SCOTUS Will Address the Collision of Two Federal Election Laws

Virginia Governor Glenn Youngkin issued an Executive Order on Elections on August 7, 2024.  On October 11, 2024, the Department of Justice chose to sue Governor Youngkin on his Executive Order and the case is now in front of the Supreme Court.  The basic issue at hand is the collision of two Federal Laws, the 1993 Motor Voter Law and 18USC611 Voting by Aliens.

Governor Youngkin’s Executive Order helped clarify abidance by the Commonwealth of Virginia on these two different Federal Election Laws.  The National Voter Registration Act Of 1993 (NVRA) (often called “Motor Voter”) mandates the option to register to vote when applying for a Driver’s License in 44 states including Virginia.

There’s also 18USC611 called “Voting by Aliens”.  For some reason this law is rarely cited or referenced, even by constitutionally minded election integrity experts. 18USC611 makes it unequivocal and non-debatable that one must be a lawful U.S. Citizen to vote in a U.S. Federal Election.

The challenge is that for decades no one has bothered to verify that these two Federal Laws are operating seamlessly and cooperatively with each other.  There has been this presumption of trust between Motor Voter and 18USC611.  Somehow there is some magical, transparent, auditable process that verifies U.S. Citizenship before a Motor Voter derived name is put on the rolls.  The existence of such a process is a huge presumption of truth – especially when there appears to be no state that conducts audits of such supposed processes and releases the detailed process, the audit process, and results to the public.

There also appears to be no interest by the Federal Government in enforcing 18USC611.  Attorney General Barr was apparently unaware of 18USC611 during the 2020 election.  Recently the Director of National Intelligence gave briefings on Foreign Interference in U.S. Elections and did not mention 18USC611 nor would respond to questions on whether an Illegal Alien voting in a U.S. Election amounted to Foreign Interference.

Possibly because there was no confidence that the Federal Government was ensuring that these two Federal Laws were properly working in harmony, Governor Youngkin chose to address this matter in his Executive Order.  Open Border advocates who are attempting to get as many illegals into the country as possible and sign them up for driver’s licenses have a vested interest in ensuring no light is shown on the lack of verifiable and auditable processes to validate U.S. Citizenship.  Line One on Driver’s License applications in likely all states asks whether the applicant wants to register to vote.  Who vets and ensures the applicant who marks “Yes” is a legal U.S. Citizen?  That is a great question.

My own Election Registrar in Prince William County had no responsive “records” to demonstrate they were following the Governor’s August 7, 2024, Executive Order nor that they had a process to ensure Motor Voter names were authenticated before being placed on the election rolls.  In 2019 I did a Freedom of Information Act Request and found that at a minimum, 6% of the names on the election rolls in my county included unlawful voters.  Applying other factors, the number of unlawful voters on the rolls was likely 12% or greater.

County Officials most often called “Registrars” are normally the responsible, legal, sworn, constitutional official for ensuring a voter is a lawful voter.  Yet my Registrar, and likely many of the 3,300 or so County Registrars across the country appear to be presuming citizenship validation is taking somewhere else in their state bureaucracy.

The Federal Government has failed to address or resolve the obvious gap and seam between two key Federal Election Laws.  The DOJ’s major point of grievance in their October 11, 2024, lawsuit against Virginia is that Motor Voter gives a 90-day window in advance of an election where names can’t be removed from the Election Rolls – this is also known as the “NVRA Quiet Period Provision”.

DOJ is apparently saying that this 90-day window trumps 18USC611.  Now the showdown has been set.  The view of Virginia is that 18USC611 trumps the 1993 Motor Voter Law.  To be retained on an Election Rolls, one must be a lawful voter.  How could one be retained and not removed during this 90-day window if they were not lawful to be on the election roll in the first place?

Governor Youngkin of Virginia has stepped in where the Federal Government has failed to act – and he gets sued by the Department of Justice (DOJ).  With the SCOTUS case a showdown has been established; which law has precedence.

Amicus briefs have been filed.  One of the first to arrive was from the National Election Integrity Association (NEIA), a Virginia non-profit focused on free and fair elections (and for full disclosure, I am the Director of the NEIA).  The predicate of the NEIA Amicus filing in support of Virginia is:

“The NVRA’s Quiet Period Provision, however, does not apply to the removal of noncitizens because they are outside of the NVRA’s statutory construction. In fact, a noncitizen, who is inherently ineligible to vote in United States elections, cannot obtain protections under the NVRA at all since a noncitizen cannot legally become an eligible applicant or a registrant under the NVRA. Therefore, Virginia’s removal of noncitizens within 90 days of the election could not violate the NVRA or other federal law. Accordingly, the injunction granted by the Eastern District of Virginia, and affirmed by the Fourth Circuit Court of Appeals, should be vacated as Plaintiffs were not likely to succeed on the merits of their case, among other reasons.”

The legal rumble has been set – and the outcome may be decisive in Election 2024.