Can Virginia keep purging registered voters off the rolls inside the 90 days before a federal election when the flag came from a DMV data match?

Plain-English summary

Virginia runs two voter list-maintenance programs that lean on DMV data to identify possible noncitizens. The first ("Documentation of Legal Presence Removals" under § 46.2-328.1(E)) flags people who, at the DMV counter, said they were citizens but presented a non-citizen identity document. The second ("Self-Attestation Removals" under § 24.2-410.1) flags people who checked "no" on the citizen question in the DMV online portal, even though that checkbox is known to catch eligible citizens by mistake.

Attorney General Jay Jones concluded that both programs are "systematic" within the meaning of the National Voter Registration Act, because each one starts with a mass computerized data match and ends with a form notice. The NVRA forbids any "systematic" removal program from completing within 90 days of a federal primary or general election (the "quiet period"). So during that window, ELECT and registrars cannot complete cancellations sourced from these two programs.

The Commonwealth is not required to stop removing actual noncitizens during the quiet period. It just has to switch from a mass-match-and-mail workflow to a true individualized inquiry: case-by-case investigation that goes beyond mailing a form notice. Removals based on that kind of particularized review remain lawful year-round.

What this means for you

If you are a registered voter in Virginia

The opinion holds that a registration flagged by either DMV-data program cannot be cancelled during the 90 days before a federal primary or general election based solely on the data match, because both programs are "systematic" under the NVRA. It notes that § 24.2-427 separately gives a voter 14 days, after a notice of intent to cancel, to submit a sworn statement confirming citizenship.

If you are a county general registrar

The opinion treats the full pipeline (DMV list to ELECT match to a § 24.2-427 form notice) as one "systematic" program, even though the notice goes to an individual voter, so a cancellation tracing to either DMV feed should not be completed during the 90-day quiet period. It holds that a removal may proceed during that window only where it rests on a "particularized investigation" that goes beyond the data match and the form notice.

If you work at ELECT

The opinion identifies ELECT's data-match-and-forward process as the "systematic" step subject to the quiet period, and holds that match-based cancellations from either DMV program should not be completed during the 90 days before a federal election. It states the Commonwealth is not barred from removing noncitizens during that window, but that doing so requires the individualized inquiry the NVRA permits rather than the mass-match workflow.

If you manage the DMV side of either program

The opinion notes that the Self-Attestation program's "Are you a citizen?" checkbox has flagged eligible citizens through inadvertent user error, and that the program as designed "does not include adequate safeguards for identifying and filtering out false positives." It holds that the NVRA quiet-period limit runs against the cancellation step, not against the DMV's compilation and transmission of the lists.

If you are an election-rights attorney or litigator

The opinion adopts the "systematic" test from Arcia v. Florida (11th Cir.) and the Ninth Circuit's Mi Familia Vota v. Fontes (mass computerized data-matching followed by form notices is "systematic," even when the notice is sent to an individual), and cites the Eastern District of Virginia's VACIR v. Beals on the same DMV programs. It holds that Virginia's § 24.2-427 procedure and the NVRA's § 20507(c)(2) quiet period can be reconciled by switching to individualized review during the 90-day window.

Common questions

Q: Why does the NVRA have a 90-day quiet period at all?
A: Congress was worried that mass database matches make mistakes, and that mistakes made close to an election cannot be corrected before voters show up at the polls. The quiet period gives time for any wrongly-flagged registration to be reinstated.

Q: Does this stop Virginia from removing actual noncitizens from the rolls?
A: No. Removals based on individualized investigation (a real human review of the specific person's file, not just a database match plus form notice) are permitted year-round. The opinion is explicit about this.

Q: My registration was cancelled under one of these programs before this opinion came out. Does this opinion automatically restore it?
A: The opinion does not order restoration of past cancellations and does not address that question. If you believe you are eligible and were wrongly cancelled, the practical next step is to contact your general registrar to re-register and, if needed, consult an attorney about whether you have a federal NVRA claim.

Q: What is "systematic" versus "individualized"?
A: The opinion follows Arcia v. Florida (11th Cir.) and Mi Familia Vota (9th Cir.): a program is "systematic" if it uses a mass computerized data-matching process to compare voter rolls with other databases, followed by mailing form notices. It becomes "individualized" only if a human conducts a particularized investigation of the specific voter, not just by sending a form notice.

Q: Does this opinion apply to all voter list maintenance, or just DMV data?
A: The opinion only addresses the two DMV-sourced programs (§ 46.2-328.1(E) and § 24.2-410.1). Other list maintenance procedures (death, felony conviction, NCOA address changes) have their own statutory frameworks and were not in front of the AG.

Q: What is the 14-day notice procedure under § 24.2-427?
A: Once a registrar gets a flag from ELECT, the registrar must send the voter a notice of intent to cancel and give them 14 days to submit a sworn statement confirming citizenship. If no response, the registrar must cancel. The opinion treats this 14-day form-notice step as part of the "systematic" program, not as an individualized inquiry.

