The Supreme Court allows Virginia to remove suspected non-citizens from the voter rolls

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A divided Supreme Court on Wednesday allowed Virginia to continue a program that state officials say is aimed at purging suspected non-citizens from its voter rolls, facing one of the Supreme Court's first major decisions related to next week's election on the Republican side.

The decision, made without justification by a majority of conservative justices, will allow the state to keep certain voters it deems non-citizens off the rolls.

The court's three liberals — Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson — disagreed. The Liberals did not explain their reasoning.

Although the case affected a relatively small number of voters in a state that is not considered a battleground in the dispute between former President Donald Trump and Vice President Kamala Harris, the case fed into a larger political narrative that has been widely expressed by some Republicans Widespread voting was spread to non-citizens.

“The Biden-Harris administration’s legal interference was irresponsible, reckless and political,” Texas Attorney General Ken Paxton said in response to the decision. “States have a constitutional duty to prevent non-citizens from voting. The Supreme Court did the right thing.”

But voting rights groups pointed to evidence that Virginia's voter purge efforts also included eligible voters. These groups called the unsigned Supreme Court order “outrageous” and “disturbing.”

“Every eligible voter has the right to cast their vote and have their vote counted, and this ruling does not change that,” said Harris campaign spokesman Charles Lutvak. “Non-citizen voting remains illegal under federal law.”

Meanwhile, due to the lack of justification, legal experts were unable to understand the significance of the court decision. While this is not uncommon in the court's “shadow docket,” which typically handles emergencies, in high-profile cases the court sometimes leaves clues as to its reasoning.

In this case the majority said nothing.

“This is one of the clearest examples of the abuse of the Shadow Act,” said Protect Democracy lawyer Orion Danjuma, who complained that the groups “have no reason to understand the Supreme Court’s demand.”

Both the program and the litigation took on sharp political undertones as Trump and other Republicans have pushed false narratives about widespread voting by non-citizens. At issue are about 1,600 voter registrations that Virginia said came from self-identified non-citizens but who a U.S. district court said had not been fully verified for citizenship status.

Non-citizens are not allowed to take part in federal elections; None of the lower courts' rulings changed this.

Trump and other Republicans have seized on claims of illegal voting and it was part of the argument they used to explain the former president's loss in 2020. However, documented cases of non-citizens voting are extremely rare. A recent audit of Georgia's 8.2 million residents found that there were only 20 registered non-citizens – only nine of whom had voted.

The Virginia case began with an order signed in August by Virginia Gov. Glenn Youngkin, a Republican, calling on election officials to take more aggressive steps to register residents who self-identify as non-citizens with the Department of Motor Vehicles identified, compared with the electoral rolls and cleaned up these matches.

Youngkin called the Supreme Court's order on Wednesday a “victory for common sense and electoral justice.”

The state's voters, he said, “can cast their ballot on Election Day knowing that Virginia's elections are fair, secure and free from politically motivated interference.”

Voter and immigrant rights groups called the Supreme Court's decision “outrageous” and predicted it would cause confusion.

“The Supreme Court allowing Virginia to conduct a last-minute purge involving many known eligible citizens in the final days before an election is outrageous,” said Danielle Lang of the Campaign Legal Center. “But voters will decide this election, not the courts. Eligible voters in Virginia should know that regardless of this purge, they can register to vote and cast their ballot on Election Day.”

A Justice Department spokesman said the Biden administration disagreed with the order.

“The department filed this lawsuit to ensure that every eligible American citizen can vote in our elections,” the spokesman said.

The Biden administration and voting rights groups filed a lawsuit, and a U.S. district court concluded last week that at least some eligible U.S. citizens had their registrations under the program revoked. District Judge Patricia Tolliver Giles said that none of the parties involved in the case knew for sure the citizenship status of the purged voters because the information was not verified.

Opponents of the program relied on a 1993 law, the National Voter Registration Act, which prohibits states from making “systematic” changes to voter rolls within 90 days of a federal election. The Biden administration said Youngkin's order created just such a systematic program within the so-called “quiet period” required by federal law.

Virginia argued that the quiet period bans applied only to eligible voters and not to non-citizens.

None of the lower court's decisions prevented the state from conducting individual eligibility assessments or permanently removing noncitizen voters from voter rolls, nor did they grant noncitizens the right to vote in federal elections. Federal law only prohibits “systematic” changes.

A three-judge panel of the 4th U.S. Circuit Court of Appeals – all appointed by Democratic presidents – upheld most of Giles' rulings, paused the program and ordered the state to reinstate the 1,600 registrants.

In their emergency appeal to the Supreme Court, Virginia election officials relied in part on a still-developing legal theory that warns federal courts against making last-minute changes to the status quo of election rules before an election. The so-called “Purcell Principle” is intended to prevent federal courts from being drawn into last-minute election controversies.

Virginia argued that the federal district court violated that principle by pausing the program. Voting rights groups countered that there is a federal law at play in this case that expressly allows plaintiffs to challenge last-minute voting changes.

Lawyers for Virginia also raised the possibility of same-day registration. Those whose registrations were wrongfully canceled were able to re-register at an in-person polling station by confirming their citizenship.

Virginia's opponents countered that this option would not solve the problem for purged voters who plan to vote by mail without knowing that their registrations had been canceled and that it would cause confusion at polling places – especially if poll workers did not provide adequate notice Be prepared for this scenario.

Since the Supreme Court did not provide a reason for its decision, it is not clear which Virginia arguments were persuasive or whether the majority of justices decided that the election was too close for federal courts to get involved in election disputes.

The problem with assuming the court decided the case based on Purcell and timing is that the National Voter Registration Act's “quiet period” inevitably presents challenges that come directly with an election, Richard said Briffault, professor and election law expert at Columbia Law School.

Given that the lower courts consistently viewed the case as a loser for Virginia, the Supreme Court's silence was particularly puzzling, he said.

“It’s hard to say because there’s nothing there,” said Richard Briffault, a professor and election law expert at Columbia Law School. “It’s pretty noticeable.”

This story has been updated with additional details.

CNN's Tierney Sneed contributed to this report.