SAN ANTONIO, Texas ― Lawyers for the state of Texas defended a Republican-led effort to question the voting rights of tens of thousands of naturalized citizens at a hearing Tuesday, casting blame for flaws in the process on local officials.
Tuesday’s hearing in a U.S. District Court in San Antonio marked the first courtroom challenge to the Texas crackdown on suspected noncitizen voting in the country’s most populous red state. The class action lawsuit asks Judge Fred Biery to issue an injunction halting the voter probe.
Texas Secretary of State David Whitley (R) announced on Jan. 25 that his office had identified some 95,000 noncitizen voters, including 58,000 who had cast a ballot at some point in the last two decades. State officials had compiled a list of suspected ineligible voters by checking voting registrations against records kept by the Department of Public Safety, which issues driver’s licenses and state identification cards.
The list, however, appears to consist almost entirely of immigrants who were not U.S. citizens when they last requested or renewed a driver’s license or state ID but who later naturalized. Applicants have to declare their citizenship status when requesting those documents, but the department doesn’t ask people to notify it if their status changes.
Claims by Texas Attorney General Ken Paxton and others that the list was evidence of voter fraud have largely fallen apart over the last three weeks.
On Jan. 25, Whitley’s office distributed the list, with an advisory from Texas Director of Elections Keith Ingram to send notices to the suspected ineligible voters to prove their citizenship within 30 days or get scrubbed from the rolls.
Lawyers representing the League of United Latin American Citizens, one of the country’s oldest Hispanic civic groups, filed the class action asking the court to stop the probe, saying it violates the Voting Rights Act because it discriminates against naturalized citizens and amounts to voter intimidation.
The judge seemed skeptical at times of the Texas lawyers’ justification for the probe. “You say they didn’t target naturalized citizens,” Biery said at one point. “So there’s a different standard for native-born and naturalized [citizens]?”
Todd Disher, one of a handful of lawyers for the state, struggled to respond. Texas doesn’t have a surefire way of identifying noncitizen voters by checking state voter registration records against federal citizenship ones, he said. The names identified by the secretary of state, he said, “are potential matches, they are weak matches.”
It was up to local authorities to investigate further, state attorneys said. But three county elections officials testified that they interpreted Ingram’s advisory as an order to send the notices.
One of those local officials, Webb County interim Elections Administrator José Salvador Tellez, declined to send letters questioning the legitimacy of voter registrations until he had more information.
“We knew there were errors,” he said. “I instructed my staff that we were going to wait to see what other counties do before we send letters of examination.”
Disher walked Tellez through the communications from the Texas Secretary of State’s Office, disputing the idea that local officials had to send notices of pending revocation of voter registration to the people on the list. Instead, local officials should have viewed it as a “starting point” for further investigation, Disher said.
“They did not say you must send out notices of examination,” he said.
Bob Reeves, the tax assessor for Kerr County, got a list of 68 names. Interpreting the advisory as an order, he had his staff send notices to all the people on the list. About one-third of them proved they were citizens.
Two of the letters were returned because the recipients had moved. The Secretary of State’s Office later informed Kerr County that 14 of the names were incorrectly flagged as noncitizens, so county officials sent a second letter telling them to ignore the first one. The rest are pending.
“Unfortunately, Mr. Reeves, I think that means your staff has acted contrary to state law,” government lawyer Chris Hilton said.
It was unclear what state law Reeves broke. Hilton walked Reeves through the state’s justification that the advisory didn’t require Reeves to send notices to people warning that the county might revoke their voter registration.
But when Hilton asked Reeves if he would send the notices now, he responded, “I don’t know.”
Hilton pressed the same argument with Blanco County’s tax assessor, Kirsten Spies, whose office sent notices to the seven people on its list shortly after receiving it.
“This email is telling you, you may investigate, and you may not, and it’s up to you,” Hilton said.
When he asked if she had to send those letters, Spies said, “I’m not sure.”
Ingram’s advisory announcing the probe appears to contradict the state’s argument that county officials weren’t obligated to act on the information.
“The point of this is to emphasize that our goal was to produce actionable information for voter registrars while producing the least possible impact on eligible voters,” the advisory reads, “meaning we believe the data we are providing can be acted on in nearly all circumstances.”
Julie Hilberg, the lead plaintiff in the class action, teared up on the witness stand as she recalled casting her first ballot in the 2016 primary elections. English by birth, Hilberg married a U.S. Navy veteran and settled in Atascosa County, where she serves as the Democratic Party chair.
After finding she was on the list, she told local officials it was an error. But she has yet to receive confirmation that her voting status is secure.
“I knew that I hadn’t done anything wrong,” she said. “But it felt like I was being criminalized.”