Background and statutory framework

Virginia maintains its voter rolls through several channels. The DMV is one of the heaviest data feeders, both because it touches almost every adult resident and because the federal Help America Vote Act and state law require coordination between motor vehicle records and voter registration systems.

Two DMV programs target potential noncitizens specifically. Under § 46.2-328.1(E), DMV records and forwards monthly to ELECT the document numbers of license/ID applicants who declared they were citizens but presented a non-citizenship legal-presence document; DMV checks each person against the federal SAVE database first to filter out confirmed citizens. Under § 24.2-410.1, DMV creates a daily list of people who checked "no" to "Are you a citizen?" in the online portal; this list goes to ELECT without a SAVE filter.

ELECT runs both lists against the voter rolls and sends matches to general registrars under § 24.2-404(A)(4) and § 24.2-410.1. The registrar must mail a § 24.2-427 notice of intent to cancel, giving the voter 14 days to submit a sworn statement of citizenship. No response means the registration is cancelled.

The federal NVRA imposes two cross-cutting limits on this state machinery. Section 20507(a)(4) requires states to make a "reasonable effort" at list maintenance, and § 20507(c)(2) creates the 90-day quiet period that bars completion of any "systematic" removal program inside 90 days of a federal primary or general election. The Eleventh Circuit's Arcia v. Florida decision and the Ninth Circuit's 2025 Mi Familia Vota v. Fontes decision define "systematic" as mass data-matching plus form notices, and define "individualized" as a particularized investigation that goes beyond the form notice.

The opinion applies that two-track framework to Virginia's two DMV programs and concludes that both fall on the systematic side, so both are subject to the quiet period.

Citations and references

Statutes:

• Va. Code Ann. § 24.2-410.1 (Self-attestation noncitizen list)
• Va. Code Ann. § 46.2-328.1 (Documentation of legal presence)
• Va. Code Ann. § 24.2-427 (Cancellation notice procedure)
• Va. Code Ann. § 2.2-505 (AG advisory opinions)
• 52 U.S.C. § 20507 (NVRA list maintenance)

Cases:

• Arcia v. Sec'y of State of Florida, 772 F.3d 1335 (11th Cir. 2014) - defines "systematic" program for NVRA quiet period
• Mi Familia Vota v. Fontes, 129 F.4th 691 (9th Cir. 2025) - applies Arcia and holds that mailing form notices to individuals does not convert systematic program into individualized one
• Va. Coalition for Immigrant Rights v. Beals, 803 F. Supp. 3d 454 (E.D. Va. 2025). Eastern District of Virginia decision on the same DMV programs

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2026/26-014-Koski-Issued.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

COMMONWEALTH of VIRGINIA

Office of the Attorney General
Jay Jones — 202 North Ninth Street
Attorney General — Richmond, Virginia 23219
804-786-2071
Fax 804-786-1991
Virginia Relay Services: 800-828-1120

April 16, 2026

Steven Koski
Commissioner, Virginia Department of Elections
Washington Building, First Floor
1100 Bank Street
Richmond, VA 23219

Dear Commissioner Koski:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue(s) Presented

You have asked whether voter registrations of individuals flagged by the Department of Motor Vehicles ("DMV") pursuant to the programs described in Va. Code Ann. § 24.2-410.1 and Va. Code Ann. § 46.2-328.1(E) can be cancelled within 90 days of a federal election, consistent with the National Voter Registration Act ("NVRA"). 52 U.S.C. § 20501, et. seq.

Background

Voter List Maintenance in Virginia

In recognition of the importance of maintaining an accurate list of voter registrations in the Commonwealth, the General Assembly has established robust mechanisms for identifying and removing ineligible individuals from the rolls. These programs for conducting routine maintenance of the voter registration list (hereafter "voter list maintenance") typically involve Commonwealth agencies, other states, or private and federal operators of national databases sharing reliable information with the Department of Elections ("ELECT"). For instance, ELECT regularly receives reports from partner agencies regarding individuals who have recently died, who have been convicted of a felony, who have been adjudicated incapacitated, and who may not be citizens. This information is then utilized by election officials to identify and remove ineligible names from the voter registration list.

Routine voter list maintenance is an essential tool for protecting election integrity, fostering public confidence in the democratic process, and enabling election officials to accurately plan and allocate resources for upcoming elections. However, officials should use care when conducting these programs, since they carry the risk of erroneously cancelling eligible voters and impacting their ability to cast ballots. To that end, there are evidence-based practices that officials can adopt to simultaneously advance both voter access and election integrity. In addition, it is important to clarify that the mere presence of outdated or erroneous information on the voter registration roll is not evidence of widespread voter fraud. In fact, experts have consistently found that voter fraud, and specifically instances of non-citizen voting, are exceedingly rare in the United States.

