DOJ Urges Supreme Court To Take Up Case That Could Lead To Pre-Election Voter Roll Cleanups

Authored by Matthew Vadum via The Epoch Times,

The U.S. Department of Justice (DOJ) has urged the U.S. Supreme Court to hear a case that could determine whether states are allowed to remove noncitizens from their voter rolls in the 90 days leading up to an election.

In the case, the DOJ argues that the National Voter Registration Act (NVRA) of 1993 does not prevent states from taking noncitizens off voter rolls before elections.

The National Voter Registration Act is also known as the Motor-Voter law because it allows people to register to vote with relative ease at motor vehicle agencies and government offices. The NVRA requires states to make a reasonable effort to remove ineligible individuals’ names from voter rolls, but a federal appeals court ruled that names cannot be removed in the 90 days before an election.

The DOJ made its argument on May 26 in a brief urging the high court to grant the petition in Republican National Committee (RNC) v. Mi Familia Vota.

If the Supreme Court grants the RNC’s petition, states may be allowed to purge voter rolls close to elections.

Arizona law allows only U.S. citizens to vote in federal elections. It requires people registering to vote to produce documentary proof of citizenship, such as a passport, birth certificate, or naturalization papers. It also allows the names of noncitizens to be removed from voter rolls.

If election officials procure “information” from periodic inspections of the state’s voter rolls that confirm a “person registered is not a United States citizen,” they “cancel the registration,” according to the brief.

A 2018 consent decree, reached as part of a court-enforced settlement from a previous lawsuit, required the state to register applicants who lack proof of citizenship as “federal-only” voters who could participate in federal elections but not state or local elections. A consent decree is a legally binding court-enforced settlement made with the consent of the litigants.

Mi Familia Vota and other groups sued, alleging that the Arizona law violates the NVRA and the consent decree.

A federal district court ruled mostly for the plaintiffs, issuing an injunction that blocked certain parts of the state law, including the proof of citizenship requirement, the brief said.

The Supreme Court in August 2024 issued a partial stay of the district court order that allowed Arizona to continue to enforce its proof of citizenship requirement when voters register using state forms.

In February 2025, the U.S. Court of Appeals for the Ninth Circuit upheld the injunction, finding that the consent decree blocks the proof of citizenship requirement and that the NVRA preempts, or supersedes, the requirement—among other things. The appeals court also blocked the removal of names from the voter rolls in the 90-day run-up to an election, a practice it said the NVRA already forbids, according to the brief.

The Supreme Court’s partial stay prevails over the Ninth Circuit’s block of the proof of citizenship requirement. The high court’s stay will remain in effect until the circuit court disposes of the appeal, or the Supreme Court issues a final decision or denies the RNC’s petition for review.

Does Not Apply to Noncitizens: DOJ

The DOJ argues in its brief that the NVRA’s restrictions on taking individuals’ names off the list of eligible voters in the 90 days preceding an election “do not apply to noncitizens who were never eligible to register in the first place.”

The Ninth Circuit’s ruling to the contrary is “badly mistaken,” deepens a split among federal courts of appeals, and “risks significant harm,” said Hashim Mooppan, filing as acting U.S. solicitor general for the purposes of this case. Solicitor General D. John Sauer himself is recused in the case.

Using the reasoning of the Ninth Circuit, “a State could never remove a noncitizen from its voter rolls once registered,” he said.

“That cannot be correct and cries out for reversal,” Mooppan said, urging the Supreme Court to grant the RNC’s petition.

Although the current federal voter registration form requires only that applicants attest that they are citizens, the NVRA gives states the flexibility to mandate that applicants supply documentary proof of citizenship when using state voter registration forms, he said.

Mooppan said the Supreme Court in Arizona v. Inter Tribal Council of Arizona Inc. (2013) gave Arizona’s prior proof of citizenship requirement as an “example” of the rule that “state-developed forms may require information the Federal Form does not.”

The Ninth Circuit’s decision “cannot be reconciled” with this precedent, and the majority on the circuit panel “did not even try,” he said.

The RNC’s petition “presents both of these questions and provides a good vehicle to address them,” Mooppan said.

It is unclear when the Supreme Court will consider the petition.

The Epoch Times contacted the RNC’s attorney, Gilbert Dickey of Consovoy McCarthy in Arlington, Virginia, and Mi Familia Vota’s attorney, David Fox of Elias Law Group in Washington, for comment. No replies were received by publication time.