver Giles, an appointee of the Biden administration, sided with progressive left groups and the Department of Justice, both of which sued Virginia to allow noncitizens to remain on voter rolls through the Nov. 5th election.
Her order says Virginia must “re-enroll” about 1,600 individuals who had attested they were noncitizens and removed.
The DOJ had claimed Virginia’s maintenance program of removing ineligible registrations from the rolls violated the so-called 90-day “quiet period” of the National Voter Registration Act (NVRA).
Critics cried politics, pointing to the clear language in the law that allows for voter-roll errors to be corrected, which is not subject to the “quiet period” that governs so-called systemic removals.
The Fourth Circuit, in a ruling Sunday afternoon, upheld the Biden DOJ, stating in part:
The NVRA’s Quiet Period Provision requires that any state “program” whose purpose “is to systematically remove the names of ineligible voters from the official lists of eligible voters” based on the failure to meet eligibility requirements must halt “not later than 90 days prior to” any election for federal office. 52 U.S.C. § 20507(c)(2)(A).
Appellants have not denied that the challenged conduct constitutes a “program” before either the district court or this one. And, like the district court, we conclude the challenged program “most certainly is” systematic. ECF 11-1, at A-463. A process is systematic if it uses a “mass computerized data-matching process” to identify and confirm names for removal without “individualized information or investigation.
Less than two weeks before the 2024 Presidential Election, and more than a month into early voting, the district court ordered Virginia and its election officials “to place over 1,600 self-identified noncitizens back onto Virginia’s voter rolls, in violation of Virginia law and common sense,” the Youngkin administration’s attorneys argued in a series of motions before the Supreme Court Monday.
About 600 of these individuals personally informed Virginia’s Department of Motor Vehicles (DMV) that they are not citizens, and about 1,000 presented noncitizen residency documents to DMV and were then positively identified as noncitizens through the United States’ own Systematic Alien Verification for Entitlements (SAVE) database.
The filing also argued that the order from Judge Giles would inflict a “form of irreparable injury” to the people of Virginia so close to the end of early voting.
Not only will the Commonwealth of Virginia be irreparably harmed absent a stay, so will its voters and the public at large. The injunction requires Virginia to restore over 1,600 self-identified noncitizens to Virginia’s voter rolls. The Fourth Circuit concluded that it could not “know that the people removed from the voter rolls. . . were in fact noncitizens, and that at least some eligible citizens have had their registrations cancelled.”
But the court failed to consider Virginia’s thorough efforts to ensure that citizens would not be removed. Over 1,000 of the removed self-identified noncitizens were confirmed as noncitizens by fresh SAVE searches.”
The DOJ had replied to the Supreme Court’s request for briefs as of Tuesday, Oct. 29.
Other groups filing “friend of the court” briefs in support of the Youngkin administration included election-law firm Restoring Integrity and Trust in Elections (RITE), the Honest Elections Project, the National Election Integrity Association, the American Center for Law and Justice, the Republican National Committee, and Republican Party of Virginia.
See the filings here.
EPEC Team is tracking the docket. #
TALLIES AND TURNOUT, WEEK 6
As of Oct. 28, Virginia’s tallies are as follows:
Countable: 1,680,701
Which breaks out to:
1,303,074 = On Machine (in person)
371,057 = Mail-in
Analysis:
L2 Data is modeling turnout estimates based on party affiliation as are other groups, including EPEC Team.
As of Monday, it had modeled political leanings of the ballots cast thus far:
Democrat: 50.8% (772,300)
Republican: 41.6% (632,000)
No party affiliation: 7.4%
Younger voters in the 18-29 category had started to inch toward double digits at about 8.4% of the tally thus far. For now, over 60% of the early vote is aged 50 or above.
Provisional Ballots are up Over 100%:
As the chart below shows, provisional ballots have skyrocketed to 6,374 since regular registration ended on Oct 15.
In 2020, the average was 2-3 a day* during early voting. Comparing the numbers now to then is difficult because Same Day Registration (SDR) only began in 2022. Those ballots are now combined with traditional provisional ballots in the Daily Absentee List (DAL).
We have observed, however, that so-called “zero propensity” voters, which EPEC Team has modeled as voters with zero voting history in Virginia’s general election going back at least five years, are showing up in increasing velocity.
Are they driving the provisional tallies?
In one week alone, zero-propensity voters have grown by close 70% to 146,962 (see red-shaded bars below).
Mobile readers can “pinch up” to see the breakouts of high-propensity voters, which EPEC Team categorizes as voters who cast ballots in 75% or more November general elections going back to 2019.
Voters who have cast ballots in less than 75% of general elections, but more than zero, are considered medium-propensity voters in our analysis.
As the chart below shows, high-propensity voters dominate the vote so far. But the steady growth of voters who have not voted before (or in five years) is worth noting.
EPEC Team also notes over 100,000 absentee ballots have been issued but have yet to be returned across Virginia’s more populous localities (see chart below).
In addition, some 246,748 ballots are listed as “pre-processed” and ready to be approved for tabulation. Congressional Districts are also closing in on the halfway mark and even two-thirds of their 2020 tallies, with significant numbers as “zero-propensity.” (See chart below).
We have a ways to go Virginia. #
EPEC Team is publishing with more frequency during the 2024 Presidential Election with analysis and news articles about voting, turnout trends, and process management.
Until our next report, we urge our readers to get out and vote!
Find your polling place here.
Check your registration here.
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