By Faith Chatham - Feb. 7, 2019
David Whitley was appointed by Gov. Greg Abbott Dec. 18, 2018 as interim SOS. To become SOS he must be confirmed by the Senate of Texas. A 3/4th vote of the Senate is necessary to confirm and confirmation will require at least some Democrats to either vote yes or be absent.
Shortly after taking office, Mr. Whitley issued a press release and an Advisory. (See bottom of this article for text of advisory) stating that:
Through this evaluation, the Texas Secretary of State's office discovered that a total of approximately 95,000 individuals identified by DPS as non-U.S. citizens have a matching voter registration record in Texas, approximately 58,000 of whom have voted in one or more Texas elections. Voting in an election in which the person knows he or she is not eligible to vote is a second-degree felony in the State of Texas. Upon receipt of this information, the Texas Secretary of State's office immediately provided the data in its possession to the Texas Attorney General's office, as the Secretary of State has no statutory enforcement authority to investigate or prosecute alleged illegal activity in connection with an election.
Voting in an election in which the person knows he or she is not eligible to vote is a second-degree felony in the State of Texas. Upon receipt of this information, the Texas Secretary of State's office immediately provided the data in its possession to the Texas Attorney General's office, as the Secretary of State has no statutory enforcement authority to investigate or prosecute alleged illegal activity in connection with an election..
Some county election administrators acted on the list immediately by sending out Notices of Examination of Citizenship to those from their county who were on the list sent to them by Secretary of State Whitley. Others examined the list and determined that many on the list were citizens. They contacted the SOS regarding the discrepancies they found while further examining the names on the list.
Some individuals, upon discovering their name was on the list or upon receiving Notices of Examination of Citizenship filed lawsuits claiming voter disenfranchisement naming Mr. Whitley, the State Elections Administrator, Governor Abbott, Attorney General Paxton and the Elections Administrator in their county as Defendants. Even the League of Women Voters of Texas filed Within a week several civil rights advocacy groups, and groups such as the NAACP, LULAC, Progress Texas, MALDEF and others.
The Texas Tribune reported Tuesday:
Almost two weeks after calling into question the citizenship status of almost 100,000 registered voters, Texas' new chief elections officer, David Whitley, defended his office's decision to hand over those voters' names to law enforcement even though he knew the list could contain mistakes.
At a Senate hearing to consider his confirmation as secretary of state, Whitley vacillated between telling lawmakers he referred the list of voters to the attorney general’s office because his office had no power to investigate them for illegal voting and describing the citizenship review efforts as an ongoing process based on a list that still needed to be reviewed by local officials. But he made clear is that his office knew from the start that the data could be faulty.
Twitter was brisk during the hearing. To read tweets on the topic visit: #PurgeWhitley #VoterSuppression #TexasLeg #TxLeg
In addition to the members of the Senate Nominations Committee, other members of the Legislature questioned Mr. Whitley.
Senator Royce West:
Sen. West: "What did you do in framing your press release to be sensitive to voter suppression?"INTERIM SOS: "We are always sensitive to voter suppression."Sen West: "How do you define voter suppression."INTERIM SOS: "It is not relevant how I define it."Sen. West: "It is relevant if I am going to vote to confirm you."
Senator Menedez questioned Mr. Whitley on why he did not ask the Counties to vet the list before issuing the Directive.
Sen. Menedez to SOS: "If you knew that the counties had naturalization data you didn't have, why didn't you ask the Counties to vet this data before you released your press release?"
When questioned about his understanding of how the list was compiled, Mr. Whitley's statements were less than satisfactory. He stated that a staffer, not he, met with the vendor who compiled the list. He explained:
"I am not qualified to answer about the technical way the list is derived."
Considering the importance of the integrity of the data captured and kept by the SOS office, his admission that he does not understand the technical way the data is captured, manipulated and compiled was surprising.
Many commented on Whitley's refusal to acknowledge the errors in the data even after he was notified by County Election Administrators that tens of thousands of the people on the list were US Citizens.
Senator Borris Miles questioned him about how good the DPS data could be if it lacked immigration status information. Without evidence that any of the 98,000 people on the list were not naturalized citizens when they registered to vote, turning them over to the Attorney General and sending out press releases and Directives stating that they could be prosecuted definitely appears to be "putting the cart before the horse." Others called it rash, irresponsible, reckless, detrimental to our voting process, frightening, scare tactics, voter intimidation and voter suppression.
