Trump’s DOJ wants to purge voters right before elections. Will the Supreme Court allow it?

The Department of Justice (DOJ) has joined the broader GOP attack on a common-sense federal law that prevents voters from being kicked off the registration rolls shortly before an election.

The DOJ is taking aim at the National Voter Registration Act’s (NVRA) 90-day “quiet period” provision, signaling its intention to cancel registrations across the nation in the days leading up to the midterm elections in November.

The alarming offensive is emerging in two court cases that could have far-reaching consequences for elections across the country.

In the first lawsuit, which is seeking Georgia’s unredacted statewide voter registration list, the DOJ contended in a pair of filings last week that the NVRA quiet period does not prevent states from purging individual voters if they’ve been flagged as potentially ineligible by the federal government.

The U.S. Supreme Court may also take up the GOP’s position if it decides to hear another lawsuit, Mi Familia Vota v. Fontes, during its fall term. There, the 9th Circuit Court of Appeals rejected Republicans’ attempt to litigate a loophole into the law by interpreting the NVRA’s quiet period as allowing noncitizens to be systematically removed during those 90 days.

And these are hardly the only cases in which the DOJ’s argument could be relevant. Though it made the argument in a lawsuit against Georgia, the department has sought unfettered access to every state’s voting records — and sued 30 states and the District of Columbia for them — in an attempt to cobble together a national voter registration list to check against the Department of Homeland Security’s Systematic Alien Verification for Entitlements (SAVE) program.

‘Systematic’ vs. ‘individual’ voter removals 

The NVRA provides that any state voter registration roll maintenance program “shall be uniform, nondiscriminatory, and in compliance with the Voting Rights Act of 1965.” It also requires that any program that aims to “systematically remove the names of ineligible voters” must wrap up at least 90 days before a primary or general election. 

This quiet period is one of the law’s central voter safeguards. It generally bars states from purging the registration rolls in the immediate runup to a federal election, when they may not have enough time to correct an improper removal before the polls close. 

The law contains an exception for individual removals based on a registrant’s own request, a voter’s criminal conviction or mental incapacity (if that bars them from voting under state law), or death.

But only a few courts have expressly considered what exactly the law prohibits. That leaves some leeway for the DOJ to now argue that the 90-day provision should be read narrowly to not prevent states like Georgia from booting voters in an “individualized fashion if the United States alerted the State of the possibility that people on their rolls were ineligible to vote.”

In other words, the DOJ contends that the NVRA’s ban on states systematically removing voters within 90 days of an election should not prevent the federal government from conducting its own systematic check of state voter rolls — and then sending states an “individualized” list of names to erase from the rolls, one by one. 

In doing so, the federal government is relying heavily on a single line written by the 11th Circuit Court of Appeals back in 2014. In Arcia v. Florida Sec. of State, the court ruled that Florida’s program for identifying and removing non-citizens by comparing the state’s voter registration lists with federal citizenship databases violated the NVRA’s quiet period. 

But the decision didn’t completely forbid states from removing noncitizens during the quiet period. “The 90 Day Provision by its terms only applies to programs which ‘systematically’ remove the names of ineligible voters,” Circuit Judge Beverly Martin wrote for the court majority. “As a result, the 90 Day Provision would not bar a state from investigating potential non-citizens and removing them on the basis of individualized information, even within the 90-day window.”

The DOJ is now arguing in Georgia — which sits in the 11th Circuit and, as a result, is controlled by its precedents — that the exception in Arcia means the federal government can do systematic citizenship checks and then hand the results over to states for removal “on the basis of individualized information” during the quiet period.  

The 9th Circuit Court of Appeals built upon Arcia last year in its decision in Mi Famila Vota v. Fontes. There, voting rights groups successfully sued to block an Arizona law that would have required county officials to conduct the “periodic cancellation of registrations” after checking citizenship status using “available databases including… SAVE.” 

Republican appellants defending the law argued that the 90-day quiet period didn’t regulate the “periodic cancellation of registrations and does not forbid removal of noncitizens from voter rolls.” But the judges disagreed, saying Congress wrote that “any program” for systematically removing voters was barred. 

The court also rejected the claim that the Arizona law’s removals were individualized because it directed officials to send mail notices, noting that the law ran voter information through databases like SAVE. 

“This periodic cancellation of registrations does not rely on ‘individualized information or investigation’ but rather comparisons to databases,” Judge Ronald Gould wrote for the majority, quoting Arcia. “Cancellation of batches of registered voters based on a set procedure is systematic as opposed to individualized.”

What now?

While the 9th Circuit’s decision isn’t binding in Georgia, which is in the 11th Circuit, it gets to the meat of the DOJ’s argument. The court there rejected the Republican claim that the concept of a program for “systematically remov[ing] the names of ineligible voters” should be read narrowly — as DOJ now contends by arguing the restriction only prohibits state and local officials from systematically identifying potential noncitizens, rather than the federal government (or, arguably, non-government entities).

That’s because Congress clearly wrote the 90-day quiet period to limit the damage caused by mass removal mistakes. 

Eligible voters “removed days or weeks before Election Day will likely not be able to correct the State’s errors in time to vote,” Gould noted, citing Arcia, “In sharp contrast, individualized removals that are not prohibited by the 90-day Provision are based on more ‘rigorous individualized inquir[ies], leading to a smaller chance for mistakes.’”

Notably, when the appeals courts in Arcia and Mi Familia Vota handed down their decisions, SAVE still required officials to check citizenship status one-by-one. After President Donald Trump issued an executive order last March, DHS upgraded the program to allow for bulk uploads, leading to tens of millions of registrations being run through the system.

Despite the DHS’s touted upgrades to SAVE, the program continues to return false positives, misidentifying U.S. citizens as likely noncitizens and flagging them for removal when state officials have used it. 

Georgia already engages in some of the most aggressive registration maintenance programs in the U.S. The state’s purges of hundreds of thousands of registrants from its rolls in recent years have erroneously included tens of thousands of eligible voters.

To accept the DOJ’s argument in Georgia, the courts would have to believe that Congress wanted to only prevent states from conducting the systematic identification of ineligible voters, and that it would be fine if someone else ran a systematic program while the states then made the subsequent removals. 

And to buy that argument would require ignoring that the Trump administration has sought to systematically remove voters using an executive order, a stalled federal anti-voting bill, and the DOJ’s pursuit of state voter rolls.  

Hanging over all this is uncertainty about what the U.S. Supreme Court might do if it agrees to hear Mi Familia Vota. 

The Supreme Court previously considered the NVRA’s 90-day rule in a 2024 shadow docket decision. In Virginia Coalition for Immigrant Rights v. Beals, the court’s six conservative justices reinstated Virginia Gov. Glenn Youngkin’s (R) executive order that launched a voter roll purge just as the quiet period began, which the district and appellate courts had blocked. 

The majority there offered no explanation of its decision whatsoever.