Complaint Filed in U.S. District Court in Texas Voter Purge Case

Complaint Filed in U.S. District Court in Texas Voter Purge Case

February 6, 2019

1. Plaintiffs, by their undersigned counsel, bring this Action to prevent the Secretary of State along with Texas counties from following through on an unlawful purge of the voting rolls that, by design, will target and threaten the voting rights of eligible naturalized citizens and people of color.

2. The right to vote is a fundamental and foundational right, possessed equally by U.S. born and naturalized citizens. The Secretary of State’s purge treats those who have been naturalized as second-class citizens whose right to vote can be uniquely threatened and burdened solely because at some point in the past, these individuals were not U.S. citizens.

3. On January 25, 2019, David Whitley, the Texas Secretary of State, issued a press release (hereinafter, “the Press Release”) announcing that his office had identified approximately 95,000 individuals whom he claimed were “Possible Non U.S. Citizens” registered to vote (hereinafter, “the Purge List”). According to the Press Release, the Purge List had been created in order to facilitate and assist counties purging these individuals from their voter rolls.

4. In conjunction with this announcement, Keith Ingram, the Texas Director of Elections, sent the counties an Advisory titled Election Advisory No. 2019-02 (hereinafter, the “Advisory”). The Advisory told the counties that the Secretary’s office had attempted to provide them with “actionable information” and gave specific instructions on how counties could begin investigating the individuals on the Purge List.

5. The Purge List was created by identifying individuals who had presented documents to the Department of Public Safety (“DPS”) indicating that they were not citizens at the time of obtaining or renewing a Texas Driver License or personal identification card, and comparing those individuals’ information to voter registration information.

6. The Advisory noted that the matches generated by this comparison were “WEAK” matches under state law.

7. Critically, in creating the Purge List, no effort was undertaken to account for the fact that an individual could have become a naturalized citizen after submitting documentation to DPS but before registering to vote, despite the large number of Texans who naturalize every month and the amount of time, sometimes years, between DPS transactions.

8. Numerous civil rights groups immediately recognized the fundamental flaw in the creation of the Purge List. On January 28, 2019, these groups sent a letter to the Secretary of State urging him to rescind the Advisory, and sent letters to all 254 counties urging them not to act on it.

9. Despite this warning, the Secretary of State forged ahead with deployment of the Purge List. Defendant counties, without further investigation, began sending out notices to individuals on the list—including naturalized citizens—telling them that their eligibility to vote was being investigated and that they had 30 days to provide one of three specified forms of documents proving their citizenship or else they would be removed from the voter rolls.

10. Almost as soon as the Purge List was released, it was revealed that the data was flawed even beyond its fundamentally wrong-headed methodology. By Tuesday, January 29, 2019, the Secretary of State had retracted approximately 20,000 individuals from the Purge List because they were citizens who had been included due to an alleged “coding error.” Some of those citizens had already been sent Notices threatening them with removal from the rolls.

11. With mounting evidence that the Purge List was issued with no care for its inclusion of citizens, former Texas Secretary of State Carlos Cascos called for the Purge List to be rescinded.

12. Governor Greg Abbott, after earlier applauding Defendant Whitley for “uncovering and investigating this illegal voter registration,” called the Purge List a “work in progress,” but insisted that the fundamentally flawed exercise should continue.

13. The Purge List and its subsequent enactment through the Advisory is a thinly veiled attempt to decrease minority voter participation by targeting one particular group of minorities—naturalized citizens.

14. According to the U.S. Census Bureau, Texas is home to over 1.6 million naturalized citizens. Naturalized citizens in Texas come overwhelmingly from minority racial and ethnic groups, with the largest group of naturalized citizens—by far—coming from Mexico. Over 87% of Texas’s naturalized citizens are Black or of Latino or Asian origin according to Census data.

15. The Purge List issued by the Secretary of State uniquely targets naturalized citizens. A large number of naturalized citizens will have obtained a Texas driver’s license prior to becoming a U.S. Citizen, at which time they may have been required to provide documents to DPS showing that they were not a citizen but were lawfully residing in the United States. After naturalizing, those individuals would be eligible to register to vote, even though the out-of-date documentation in DPS’s records still incorrectly indicated they were non-citizens.

16. Defendant Whitley declined to include safeguards to ensure such naturalized citizens would not erroneously be included on his Purge List solely because they formerly were not U.S. citizens.

17. The Secretary of State’s determined insistence on following through with the purge, despite knowledge that it will disproportionately burden naturalized citizens, demonstrates his intention to suppress their fundamental right to vote.

18. Indeed, the consequences of not responding to a Notice issued by a county within the required 30 days are severe: removal from the rolls and, consequently, a deprivation of the right to vote. An official from Hidalgo County bluntly summarized what is at stake for those citizens who receive Notices: “Come into the office. Show your documents because you will be cancelled if you receive this letter of examination and you don’t respond.”

19. As set forth in the Advisory, Defendant Whitley does not intend for the purge to be a one-time event. Rather, using the flawed methodology that uniquely targets naturalized citizens, he intends to provide Purge Lists to counties on a monthly basis, thus regularly subjecting naturalized citizens to voter registration requirements to which native-born citizens are not subject, and exposing them to a continuing and ongoing threat of being purged from the voter rolls.

20. Because it is discriminatory and arbitrary in its design, purpose, and effect, the program outlined in the Advisory violates the U.S. Constitution and the Voting Rights Act of 1965.