The DPS data base indicates persons who show green cards when filing for drivers licenses. There is no requirement that a naturalized citizen notify DPS when they become citizens. Most already have their drivers license before they are naturalized. Applying for a drivers license using a green card does not mean that when you register to vote you have not become a citizen. The DPS does not possess data sufficient to determine whether or not a person is a citizen when they register to vote. Using their data base it is impossible to determine citizenship status. However, when a person registers to vote, they do have to present proof of citizenship. The DPS data base does, however, contain information about persons who are citizens when they apply for Drivers License. Citizens must present either a certified birth certificate or passport when applying for a Texas Drivers License. There is a code which DPS used to indicate persons who have presented proof of citizenship. Mr. Whitley was ignorant of that code. When the persons on the list noted with that code were, the list dropped to about half. That eliminated tens of thousand of registered voters whom Mr. Whitley had notified the media and County Election Administrators were probably not citizens. Mr. Whitley did not correct his public statement or revise his Directive on the website. At the beginning of the hearing he claimed that he had no knowledge that his original numbers were not accurate. By the end of the hearing he had indicated that he had told some of the county election administrators that some of the people on the list probably did not belong on the list and it was their responsibility to vet them. However, his directive was worded very differently. It spoke of felony offenses and described the list as the most credible list available and one that the administrators could act upon.
Voting in an election in which the person knows he or she is not eligible to vote is a second-degree felony in the State of Texas. Upon receipt of this information, the Texas Secretary of State's office immediately provided the data in its possession to the Texas Attorney General's office, as the Secretary of State has no statutory enforcement authority to investigate or prosecute alleged illegal activity in connection with an election.
His directive continued:
Going forward, the Texas Secretary of State's office will use information it obtains from DPS on a monthly basis to cross-reference with Texas' statewide voter registration database and match potential non-U.S. citizens who have registered to vote. Once a voter registration is identified as a match, the Texas Secretary of State's office will notify the county in which the person is registered so that the county voter registrar can take action.
It is easy to understand why a County Election Administrator would send out Notices of Examination of Citizenship after receiving a directive from the Chief Election Administrator of the State (SOS) with the wording on that directive. It is much more difficult to understand why an attorney with advanced training in economics who has served in governmental positions in the Governor's office as Deputy Chief of Staff would word such a directive and distribute a list which does not contain information about the naturalization date of citizenship of person who are registered to vote. To work a math problem you have to know what you are adding together or taking away. He only had part of the equation. He knew they were registered to vote. He could tell which ones voted. He could tell that some were not citizens when they got a drivers license. He needed to know their immigration status when they registered to vote. He did not have that information and none of the data bases utilized to compile the list has it. Also, some of the County Election Administrators do not have access to that information, despite his claim that they do.
Is this intentional or just gross incompetence? Different people have different opinions. I suspect that part of it was intentional on the part of some elected officials but they have also probably exercised gross incompetence in failing to recognize the vigilance of Texans about our precious right to vote. This is the 100th year anniversary of Women's Suffrage. This is also Black History Month. Those are memorials to the struggle of many people's struggle. There is never a right time for disenfranchising people. This is definitely the wrong time. Instead of the Governor's nominee for Secretary of State breezing through, Texans are up in arms. The best course of action Governor Abbott could take would be to urge (ask) Mr. Whitley to step down. He should spare the Senators the decision of having to decide between supporting a highly flawed nominee and offending the man who hold the pen with veto power over important legislation our state needs considered and enacted into law.
The witness list for today's Texas Senate Nominations Committee confirmation hearing on David Whitley for TX SOS shows that many more people cared enough to show up to oppose him than stepped forward to support him.