List Maintenance Programs Based on Department of Motor Vehicles Data

Virginia law establishes two voter list maintenance programs involving information about potential non-citizens shared by the DMV with ELECT. Under the first program, DMV compiles a list of individuals who, in applying for a license or identification card with the DMV, declare they are citizens but present a document proving legal presence other than citizenship. The DMV attempts to verify each listed applicant's citizenship status through the Department of Homeland Security's Systematic Alien Verification for Entitlements ("SAVE") database. Each month, DMV sends the list to ELECT along with any information about a listed applicant's citizenship status from SAVE. ELECT filters out confirmed citizens, electronically matches the remaining individuals against the voter registration list, and forwards matches to the appropriate general registrar for cancellation. For clarity, in this opinion, this first program is called "Documentation of Legal Presence Removals."

For the second list maintenance program, DMV creates a list of "all persons who have indicated a noncitizen status" when applying for or renewing a license, or identification document. In practice, DMV compiles a list of any individual who checks "no" in response to the question "Are you a citizen?" in an online portal. There are reports that this method has resulted in flagging eligible citizens due to inadvertent user error. DMV furnishes this list of self-attested non-citizens to ELECT daily. ELECT then electronically matches the DMV list against the voter registration list, and transmits, for each match, information from the DMV list to the appropriate registrar. After independently confirming that the individual flagged by DMV matches a voter registration record, registrars must send a notice of intent to cancel, allowing the person 14 days to submit a sworn statement confirming citizenship. If the person does not respond and confirm their citizenship, the registrar must cancel their registration. For clarity, in this opinion, this second program is called "Self-Attestation Removals."

Applicable Law and Discussion

The National Voter Registration Act and the 90-Day Quiet Period

The NVRA is a federal law that sets forth certain voter registration requirements that apply to federal elections. The law includes provisions governing list maintenance procedures. While the NVRA requires states to "make a reasonable effort" to remove ineligible names from their registration lists, it also places important limits on how they conduct voter list maintenance programs. In particular, the NVRA creates a quiet period of 90 days before a federal primary or general election, during which States cannot complete "any program the purpose of which is to systematically remove the names of ineligible voters from the official list of eligible voters."

The 90-day quiet period applies to systematic programs that involve the removal of non-citizens from the voter registration list. The language of the statute states that the quiet period applies to "any program" for removing "ineligible voters." The NVRA "is premised on the assumption that citizenship is one of the requirements for eligibility to vote." Consequently, a systematic program designed to remove non-citizens from the registration rolls is clearly a "program the purpose of which is to systematically remove the names of ineligible voters" as that term is used in the NVRA.

A list maintenance program is "systematic" and subject to the 90-day quiet period if it uses "a mass computerized data-matching process to compare the voter rolls with other state and federal databases, followed by the mailing of notices." By contrast, a program is not systematic, and thus permissible during the 90-day quiet period, if it "require[s] communication with or particularized investigation into any specific individual." This individualized consideration requires more than sending a form notice to a potentially ineligible voter.

The different limits placed on systematic and individualized list maintenance programs during the 90-day quiet period reflect a careful balance struck by Congress in the NVRA. The stated purposes underlying the statute include "protect[ing] the integrity of the electoral process," "ensur[ing] that accurate and current voter registration rolls are maintained," and "establish[ing] procedures that will increase the number of eligible citizens who register to vote in elections for Federal office." The quiet period harmonizes these competing goals by requiring officials to act "cautiously with respect to systematic cancellation programs in the lead up to an election because such programs can cause inaccurate removal." Conversely, removals "based on individualized correspondence or rigorous individualized inquiry," are not time-limited precisely because they carry "a smaller chance for mistakes."

Virginia's DMV Data-Matching Programs and the 90-Day Quiet Period

Both the Documentation of Legal Presence Removals and the Self-Attestation Removals are systematic as currently practiced and subject to the limitations imposed during the 90-day quiet period.

Both Programs involve DMV compiling and transmitting a list of data to ELECT, ELECT using a "computerized data-matching" process to compare the DMV list against the voter registration roll, and general registrars sending form cancellation notices to confirmed matches. Neither program involves "individualized information or investigation." Furthermore, the current design of the Self-Attestation Removals does not include adequate safeguards for identifying and filtering out false positives, such as eligible citizens who erroneously checked the wrong box when using the DMV online system. Consequently, both programs are "necessarily systematic" and removals should not be undertaken under either program during the 90-day quiet period unless some modification is adopted that individualizes each determination.

Conclusion

Accordingly, it is my opinion that voter registrations of individuals flagged by the DMV pursuant to the programs described in Va. Code Ann. § 24.2-410.1, and Va. Code Ann. § 46.2-328.1 should not be cancelled within 90 days of a federal primary or general election. Those programs, as currently operated, involve systematic removal of ineligible voters from the list of eligible voters. Consequently, their use is limited by NVRA during the 90-day quiet period.

To ensure the Commonwealth can continue identifying and removing ineligible voters during the 90-day quiet period under Virginia law, current processes will need to be restructured. In particular, during the quiet period, officials must pivot away from relying solely on mass computerized data-matching and transition to a more "rigorous individualized inquiry" that minimizes the "chance for mistakes" — the individualized process permitted under the NVRA.

As a matter of law, the Commonwealth is not prohibited from removing non-citizens from the voter rolls during the quiet period. Instead, removals that result from particularized investigation are permissible year-round.

Sincerely,

Jay Jones
Attorney General