SCOTUS to Decide Conflict Between Motor Voter Act and Alien Voting Laws

On October 11, 2024, the Department of Justice (DOJ) filed a lawsuit against Virginia Governor Glenn Youngkin over his recent Executive Order, escalating a legal dispute involving two federal laws: the National Voter Registration Act of 1993 (NVRA), known as the Motor Voter Act, and 18 U.S. Code § 611, which prohibits voting by non-citizens. This conflict has now reached the U.S. Supreme Court, setting the stage for a significant ruling on federal election laws and how states enforce voter eligibility.

Governor Youngkin’s Executive Order, issued on August 7, 2024, intended to clarify how Virginia would comply with both the NVRA and 18 U.S.C. § 611. The NVRA requires states to offer voter registration as part of the driver’s license application process to streamline voter registration and increase access.

Currently, 44 states, including Virginia, provide this option. However, under 18 U.S.C. § 611, non-citizens are explicitly barred from voting in U.S. federal elections. Despite this prohibition, there has been limited enforcement of this statute, raising questions about whether states adequately prevent ineligible voters from being registered.

One of the challenges, Youngkin argues, is that the two laws are not necessarily aligned. While the Motor Voter Act promotes accessible registration, it does not require states to verify citizenship rigorously. Critics suggest that this lack of verification allows non-citizens to potentially end up on voter rolls. The DOJ, on the other hand, maintains that the NVRA’s provisions should take precedence, especially during the “quiet period” established by the NVRA, which prohibits the removal of names from voter rolls within 90 days of an election.

Historically, election officials have largely trusted that the Motor Voter registration process implicitly aligns with federal citizenship requirements. Yet many states do not conduct regular audits to confirm this. Without audits, it’s unclear if applicants who register through Motor Voter meet the federal requirement of citizenship, leading to what some see as a “presumption of compliance” rather than actual verification.

This gap in enforcement prompted Governor Youngkin to take action in Virginia. His Executive Order aimed to close this loophole by establishing stricter processes for citizenship verification to ensure that ineligible voters are not added to Virginia’s voter rolls.

Federal reluctance to enforce § 611 is not new. During the 2020 election, for instance, former Attorney General William Barr seemed unaware of § 611’s existence. Additionally, Director of National Intelligence briefings on foreign interference in U.S. elections have avoided direct mentions of the statute. The absence of active federal enforcement has fueled concerns that § 611 is effectively ignored, allowing ineligible individuals to vote without consequence. This apparent neglect may have motivated Youngkin to address the issue through his Executive Order.

Advocates for stricter enforcement argue that the current system creates vulnerabilities in election integrity. They claim that applicants who may lack citizenship can easily register to vote through the Motor Voter system without adequate oversight. Critics, however, counter that imposing additional verification steps could discourage legitimate voter participation and create unnecessary barriers.

Some election integrity advocates have conducted their own investigations. For example, a 2019 Freedom of Information Act (FOIA) request in Virginia’s Prince William County revealed that at least 6% of registered names included unlawful voters, and some estimates suggest the number could be as high as 12%. This lack of oversight raises questions about the effectiveness of state and federal safeguards to verify voter eligibility.

In its lawsuit, the DOJ argues that Governor Youngkin’s order contradicts the NVRA’s quiet period provision, which bars removing names from voter rolls in the 90-day period before an election. The DOJ maintains that this provision ensures eligible voters are not disenfranchised. Virginia, however, contends that the state must prioritize federal citizenship requirements under § 611, which unambiguously restricts voting to U.S. citizens.

Adding to the complexity, advocacy groups have joined the legal fray. The National Election Integrity Association (NEIA), a Virginia-based nonprofit, recently filed an amicus brief in support of Youngkin’s order. According to NEIA, the quiet period provision under the NVRA does not apply to non-citizens since they are inherently ineligible to vote and thus fall outside the NVRA’s protections.

NEIA argues that Virginia should be permitted to remove non-citizens from its rolls, even within the quiet period, since they do not qualify as lawful voters under the Motor Voter Act. The NEIA brief contends that the lower courts’ decisions to enjoin Youngkin’s order should be reversed, allowing the state to continue citizenship verification efforts.

Now, the Supreme Court faces the task of determining which federal law should take precedence. Should the Motor Voter Act’s push for easy voter registration come first, or does the citizenship requirement in § 611 outweigh it? Virginia’s stance is clear: to be on the voter rolls, individuals must be lawful U.S. citizens. This, they argue, should apply even during the NVRA’s quiet period. Federal officials, however, argue that the NVRA’s quiet period is essential to prevent last-minute purges that might unfairly target eligible voters.

The outcome of this case could have sweeping implications for U.S. elections. A ruling in favor of Virginia could lead other states to adopt similar measures to enforce stricter citizenship verification processes, potentially reshaping the balance between accessibility and security in U.S. voting laws. Conversely, a decision supporting the DOJ’s position might cement the NVRA’s protections, including the quiet period, as a higher priority than enforcement of § 611.

This landmark case, coming before the Supreme Court just before the 2024 election, underscores the unresolved tension between ensuring access to the ballot and safeguarding election integrity.