Witnesses on Confirmation of David Whitlely for Office of the Secretary of State of Texas
FOR:
1. Cahn, Adam (Cahnman's Musing), Austin, TX
2. Cosgray, Craig President, Marengo Films (Self; Highland Lakes Tea Party), Spicewood, TX
3. Foster, Cornelia (Self), Austin, TX
4. Johnson, Gail (Self; Election Judges and Clerks), Lytle, TX
5. Long, Matt Woodworker (Self), Fredericksburg, TX
6. Pressley, Laura Doctor (Self; Grassroots America), Tyler, TX
7. 1Whitley, David Secretary of State (Self), Austin, TX
AGAINST:
1. Aronwitz, Jacob Field Director (Self; Siegel for Congress), Austin, TX
2. Brodsky, Nina Bookkeeper/Artist (Self), Austin, TX
3. Burnam, Lon Retired (Public Citizen), Fort Worth, TX
4. Chamberlain, Steve (Self), Cedar Creek, TX
5. Garcia, Domingo National President of LULAC (LULAC), Dallas, TX
6. Garibay, Julieta (Self), Austin, TX
7. Garibay, Montsevrat Secretary/Treasurer (Texas AFL-CIO), Austin, TX
8.Gomez, Hilda (Self), Sealy, TX
9. Gutierrez, Anthony Executive Director (Common Cause Texas), Austin, TX
10. Olivera, Alejandra (Workers Defense), Austin, TX
11. Peek, Whitney (Self), Austin, TX
12. Perales, Nina VP of Litigation at MALDEF
(also providing written testimony) (MALDEF), San Antonio, TX
13. Robles, Samantha Advocacy Director (Progress Texas), Austin, TX
14. Siegel, Michael Attorney (Self), Austin, TX
15. Stout, David County Commissioner (Self), El Paso, TX
16. Keller, James Photographer/Property Management (Self), Wimberley, TX
17. Weatherby, Cynthia (Self; League of Women Voters of Texas), Austin, TX
Registering, but not testifying:
FOR:
1. Spraggins, Don (Self), Fredericksburg, TX
2, Spraggins, Doris (Self), Fredericksburg, TX
AGAINST:
1.. Burns, Briana (Self), Austin, TX
2. Buyse, Beth (Self), Austin, TX
3. Coorpror, Annie (Self), Austin, TX
4. Dennis, Cecilia (Self), Austin, TX
5. Johnson, Kent Retired (Self), Austin, TX
6. Yi, Alice (Self), Austin, TX
Providing written testimony:
AGAINST:
1. Jones, David Attorney (Clean Elections Texas), Dallas, TX
Total
24 against plus one written statement
9 for including the nominee. (Also Sen. Donna Campbell spoke for)
The Media Advisory issued by the SOS. (Data captured from SOS website at 5:30 p.m. 2/7/2019
Secretary Whitley Issues Advisory On Voter Registration List Maintenance Activity
"Integrity and efficiency of elections in Texas require accuracy of our state's voter rolls"
AUSTIN – Texas Secretary of State David Whitley today issued an
advisory to county voter registrars regarding voter registration list maintenance activities, which include identifying any non-U.S. citizens registered to vote in the State of Texas. For the past year, the Texas Secretary of State's office has worked closely with the Texas Department of Public Safety (DPS) to evaluate information regarding persons identified to not be citizens of the United States. This voter registration list maintenance activity is being conducted in accordance with federal and state law to ensure that only qualified voters -
who must first and foremost be U.S. citizens - are registered to vote in Texas elections.
Through this evaluation, the Texas Secretary of State's office discovered that a total of approximately
95,000 individuals identified by DPS as non-U.S. citizens have a matching voter registration record in Texas, approximately
58,000 of whom have voted in one or more Texas elections. Voting in an election in which the person knows he or she is not eligible to vote is a
second-degree felony in the State of Texas. Upon receipt of this information, the Texas Secretary of State's office immediately provided the data in its possession to the Texas Attorney General's office, as the Secretary of State has no statutory enforcement authority to investigate or prosecute alleged illegal activity in connection with an election.
Secretary Whitley issued the following statement:
"Integrity and efficiency of elections in Texas require accuracy of our state's voter rolls, and my office is committed to using all available tools under the law to maintain an accurate list of registered voters. Our agency has provided extensive training opportunities to county voter registrars so that they can properly perform list maintenance activities in accordance with federal and state law, which affords every registered voter the chance to submit proof of eligibility. I would like to thank the Department of Public Safety for providing us with this valuable information so that we can continue to guarantee the right to vote for all eligible Texas voters, who should not have their voices muted by those who abuse the system."
Going forward, the Texas Secretary of State's office will use information it obtains from DPS on a monthly basis to cross-reference with Texas' statewide voter registration database and match potential non-U.S. citizens who have registered to vote. Once a voter registration is identified as a match, the Texas Secretary of State's office will notify the county in which the person is registered so that the county voter registrar can take action.
