Virginia at the forefront of this year’s election security battle

An order that Virginia Gov. Glenn Youngkin issued over the summer has turned into an October slugfest with the federal government over election security.

Youngkin, a Republican, signed Executive Order 35 on Aug. 7. Along with codifying the use of paper ballots in Virginia elections, the order instructed election officials to make daily updates to voter rolls and remove any noncitizens. The directive came at the start of this year’s “quiet period,” a time during which federal law prohibits any systematic changes to voter rolls to prevent confusion before an election.

This past weekend, the Department of Justice filed a lawsuit against Virginia, the state election board, and the commissioner of elections for tampering with voter rolls. Voting rights groups have filed additional lawsuits alleging the governor’s actions discriminate against migrants. The DOJ alleges that Virginia has wrongfully canceled the registrations of lawful voters in violation of the quiet period.

The National Voter Registration Act, nicknamed the “motor voter law,” mandates that all states provide driver’s license applicants an option to register to vote. It also requires that each state maintain voter rolls and keep them accurate, though states have flexibility in how they do this. During the 90-day quiet period before an election, officials may remove individuals from the rolls, such as if a voter dies, but systemwide purges are not allowed.

“States historically have sometimes engaged in shenanigans, sometimes in voter suppression,” Henry Chambers, professor at law at the University of Richmond, told WORLD. He cited a purge of thousands of Florida voters in 2000 that stemmed from a botched tech system that was only supposed to remove convicted felons. Voters without felony records showed up at the polls and were unable to vote in the presidential election.

“If this happens very close to the election, that will lead to voters being removed from the rolls,” Chambers said. “And then those voters don’t really have a proper opportunity to get back on the rolls in time. So the NVRA comes in and says you can’t do that so close to an election.”

In Virginia, the DMV shares data regularly with the state election system, called ELECT. If a resident checks the “no” box for citizenship on a DMV form, that information is shared with ELECT, but the DMV is not responsible for verifying citizenship. Then ELECT compares the names of purported noncitizens to see if they are on the voter rolls. If a name is flagged for suspected noncitizenship, it is sent to a local registrar.

According to Youngkin, more than 6,000 people who checked the “no” box for citizenship were taken off the rolls between January 2022 and July 2024. In August, he implemented a new daily program that would share DMV data with ELECT. The election board then mails a notice of intent to cancel unless affected voters provide proof of citizenship within 14 days. If the notice goes unanswered, the name is struck.

The governor’s office and the attorney general’s office have not said how many names have been removed as a result of the executive order, but the DOJ lawsuit reports that some counties have removed up to 90 names since August. The lawsuit also complains that the notice of intent to cancel does not provide any information on how to re-register if they were mistakenly removed.

In a statement obtained by WORLD, Richard Cullen, an attorney for Youngkin, argues that the governor’s action cleans up the rolls and complies with federal requirements.

“Federal law does not prohibit the removal of noncitizens from the voting rolls,” the memo said. “The 90-day ‘quiet period’ under the National Voter Registration Act (NVRA) is not relevant to this process since Virginia conducts an individualized—not systematic—review per Virginia law in order to correct registration records.”

The courts must determine whether the daily updates count as a systematic or individual action. In a statement, Youngkin called the litigation a “desperate attempt to attack the legitimacy of the elections in the Commonwealth.”

Former Virginia Attorney General Ken Cuccinelli now leads the Election Transparency Initiative, a right-leaning nonprofit. He also served briefly in the Trump administration as acting director of the U.S. Citizenship and Immigration Services, a senior official in Homeland Security, and on the White House Coronavirus Task Force. He now advocates for stricter voting regulations and argues that nationwide opportunities for election fraud abound. He found the DOJ’s timing to be suspicious, since Youngkin originally issued the order in August.

“If you want any evidence that this lawsuit is anything other than political posturing for the benefit of [Kamala] Harris, it’s the fact that [the Justice Department] could have filed it any time in the last two months, and they chose not to do that,” Cuccinelli told WORLD. “If they serve them this week, then the due date for Virginia’s response would be Election Day. So they couldn’t possibly have actually intended to deal with the substance of the issue. They were just making a political statement.”

