Texas Tried to Mess with Voting. It Failed.

 

Nick Wagner/Austin American-Statesman via AP

Texas Governor Greg Abbott speaks at the Governor's Mansion in Austin. 

Texas has been ground zero for voter suppression for years. From extreme gerrymandering and strict photo ID requirements to restrictive voter registration rules, state’s elected officials have rigged the election rules in ways they know will disempower black and brown voters. 

Their creativity in suppressing the vote knows few bounds—especially in the years since the Supreme Court invalidated key Voting Rights Act protections in the 2013 case Shelby County v. Holder. However, grassroots organizers, civil rights lawyers, and fed-up Texans are fighting back and the tide may now be turning. In recent months, the Lone Star State’s voter suppression machinery suffered several high-profile defeats. 

Texas’s attempt at a massive voter purge collapsed and gave the state a black eye on the national stage. In late January, acting Secretary of State David Whitley made the ludicrous claim that 95,000 non-citizens were on the state’s voter rolls and that 58,000 of them had voted between 1996 and 2018. Whitley issued a press release warning that Texas voters were having “their voices muted by those who abuse the system.” 

Texas Attorney General Ken Paxton joined the fray with a reckless tweet screaming “VOTER FRAUD ALERT.” President Trump took the story national, tweeting to his 60 million followers that the Texas numbers were “just the tip of the iceberg.” He took the opportunity to bolster his baseless assertion that he lost the popular vote in 2016 only because of fraud: “All over the country, especially in California, voter fraud is rampant. Must be stopped. Strong voter ID!”

Whitley’s claim was false, and he knew it. Apparently at the urging of Governor Greg Abbott, Whitley created his list of supposed noncitizen voters by first identifying people who had presented a non-citizen form of ID like a green card or visa to the Department of Public Safety when they applied for a license or state ID card at some point in the past, and then comparing that list to present-day voter registration rolls. But between 50,000 and 65,000 Texas residents become citizens each year. From 2002 to 2017, over 823,000 people are naturalized. In short, Whitley ignored an important fact: Many people who were not citizens when they applied for identification years ago later became citizens and, like other citizens, properly registered to vote.

Whitley’s office sent an official advisory to all 254 counties, providing local election officials his flawed list and instructing them on how to investigate and remove people from the rolls. The advisory encouraged county officials to send letters to the people on the list and purge anyone who didn’t respond with documentary proof of citizenship—a passport or naturalization certificate—within 30 days. Several counties followed his instructions.

Dēmos, the racial justice organization where I serve as the legal director, partnered with the Texas Civil Rights Project, the ACLU, and the Lawyers’ Committee for Civil Rights Under Law to take Texas to court over this egregious voter purge program. Representing a naturalized citizen named Nivien Saleh, the youth grassroots organization MOVE Texas, the Latino civic participation group Jolt Initiative, and the League of Women Voters of Texas, we alleged that Texas was engaging in discriminatory and unconstitutional voter suppression. The lawsuit demonstrated that Whitley’s plan targeted naturalized citizens; according to Census data 87 percent of those people are black, Latino, or Asian. The program used anti-immigrant hysteria and a lie about voter fraud to try to sap communities of color of their political power.

In late February, a federal court ordered Texas to stop the purge. Ruling in our case and two related cases, U.S. District Judge Fred Biery Jr. concluded that “perfectly legal naturalized Americans were burdened with what the Court finds to be ham-handed and threatening correspondence from the state,” which “exemplifies the power of government to strike fear and anxiety and to intimidate the least powerful among us.” In April, Texas agreed to shut down the discriminatory program, inform voters that their rights were no longer at risk, and cover a portion ($450,000) of the plaintiffs’ attorneys fees. 

Whitley lost his job as a result of this blatant voter suppression, All 12 Democrats in the 31-member Senate opposed formally moving him into the secretary of state post and denied him the two-thirds majority required for confirmation. He resigned immediately. In a surprising move, Governor Abbott rewarded Whitley for orchestrating the illegal voter purge program with a new $205,000 position that did not require legislative approval. Still, that defeat was a victory for grassroots organizations like MOVE Texas, the Texas Organizing Project, and the Workers Defense Project that continue to resist racist voter suppression practices. 

Voting rights advocates also defeated SB9, the Texas legislature’s latest attempt to undermine voter registration. That bill would have made it a felony to vote while unregistered or ineligible—even for individuals who mistakenly believe they are entitled to vote, and even if they cast only a provisional ballot. It would have converted certain election offenses from misdemeanors to felonies and created a vague new criminal offense, giving prosecutors even greater authority to bring aggressive criminal cases and to intimidate people who want to exercise their right to vote. The bill died when it was not scheduled for a floor debate in the final hours of the legislative session last month. 

As 2020 approaches, grassroots advocates will have to stay vigilant to protect the vote in Texas. Go-to tactics from the voter suppression playbook—like purges, the closure of polling places in communities of color, and aggressive prosecutions to scare people away from the polls—are real threats. After 2020, the state will undergo a new round of redistricting, giving officials another opportunity to fight demographic trends and lock incumbents into power through partisan and racial gerrymandering. However, such anti-democratic maneuvers can be overcome to ensure that all Texans can exercise their fundamental right to vote.

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