On Jan. 25, Texas Attorney General Ken Paxton tweeted a “VOTER FRAUD ALERT” that quickly rocketed around the internet. Texas Secretary of State David Whitley, Paxton asserted, had discovered that approximately “95,000 individuals identified” as non-citizens are registered to vote in the state, “58,000 of whom have voted” in Texas elections. Whitley promptly urged counties to begin purging these 95,000 people from their voter rolls, demanding proof of citizenship within 30 days or canceling their registrations. Donald Trump joined the action, tweeting on Jan. 27 that Whitley’s numbers “are just the tip of iceberg.” Voter fraud, Trump wrote, “is rampant. Must be stopped. Strong voter ID!”
Within days of Paxton’s alarming tweet, Whitley had substantially backtracked. The secretary of state quietly informed county officials that a “significant number” of people on the list are actually citizens. Texas Director of Elections Keith Ingram acknowledged that these were “WEAK matches,” a “starting point” rather than a definitive list. In Harris County alone, about 18,000 names were removed from the initial list of alleged non-citizens. Some county officials, however, had already begun to notify residents on that first list that they had 30 days to prove their citizenship or lose their ability to vote.
The situation in Texas is a mess. But it is a dangerous mess. Paxton, a notorious foe of voting rights, is creating chaos and confusion in order to justify a radical purge of Texas’ voter rolls. As three new lawsuits filed by an array of civil rights groups argue, this purge isn’t just slapdash and sloppy—it’s discriminatory and illegal. Paxton and his allies are taking a page from Kris Kobach’s playbook of shock and awe: Toss out a wildly inflated claim of non-citizen voting, then use the ensuing panic to justify mass disenfranchisement. It is a dirty and duplicitous tactic. And thanks to America’s increasingly conservative judiciary, it might actually succeed.
Texas’ voter fraud pandemonium is actually a combination of Kobach’s two favorite moves: creating dubious lists of allegedly fraudulent voters to disenfranchise, and forcing people to prove citizenship in order to cast a ballot. Whitley’s purge list was created using a profoundly flawed method: His office identified individuals who presented documents indicating that they were not citizens when obtaining or renewing driver’s licenses, using Department of Public Safety records dating back to 1996. It then cross-referenced this list with voter rolls to come up with the numbers Paxton quoted—95,000 aliens registered to vote, 58,000 of whom have cast a ballot.
This methodology has a massive flaw: More than 50,000 Texas residents are naturalized each year, and when they become citizens, they are not obligated to inform the Department of Public Safety. It is therefore extremely likely that many if not all of the individuals whom Whitley flagged have become U.S. citizens and are perfectly lawful Texas voters. Driver’s licenses issued to non-citizens are valid for six years, and over the last six years, nearly 350,000 Texas adults have been naturalized. If even one-third of those adults registered to vote, they could easily account for the total number of “non-citizen” voter registrants on Whitley’s list.
Despite this obvious defect, Whitley has pushed ahead with the purge. Even after warning election officials that the list might be faulty, he has not retracted it, leaving counties to implement a purge known to target naturalized citizens. Even worse, he has pressed ahead with a plan to create a new list of alleged non-citizen voters every month, directing voter registrars to “take action” upon receiving each new batch of names. Election officials will send a single notice to these voters informing them that they are set to be removed from the rolls. If they do not provide a birth certificate, passport, or certificate of naturalization proving U.S. citizenship within 30 days, they will be purged.
Properly understood, then, Paxton and Whitley are not purging non-citizen voters; they are purging naturalized voters who have a fundamental right to participate in elections like any other citizen. Why? One possibility, noted in a lawsuit filed by the Mexican American Legal Defense and Education Fund on Saturday, is that 51.7 percent of naturalized U.S. citizens in Texas are Latino, while 28.8 percent are Asian. In the 2018 midterm election, Texas Latinos more than doubled their turnout compared to the 2014 midterms, casting 19.1 percent of all votes. MALDEF argues that the purge “will disproportionately and negatively affect Latinos,” since “the Latino population in Texas has a higher ratio of naturalized citizens to native-born citizens.”
The MALDEF lawsuit alleges that Texas’ actions violate the Equal Protection Clause, which generally prohibits discrimination on the basis of national origin, as well as the Voting Rights Act, which bars laws that disproportionately burden ethnic minorities’ ability to vote. Both MALDEF and the League of United Latin American Citizens, which filed a similar lawsuit, also allege that Paxton and Whitley are engaging in illegal voter intimidation in violation of the VRA. A third lawsuit brought by the American Civil Liberties Union, Dēmos, the Lawyers’ Committee for Civil Rights Under Law, and the Texas Civil Rights Project raises VRA and equal protection claims as well. It argues that Texas is placing an undue burden on naturalized citizens’ constitutional right to vote and infringing on their due process rights. And it asserts that Texas is engaging in intentional racial discrimination in violation of the 14th and 15th amendments.
All three lawsuits were brought on behalf of Texas voters targeted by Whitley’s list.
These are powerful arguments backed by substantial evidence of official malfeasance. But the Supreme Court, bolstered by Trump’s judicial nominees, have mastered the art of waving away proof of racism to uphold voter suppression laws. (Plus, the court already gutted the Voting Rights Act, whose now-defunct pre-clearance provision could’ve halted a voter purge like this one.) Just last June, the Supreme Court’s conservative majority ignored the obvious discrimination behind Texas’ racial gerrymander, writing that courts must “presume” the “good faith” of legislatures. Paxton and Whitley’s attack on minority voters is about as blatant as racist disenfranchisement can get in 2019. But there’s a depressingly good chance that our Trump-packed courts will pretend to see no evil.