Federal judge directs more counties to halt voter citizenship review efforts as lawsuits proceed

SAN ANTONIO — As part of an ongoing flurry of litigation in federal court here over the state’s bungled citizenship review of its voter rolls, a federal judge on Monday told a handful of Texas counties they may not — for now — purge registered voters or send them letters demanding proof of citizenship.

Eight counties named in one of three pending lawsuits over the review effort agreed last week that they will not cancel any voter registrations as lawyers from a host of civil rights groups tangle with the state in court. U.S. District Judge Fred Biery said from the bench Monday that the other counties named in a separate lawsuit should consider themselves restrained in the same way as litigation proceeds.

That doesn’t apply to the other 200-plus counties in the state, but “we expect all the counties are watching these proceedings,” said Nina Perales, vice president of litigation for the Mexican American Legal Defense and Educational Fund, one of the groups suing Texas and several counties.

A month ago Monday, the Texas secretary of state’s office announced that it had flagged for citizenship review nearly 100,000 voters who had, at some point over the past several years, indicated to the Department of Public Safety that they weren't citizens while they were obtaining a driver's license or ID card. Counties were tasked with investigating their local lists, and some quickly sent out letters demanding proof of citizenship. But state leaders soon acknowledged that the list included thousands of naturalized citizens who should never have been flagged. The review effort immediately drew national attention — and three legal challenges.

Still to come from the judge’s chambers is a decision on civil rights groups’ broader requests to block the state from taking any further action related to the list as the lawsuits proceed. And the judge seemed at least somewhat amenable to that argument during a day of testimony that revealed fresh troubles with the state’s initial rollout of what it has come to characterize as “routine list maintenance activity.” Critics label it as an attempted widespread voter purge.

State officials conceded in federal court here Monday that a quarter of the nearly 100,000 voters flagged for citizenship review are naturalized citizens whose voter registration should never have been questioned in the first place.

And the list is only expected to get smaller, Keith Ingram, elections director for the Texas secretary of state’s office, acknowledged during cross-examination Monday.

The initial number shrank to about 74,000, Ingram explained, after “additional refinement” of data sourced from DPS, where Texans can register to vote while applying for or renewing their driver’s licenses.

About half of the 25,000 flagged erroneously were what Ingram called “code 64s” — a bureaucratic tag indicating that the voters registered at DPS while applying for or renewing their driver’s licenses. Since Texans have to present documentation, either as a citizen or as a legal permanent resident, to receive an identification card from the state, voters who registered at DPS would have demonstrated citizenship status.

The other half of the 25,000 “refined” off the flagged list had demonstrated citizenship to DPS but not registered to vote at the same time, Ingram said.

Before the original list was rolled out at the end of January, the state wasn’t aware it could utilize DPS data in order to narrow its target list, elections officials said Monday.

“I wish all of this could’ve been done back as the original effort,” Biery said. “Would you agree that all of this refinement would not have been done but for the sunshine light of the press and litigation?”

“The thing is that it’s the category of Donald Rumsfeld, the ‘unknown unknown’ — the things you don’t know you don’t know,” Ingram responded. “We didn’t know until the counties reported to us.”

Betsy Schonhoff, who resigned as the secretary of state’s voter registration manager amid the debacle, said in court Monday that she learned that such a refinement would be possible using DPS data only the week after the original lists had been sent to counties — after the news of it had been blasted out to media across the state, even earning a prominent spot in the president’s Twitter feed.

“Williamson County contacted me and said there were electronic applications they had received from DPS who were individuals from the list, which set off a flag for me to go check on that,” Schonhoff said. “Based on a meeting I had had with DPS [before the list was sent to counties], it was my understanding that that was not technically possible.”

Meanwhile, a much smaller fraction of the tens of thousands of flagged voters — just over 80 people — have voluntarily taken themselves off the voter rolls; 45 of them identified as noncitizens in doing so.

Of those 45, Ingram said, 10 had voting histories and seven had voted in more than one election. The Texas Attorney General’s Office — which has given contradictory indications over the last few weeks as to whether it has begun to criminally investigate voters on the original list — did not return a request for comment on whether it has instigated a criminal investigation into those individuals.

Going forward, Ingram said, the state will use new data retrieved from DPS. In the last month, he said, officials tallied 22,000 visits to DPS by individuals who demonstrated lawful presence in the country but not citizenship. Of those, Ingram claimed, 1,000 showed matches on the voter rolls. But given the pending litigation, those names have not been referred either to the Texas Attorney General’s Office or to county officials.

“It has to be done properly as opposed to heavy-handed — which it appears that some of the original rollout was not done in a laser-like way,” Biery said. “More like a sledgehammer.”

Also at issue Monday was where to place any blame for notices that went out to flagged voters. Those notices started a 30-day clock that could result in nonresponsive voters being purged from the rolls. Pam Ohlendorf, a Caldwell County elections administrator, testified over the objections of the attorney general’s office that she understood the secretary of state’s original advisory as a directive to send out notices of examination.

Attorneys for the state, which instigated the process, maintain that the Jan. 25 advisory was merely a call for the counties to scrutinize certain voters to determine whether investigation was warranted — and that any decisions to send out notices were made exclusively by the counties.

“If that’s the case, then why even send us a list?” Ohlendorf asked. “If we’re not to work it, they shouldn’t send us a list.”

The judge seemed sympathetic to that argument, pointing out to the state’s lawyers that the notices seemed, at the very least, to have caused confusion among county officials and likely among the registered voters who received them.

Biery asked Ohlendorf if she had ever read an essay titled “All I Really Need to Know I Learned in Kindergarten.” She responded that she had not.

“Read it sometime,” the judge suggested. “It talks about cleaning up your own messes.”