Why noncitizens in Alabama could gain voting protections

As reported here previously the DOJ recently issued guidance seemingly threatening to sue states and election integrity watchdogs who might work with them to clean voter rolls, if they do so within 90 days of Election Day. 

The feds claim this would violate the so-called “quiet period” provision of the National Voter Registration Act (NVRA) of 1993.

Now, the DOJ has made good on the threat, filing suit against the state of Alabama in litigation that could have national repercussions. 

At issue is an effort initiated by Alabama Secretary of State Wes Allen on August 13 — 84 days from election day 2024 — to inactivate and seek to remove non-Americans among a population of 3,251 individuals registered to vote in the state but issued noncitizen ID numbers by the Department of Homeland Security.

Weeks later the Alabama Coalition for Immigrant Justice and like-minded groups sued the state, 

alleging the list maintenance effort discriminatorily targets and burdens subsequently naturalized citizens and U.S.-born citizens wrongly swept into the state’s review, 

violating the Constitution, the Voting Rights Act, and the NVRA’s aforementioned “quiet period” prohibitions.

On September 27th, the DOJ filed its own suit, also alleging Alabama’s list maintenance effort violated the NVRA’s “quiet period,” whereafter the two cases were consolidated. 

The NVRA is at the heart of current controversies around illegal immigration and noncitizen voting. 

Because Congress killed an amendment that would have allowed states to ask for proof of citizenship while the bill was being debated, illegal aliens have ended up on the rolls.

Section 7 of the NVRA deals with voter registration administration, calling for states to engage in list maintenance efforts,

 including removing eligible voters (i) at registrant’s request, (ii) due to criminal conviction or mental incapacity, (iii) should a registrant die, or (iv) should a registrant move.

Its third sub-section deals with “Voter Removal Programs,” specifying 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.

If Alabama’s efforts constitute a “systematic” program to remove ineligible voters, one might think that the case against it was open and shut. 

But in 2012, while pursuing a program to remove non-citizens from the voter rolls during the “quiet period,” Florida successfully fended off legal challenges from the then-Obama-Biden Justice Department, and a separate group of like-minded plaintiffs.

The Sunshine State argued the NVRA was silent on the removal of noncitizens from the voter rolls, just as it was silent on removing minors or fictitious individuals from the rolls — all of whom would have never been eligible to register to vote in the first place.

Conversely, it contended, the NVRA specified the grounds for removing previously eligible voters from the rolls, and then, in the 90-day quiet period, specified that a state was solely prohibited from implementing a systematic program targeting for removal eligible voters who changed their residence.

“None of…[the NVRA provisions] involve[] situations in which the individual was never eligible to vote in the first place,” the state argued.

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 covering “Confirmation of Voter Registration.”

“It must follow,” Judge William Zloch wrote, that this sub-section “was meant to apply to programs aimed at removing those voters whose status as registered voters was void ab initio [from the beginning].”

“[T]he NVRA does not require a state to allow a noncitizen to vote just because the state did not catch the error more than 90 days in advance,” his counterpart in the case brought by the DOJ wrote.

The plaintiffs in Arcia v. Florida however appealed, and a three-judge panel from the 11th Circuit Court of Appeals found in their favor.

Alabama filed a motion to dismiss, reserving the right to challenge the appellate court’s ruling in Arcia. 

But it says it need not even overturn that ruling to win. It argues its program does not remove potential non-citizen voters from the rolls but rather puts them in inactive status. As the state put it in a separate filing, both active and inactive voters “can vote on Election Day. 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 instructing non-citizens to request removal from the voter rolls, and U.S. citizens eligible to vote to complete voter registration forms to restore their active status. 

Those who did not reply to the first batch of letters were to receive a second letter reiterating the instructions.

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 emphasized that administrative removals associated with this process would only be executed after the 2028 general election – not within the final 90 days in the run-up to the 2024 election.

Time will tell whether noncitizens are to receive the full protection of the federal government of voting rights never granted them, should they make it on the voter registration rolls within 90 days of elections.