In late January, Texas Secretary of State David Whitley made the startling announcement that nearly 60,000 noncitizens over two decades may have voted in state elections. In response to this finding, Whitley said, counties must conduct “list maintenance activity,” a bureaucratic euphemism for canceling the registrations of fraud suspects.
Whitley’s statement galvanized lawmakers — nearly all Republicans — who claim that tens of thousands of noncitizens are committing large-scale voter fraud. Even President Trump weighed in.
But there was a catch: As U.S. District Judge Fred Biery said this week, the secretary of state’s numbers were wrong.
“It appears this is a solution looking for a problem,” Biery wrote in his ruling, saying the policy “exemplifies the power of government to strike fear and anxiety and to intimidate the least powerful among us.”
Within days of Whitley’s claim, it became clear that thousands on his list were U.S. citizens, eligible to vote. Whitley, saying he still supported a citizenship review, nonetheless apologized for the bungled way his office rolled it out.
The episode, and resulting court battle, made Texas the latest state to incorrectly assert that large numbers of noncitizens have cast ballots in U.S. elections. Lawmakers in North Carolina, Florida, Colorado, Indiana and Kansas have launched similar efforts in recent years.
Voting rights advocates in Texas cheered the ruling.
“This was a blatant attempt by state officials — who should be protecting the vote — to suppress the voice of Texas residents, and to target immigrants and people of color,” said Stuart Naifeh, a senior counsel with the think tank Demos, which was one of the organizations that sued the state to block the purge.
Thomas A. Saenz, head of the Mexican American Legal Defense and Educational Fund, which represents plaintiffs in the case, said the judge’s decision shows the state needs to “clean up its act.”
“Over-the-top pronouncements of widespread voter fraud without a shred of evidence only serve to broadly deter voter participation,” Saenz said. “Texans can and should expect far better of statewide officials, elected and appointed, whose job involves upholding, and not undermining, constitutional democracy.”
Attorney General Ken Paxton, however, argued that Biery’s ruling represented federal judicial overreach and said a state should be allowed to “maintain the integrity of its voter rolls.”
“There is no need for a federal court takeover of state activities,” Paxton said in a statement. “We are weighing our options to address this ruling and to continue making our case that ineligible voters should not vote and counties are free to continue to follow the law and keep their voter rolls clean.”
While the litigation continues, Biery ordered, counties may proceed with investigations into whether particular voters are citizens, but officials are not allowed to communicate directly with those people. Biery wrote that no county may remove a voter from registration “without prior approval of the Court with a conclusive showing that the person is ineligible to vote.”
The ongoing imbroglio may also have political consequences for Whitley, whom the Texas Senate has not yet confirmed. The chamber’s 12 Democrats have spoken out against his confirmation, and their opposition would stop Whitley from winning the two-thirds majority he needs.
In the last paragraph of Biery’s ruling, he squarely blamed Whitley, writing that the secretary of state “created this mess.” And he invoked Robert Fulghum’s book, “All I Really Need to Know I Learned in Kindergarten,” to tell him off: “Always put things back where we found them,” he wrote, “and clean up our own messes.”
Correction: An earlier version of this story portrayed the Mexican American Legal Defense and Educational Fund as plaintiffs in the case. They represent plaintiffs in the case.