Potential Effect of September 25th SCOTUS Emergency Order on Wisconsin’s WisVote Database and the Legal Removal of Non-US Citizens
The dispute dates back to late March, when President Donald Trump issued an executive order that (among other things) directed the Department of Homeland Security (DHS) and the Social Security Administration (SSA) to set up systems that would permit state and local governments to verify voters’ citizenship and immigration status. Those agencies then modified the Department of Homeland Security’s Systematic Alien Verification for Entitlements database, known as the SAVE system, to include the records of U.S.-born citizens, to give it access to Social Security numbers, and to allow users to conduct multiple searches simultaneously.
The League of Women Voters and the Electronic Privacy Information Center went to federal court in Washington, where they challenged the changes to the SAVE system. On June 22, U.S. District Judge Sparkle Sooknanan agreed with the challengers that the modified SAVE system violates federal privacy laws, the Social Security Act, and the federal laws governing administrative agencies, and she barred the government from using it.
Sooknanan wrote that “the federal government has knowingly trampled on the privacy rights of American citizens in a manner that threatens the sacred right to vote.” Moreover, she continued, “states have partnered with the federal government to access the database and are actively removing United States citizens from voter rolls based on inaccurate information.”
On Sept. 4, a divided panel of the U.S. Court of Appeals for the District of Columbia Circuit turned down the government’s request to pause Sooknanan’s order while its appeal moves forward, but the court fast-tracked the appeal, directing the litigants to quickly propose a briefing schedule. The litigants subsequently agreed to postpone any briefing in that court until the Supreme Court acts on the Trump administration’s emergency appeal.
U.S. Solicitor General D. John Sauer went to the Supreme Court on Sept. 8, asking the justices to freeze Sooknanan’s ruling while the litigation continues. Sooknanan’s decision, he wrote, was an “indefensible order that threatens the integrity of upcoming elections by vacating the federal government’s authority to internally use Social Security data when fulfilling its duty to respond to requests by States to verify the citizenship of individuals for voting and other purposes.” Moreover, he argued, Sooknanan did not have the power to enter her order because the challengers do not have a legal right to sue, known as standing. Among other things, he contended, the federal government is not the source of any injury that the challengers and their members might suffer, because the SAVE system “merely notifies the States whether the federal government can confirm citizenship.”
- In spite of the apparent dog-whispering from democrats and members of the press/media, the SCOTUS Emergency Order has nothing to do with the so-called ’90-day blackout’ provision for removing specific individuals from voter rolls through Section 8 of the National Voter Registration Act (NVRA).
- In spite of the apparent dog-whispering from democrats and members of the press/media, no provision of NVRA prevents the ‘removal’ of aliens from any voter database (https://www.heritage.org/sites/default/files/2024-10/LM362.pdf).
- In spite of the apparent dog-whispering from democrats and members of the press/media, the SCOTUS Emergency Order has nothing to do with any ‘privacy’ issues on behalf of any voters.
- In spite of the apparent dog-whispering from democrats and members of the press/media, the SCOTUS Emergency Order has nothing to do with any ‘disenfranchisement’ of any voters.
- SCOTUS, in part, refers to 8 USC 1373 (https://www.law.cornell.edu/uscode/text/8/1373) as part of the legal pathway forward for agencies to communicate amongst themselves and the Department of Immigration and Naturalization Service (INS).
- Some legal experts believe the non-obstante clause applies to the September 25, 2026, Emergency Order from SCOTUS as follows:
- Some legal experts believe the September 25, 2026, Emergency Order from SCOTUS also involves Void ab initio, which means the legal action had no legal effect from the beginning.
- DHS has all 50 voter databases.
- DHS is processing all 50 voter databases through the revamped SAVE System to identify any potential non-us citizens for immediate removal.
- DHS will be providing the potential names and addresses of all non-us citizens embedded in voter databases to all 50 State Election Directors.
- All 50 State Election Directors will be notified that if the names of non-us citizens are not removed from their voter database before the November 3, 2026, Mid-Term Elections, they may face prosecution if it is determined that any non-us citizens actually have a ballot processed for them.
- Title III of The Help America Vote Act (HAVA) requires the ‘removal of any ‘ineligible names’ from voter databases as follows:
- WisVote currently has a total of 8.450 million total names.
- WisVote currently has 3.615 million ‘active/eligible’ electors.
- WisVote currently has 4.835 million ‘inactive/ineligible’ names.
- Wisconsin has approximately 320,000 non-us citizens (https://usafacts.org/answers/how-many-immigrants-are-in-the-us/state/wisconsin/).
- Non-us citizens are counted for Wisconsin Congressional Apportionment for the US Census Bureau (https://www.census.gov/topics/public-sector/congressional-apportionment/about/faqs.html#accordion-964dc2a4db-item-f5263f00de).
- Wisconsin’s Department of Motor Vehicles has issued approximately 259,000 driver’s licenses and approximately 41,000 photo ID’s to non-us citizens between January 1, 2019 and November 30, 2023.
Friendly Republican Legislators will also be lobbied to contact Meagan Wolfe once the DHS information is presented to her for the immediate removal of non-us citizens in the WisVote database before the November 3, 2026, election.