Virginia is taking its fight to remove noncitizens from its voter rolls to the Supreme Court. The attorney general for Virginia, Jason Miyares, says the state filed an emergency stay with the Supreme Court on Sunday night.

“Americans [sic] citizens — and no one else — should determine American elections,” Mr. Miyares wrote on X.

The move comes after an appeals court, in a rare Sunday night ruling, declined to overturn a District Court’s order for Virginia to reinstate more than 1,600 people from its voter rolls. A three-judge panel for the 4th Circuit Court of Appeals said Virginia is “able to prevent noncitizens from voting by canceling registrations on an individualized basis or prosecuting any noncitizen who votes.” 

However, the judges said Virginia’s automated system for identifying noncitizens violated a 90-day quiet period ahead of an election that prevents states from making major changes to their voter rolls implemented under the National Voter Registration Act of 1993.

The Justice Department sued Virginia earlier this month after Governor Youngkin issued an executive order requiring the Department of Elections to conduct “daily updates to the voter list” to remove noncitizens. Lawyers for the department argued that officials would have removed citizens who mistakenly identified themselves as noncitizens on registration forms by checking the wrong box if the state was allowed to purge its voting records.

Virginia officials said individuals identified as noncitizens were notified that their registration would be canceled and given two weeks to prove they were citizens.  Additionally, they argued the 90-day prohibition on automated systems does not apply to efforts to remove noncitizens. 

An attorney for Virginia, Charles Cooper, conceded that there may be some citizens among the 1,600 who mistakenly identified as noncitizens. However, he said requiring Virginia to reinstate all 1,600 individuals would mean “there’s going to [be] hundreds of noncitizens back on those rolls.”

“If a noncitizen votes, it cancels out a legal vote. And that is a harm,” Mr. Cooper said. 

On Friday, a District Court judge, Patricia Giles, granted an injunction brought against Virginia and ordered it to reinstate the canceled voter registrations. She said state officials did not have evidence to show the individuals who had their voter registrations canceled were noncitizens. She also said the state’s automated system violated the National Voter Registration Act. 

After Judge Giles’ ruling, Mr. Youngkin said, “Let’s be clear about what just happened: only eleven days before a Presidential election, a federal judge ordered Virginia to reinstate over 1,500 individuals — who self-identified themselves as noncitizens — back onto the voter rolls. Almost all these individuals had previously presented immigration documents confirming their noncitizen status, a fact recently verified by federal authorities.”

Mr. Miyares said the Justice Department’s lawsuit against Virginia was an attempt to “weaponize the legal system against the enemies of so-called progress.”

“That is the definition of lawfare. To openly choose weaponization over good process and lawfare over integrity isn’t democracy: it’s bullying, pure and simple, and I always stand up to bullies,” he added.