Federal Court Halts Removal Of Voters In Suspect Texas Citizenship Probe

A federal judge blocked Texas election officials from removing anyone from the state’s voter rolls if they were being investigated as a noncitizen based on unreliable data gathered by the state’s top election official.

The order from U.S. District Judge Fred Biery not only blocks the officials from canceling voter registrations but also prevents officials from demanding people provide proof of citizenship to stay on the rolls. Counties can continue to investigate the citizenship of the voters but can’t communicate with them individually.

The order effectively pauses a controversial effort acting Secretary of State David Whitley launched last month to probe suspected noncitizens on the voter rolls. Whitley’s office matched voter records with records from the state’s Department of Public Safety in which someone had indicated they were a noncitizen. Whitley’s office publicly announced that 98,000 noncitizens were suspected of being on the voter rolls, 58,000 of whom had voted in an election over a 22-year period. His office sent the names of the suspected voters to the counties and urged them to investigate further, including asking people to prove their citizenship.

Civil rights groups quickly pointed out that Whitley’s methodology was flimsy because the matching program didn’t account for people who had become naturalized citizens, and thus eligible voters after they got their driver’s license. Indeed, Whitley’s office quietly conceded there were errors in the data and thousands of voters have been removed from the initial list his office compiled.

“The evidence has shown in a hearing before this Court that there is no widespread voter fraud. The challenge is how to ferret the infinitesimal needles out of the haystack of 15 million Texas voters,” Biery wrote in his ruling. “Notwithstanding good intentions, the road to a solution was inherently paved with flawed results, meaning perfectly legal naturalized Americans were burdened with what the Court finds to be ham-handed and threatening correspondence from the state which did not politely ask for information but rather exemplifies the power of government to strike fear and anxiety and to intimidate the least powerful among us.”

After Whitley’s announcement about noncitizen voters, Texas Attorney General Ken Paxton (R) sent out a press release and tweet suggesting the findings were evidence of voter fraud. President Donald Trump tweeted there was evidence of voter fraud in Texas days later and as recently as Friday suggested there was fraud in the state.

But at least 20,000 people appear to have erroneously been included on the list and officials expect that number to grow.

Civil rights groups sued Whitley, Paxton and other local election officials on behalf of a handful of naturalized citizens who they said were being illegally targeted by the state. They also sought to get a court order requiring Paxton to rescind his press release, but Biery dismissed that request Wednesday, saying it amounted to constitutionally permissible speech.

“Texas unnecessarily targeted tens of thousands of people who were properly registered citizens, intimidating naturalized citizens from exercising their rights,” said a statement from Danielle Lang, an attorney at the Campaign Legal Center, which represented some of the plaintiffs. “Let this be a message to the rest of the country that states will face consequences when they threaten their citizens’ right to vote.” 

Whitley defended the program during his confirmation hearing earlier in February but also acknowledged the program could have been rolled out better. Senate Democrats have since announced they have enough votes to block his nomination as secretary of state.

Biery ended his ruling on Wednesday by admonishing Whitley for creating a mess and quoted from All I Really Need to Know I Learned in Kindergarten.

“The Court further finds and concludes the Secretary of State, though perhaps unintentionally, created this mess,” Biery wrote. “Always put things back where we found them and clean up our own messes.”

“The Texas Secretary of State’s office appreciates Judge Biery’s acknowledgment that the list maintenance process was performed in good faith to carry out statutory list maintenance duties. At this time, we are preparing a communication to Texas counties,” Whitley spokesman Sam Taylor said in a statement. “Secretary Whitley met personally with representatives of the plaintiffs today, solicited their feedback, and made clear that every option is on the table.”

Paxton’s office did not immediately respond to a request for comment on the ruling.

This article has been updated with a comment from Whitley’s office.

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