Motion for Preliminary Injunction Filed in U.S. District Court in Texas Voter Purge Case

Motion for Preliminary Injunction Filed in U.S. District Court in Texas Voter Purge Case

February 6, 2019


Defendants have taken—and have explicitly stated that they intend to continue taking—actions that threaten to strip naturalized citizens of their right to vote. “[S]ince the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized.” Reynolds v. Sims, 377 U.S. 533, 562 (1964).

On Friday, January 25, 2019, the Texas Secretary of State announced, via a press release and an official “Advisory” to counties, that he was sending local election officials a list of registered voters who had been flagged as “Possible Non U.S. Citizens” because, at some point, they purportedly provided a document indicating they were a noncitizen to the Department of Public Safety (“the Purge List”). Almost immediately, many local officials, including Defendant county voter registrars, began mailing notices to those flagged by this review, informing them that they must submit one of three specified documents demonstrating citizenship within 30 days or their voter registration would be automatically cancelled. This exercise was deeply flawed from its inception and has been demonstrably riddled with errors in its execution.

While the Secretary of State initially claimed to have identified approximately 95,000 noncitizens who had registered to vote and 58,000 who voted, those numbers have already tumbled significantly after only minimal scrutiny. The Secretary has now admitted that tens of thousands of citizens were falsely identified. In at least one county, the entire list of individuals initially flagged for review was rescinded due to a simple coding error. Yet even after correction of these errors, Defendant Whitley’s purge program remains fatally flawed at its core—the State’s methodology will inevitably result in the identification of naturalized citizens who are eligible to vote but who naturalized sometime after obtaining a driver license.

The 30-day clock is already running for any flagged eligible citizens in Defendant counties, at the end of which they will be purged from the voter rolls. A preliminary injunction to preserve the status quo and prevent citizens from being removed from the voting rolls is necessary. Defendants have engaged in conduct that treats naturalized persons as second-class citizens, directly infringing on their right to vote and violating their right to equal protection and equal treatment under the United States Constitution. The likelihood of severe harm is high. The first notices went out to registered voters on January 28, meaning properly registered voters could be removed from the voter rolls as soon as February 27. Defendant counties sent additional notices in subsequent days and more letters will go out this week, leading to additional voters potentially being purged into March and beyond. Texas is holding uniform general elections on May 4, 2019, for which the registration deadline is April 4, 2019. Eligible voters who are purged through this program will thus have very limited time—if any—to re-register before those elections. Naturalized citizens who are unable to timely provide documentary proof of citizenship—if they even receive those notices—will be purged from the voter rolls for no other reason than the fact they were at one point not a citizen. Meanwhile, Plaintiffs

MOVE and LWV will have to redirect considerable resources from their voter registration, education, and get-out-the-vote activities to help individuals who have been wrongfully purged to get back on the rolls. Plaintiff Saleh lives with the threat that at any moment, she could be deprived of her right to vote.

Plaintiffs ask that, to preserve the status quo and to prevent disenfranchisement of qualified voters, this Court prohibit any removals or demands for documentary proof of citizenship pursuant to the Purge List until such time as the Court may fully evaluate the lawfulness of Defendants’ voter purges based on the Advisory. Therefore, Plaintiffs seek a preliminary injunction to (1) order Defendant Secretary of State David Whitley to instruct all counties to abstain from taking any actions that would result in the removal of individuals on the basis of the Purge List; (2) order Defendants counties to take all steps to retract Notices of Examination of Citizenship Letters (“Notices”) that have already been sent out on the basis of the Purge List until further notice; and (3) enjoin Defendant counties from sending Notices to individuals on the basis of the Purge List or removing any registered voter rolls based on a failure to respond to such notices. 

Download the full Motion for Preliminary Injunction

Download the Proposed Order for Preliminary Injunction