Cuccinelli also argued that removing noncitizens does not violate the quiet period because it falls under the exceptions to the rule. Section 8 of the NVRA allows removals within 90 days at the voter’s request or because of diagnosed mental incapacity, a felony conviction, death, or a change of residence.

“People who were never qualified to be on the voter rolls in the first place can always be removed,” Cuccinelli said. “This has been the Virginia law for some time. It just got publicized when the governor issued his executive order.”

Chambers, the University of Richmond law professor, says the politicization runs the other way. Youngkin has said he is implementing a 2006 law that then–Gov. Tim Kaine, a Democrat, passed to maintain the voter rolls. Chambers argued Youngkin has been in office for two years and could have passed the executive order earlier.

“This is not something that the Youngkin administration didn’t know about more than 90 days before the election,” Chambers said. “I think part of what’s going on is that they are pushing this through as a political notion to foreground the concept that there’s a substantial number of people on the voter rolls who shouldn’t be there. And as a consequence, it’s not clear that you can really be sure that the election was on the up and up.”

The Republican Party has warned repeatedly that a rise in illegal immigration could affect this year’s elections. House Republicans passed the Safeguard American Voter Eligibility (SAVE) Act in July to require states to find proof of citizenship for voter registration. It is already against federal law for noncitizens to vote in federal elections, but conservatives have raised the alarm that those without legal status are still registering to vote. Former President Donald Trump posted on social media that the DOJ lawsuit is a weaponized attack to allow election fraud.

“I think there is going to be some cheating in this election,” House Speaker Mike Johnson, R-La., said in an interview on CBS’ Face the Nation on Sunday. “There’s a number of states that are not requiring proof of citizenship when illegals or noncitizens register to vote.”

Fairfax County GOP chair Katie Gorka said election integrity concerns are top of mind for her party this year. She supports Youngkin’s executive order and claimed that unchecked voter rolls could alter November’s election results.

“The bottom line is the Department of Elections was not verifying the citizenship status of these individuals,” Gorka told WORLD. “We actually think that there are probably tens of thousands of noncitizens on the Virginia voter rolls, and that the 6,303 who were removed is a drop in the bucket. It’s a great first step, but it is not enough.”

The Virginia Coalition for Immigrant Rights (VACIR) filed a separate lawsuit over removing suspected noncitizens from the rolls on Oct. 8. The organization, along with the state’s League of Women Voters chapter, accused the Virginia Board of Elections and Attorney General Jason Miyares of discriminating against migrants. The VACIR lawsuit alleges that the DMV data Youngkin has ordered to be used could be out of date, especially in the cases of naturalized citizens who had not yet taken the oath when they selected a “noncitizen” box on a DMV form.

“The careless purging of voters without proper fact checking or oversight is a direct assault of our American democracy,” VACIR chair Mohamed Gula said in a statement. “Executive Order 35 is a targeted attack on naturalized citizens, and is the latest of many unsubstantiated policy attacks based on political misinformation and not facts.”

Chambers allowed that neither side wants noncitizens to vote, but he said enough safeguards already exist to preclude the need to tamper with rolls with this close to the election.

“The problem with this situation is not that Virginia is trying to make sure that the rolls are clean,” Chambers said. “It’s that it’s being done at the last minute. It’s not like Democrats are saying, ‘don’t keep the rolls clean.’ It’s just that we’ve seen this occur right before elections, and it’s not cool.”

Gorka argued that even if human error removes a suspected noncitizen who should have the right to vote, that can be fixed at the polls.

“Why should you ever keep noncitizens on the voter rolls?” Gorka said in an interview with WORLD. “The greater risk is noncitizens voting and disenfranchising Virginia voters. And just to be clear, the way the process works is people who are removed have ample opportunity to get put back on. Either within 14 days, or anybody can also show up on Election Day and vote provisionally if they provide proper ID.”

Early voting began in Virginia on Sept. 20, and early registration to vote ended on Tuesday. However, Virginia also allows eligible voters to register at the polls on Election Day.