The following combinations of matches between information in DPS-provided data and the statewide voter registration database are used to identify possible non-U.S. citizens registered to vote:
- Last Name, First Name, and Full Social Security Number;
- Last Name, First Name, and DPS-issued Driver License, Personal Identification Card, or Election Identification Certificate Number; or
- Last Name, First Name, Last Four Digits of Social Security Number, and Date of Birth
If a registered voter is identified as a non-U.S. citizen, he or she should receive a
Notice of Examination (PDF) from the county voter registrar indicating that his or her registration status is being examined on the grounds that he or she is not a U.S. citizen. The registered voter will then be required to provide proof of citizenship in order to stay registered, which may be done by submitting to the voter registrar a copy of one of the following documents:
- A certified copy of the voter's birth certificate
- United States passport; or
- Certificate of naturalization (Citizenship certificate)
If the person responds indicating he or she is not a U.S. citizen, or fails to respond to the Notice within 30 days, then the voter registration will be cancelled by the county voter registrar. County voter registrars have been provided with numerous training opportunities to ensure that list maintenance activities are conducted in accordance with state and federal law so as to not affect eligible voters.
Texas voters who wish to check their registration status can visit the Texas Secretary of State's
"Am I Registered?" tool online or
contact the voter registrar in their county of registration.
###
Faith Chatham's take on today's proceedings:
This is merely speculation. I think that the Media Directive was probably crafted with more input from the Governor and / or Attorney General than by the SOS's staff. I think that Mr. Whitley is accustomed to following through on directives which come to him from the Governor without examining them or evaluating them. Whitley inherited this DPS/SOS data base match and this is a "wedge issue" the Governor probably hopes (hoped) to utilize to throw meat to his base to try to shore up GOP support as previously red areas of the state are turning purple and blue. Mr. Whitley's predecessor had avoided acting sending lists to the Counties for months. Perhaps the data was not ready. Perhaps the former SOS found ways to avoid accusing tens of thousands of registered voters of not being citizens.
I don't know why the timing was at the first of the Interim SOS's term. I do know that
Mr. Whitley should understand that being sensitive to voter suppression is essential for the Chief Administrator of Elections. He understands that the SOS is the Officer charged by State and Federal Law as custodian of the State's voter data base. He should have researched the list even if the Governor or Attorney General put their stamp of approval on it to be sure that he was not unjustly accusing Texas citizens of voting illegally. The list of things he should have done is long.
This voter suppression debacle, and that is what it is, voter suppression -- occured at the beginning of the 100 year anniversary of women's suffrage. This hearing is during Black History Month. Senator Hall stated that no one is every turned away from the polls and not allowed to vote!
My assessment is that Mr. Whitley as SOS is a creation of Greg Abbott. The DPS/SOS match for purging alleged non-citizens from the voter rolls is a "baby" of the Governor. He has his press release ready and rushed to capitalize on the Directive issued by the SOS. The man in the Governor's seat is the mastermind and the person pulling the strings. Mr. Whitley is a former staffer who was offered a big promotion by the Governor. It appeared that the leap from being the Governor's Deputy Chief of Staff to Secretary of State was an astounding improvement in the circumstance of David Whitley. Instead he was thrown into a role he is not prepared to fill, into the blare of the spotlight before he has had opportunity to "learn on the job". As an attorney today he faced confirmation hearings which were televised and video taped about issues pertaining to his actions (and the Governor's and Attorney Generals roles) while all of them are named defendants in multiple on-going lawsuits. He was obviously carefully coached before this hearing. Admitting that he or his office had done anything wrong is not something that lawyers advise defendants to do.
He told the truth when asked if he had spoken with either the Governor or Attorney General before he issued the Directive and Press Release. "Yes. Because we wanted to get this right."
The most astounding thing I heard today was the Interim Secretary of State telling Senator Royce West that "I don't think what my definition of voter suppression is relevant to the job."
The Republican members (and witnesses) presented a united front. They had similar talking points. More than one Republican on the Committee or witness speaking in favor of confirmation attempted to deflect attention to voting process irregularities (such as waivers previous Secretaries of State have given about zeroing out the voting machines at some polling stations). Granted, we need to improve the process. There should be no waivers. We need a paper trail and we need newer, more reliable machines and software. However, I find it more than just slightly ironic that these members choose this hearing to champion those changes declaring their belief that David Wilkins will be able to deliver on them. It has been decades since there has been a Democratic Governor in Texas. The Secretary of State is appointed by the Governor. Their strategy to get through this debacle is to deflect attention from the current SOS by focusing on shortcomings of previous appointees by Republican Governors! I feel like I'm at the beer garden laughing with Molly Ivins on this one.
