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Texas’ renewed voter citizenship review is still flagging citizens as “possible non-U.S. citizens”

Posted at 8:09 PM, Dec 17, 2021
and last updated 2021-12-17 21:09:51-05

Texas’ last attempt to scour its voting rolls for noncitizens two years ago quickly devolved into a calamity.

The state flagged nearly 100,000 voters for citizenship checks and set them up for possible criminal investigation based on flawed data that didn’t account for immigrants who gained citizenship. After it became clear it was jeopardizing legitimate voter registrations, it was pulled into three federal lawsuits challenging its process. Former Secretary of State David Whitley lost his job amid the fallout. And the court battle ultimately forced the state to abandon the effort and rethink its approach to ensure naturalized citizens weren’t targeted.

This fall, the state began rolling out a new, scaled-down approach. But again, the county officials responsible for carrying it out are encountering what appear to be faults in the system.

Scores of citizens are still being marked for review — and possible removal from the rolls. Registrars in some of the state’s largest counties have found that a sizable number of voters labeled possible noncitizens actually filled out their voter registration cards at their naturalization ceremonies. In at least a few cases, the state flagged voters who were born in the U.S.

The secretary of state’s office says it is following the settlement agreement it entered in 2019 — an arrangement that limited its screening of voters to those who registered to vote and later indicated to the Texas Department of Public Safety that they are not citizens. Flagged voters can provide documentation of their citizenship in order to keep their registrations, officials have pointed out.

But the issues tied to the new effort are significant enough that they’ve renewed worries among the civil rights groups that forced the state to change its practices. They are questioning Texas’ compliance with the legal settlement that halted the last review. And for some attorneys, the persisting problems underscore their concerns that the state is needlessly putting the registrations of eligible voters at risk.

“We’re trying to get a grasp of the scale, but obviously there’s still a problem, which I think we always said would be the case,” said Joaquin Gonzalez, an attorney with the Texas Civil Rights Project, which was involved in the 2019 litigation. “It’s definitely something we were concerned would happen if they tried to restart this process.”

The review process tries to identify noncitizens using the Department of Public Safety’s massive driver’s license and ID database. It takes people who indicated they were not citizens when they obtained their IDs and then matches them to the voting rolls. But civil rights groups have been wary of that strategy because the database can contain inaccuracies and is prone to human error.

“It made sense to improve the process [in the settlement], but I think all parties were aware that there were still fundamental problems with the database and how they matched records,” Gonzalez said.

Texas’ voter citizenship review has persisted through the tenure of multiple secretaries of state and has been backed by state Republican leaders who have touted the broader review effort as a way to ensure the integrity of the voter rolls, though there is no evidence that large numbers of noncitizens are registered to vote.

The current iteration was formally initiated in early September before the appointment of the state’s new secretary of state, John Scott, who helped former President Donald Trump challenge the 2020 presidential election results in Pennsylvania.

That’s when the state sent counties 11,737 records of registered voters who were deemed “possible non-U.S. citizens.” It was a much smaller list than the one it produced in 2019, when it did not account for people who became naturalized citizens in between renewing driver’s licenses or ID cards they initially obtained as noncitizens.

But when Bexar County received its list of 641 flagged voters, county workers quickly determined that 109 of them — 17% of the total — had actually registered at naturalization ceremonies. The county is able to track the origin of those applications because of an internal labeling system it made up years ago when staff began attending the ceremonies, said Jacque Callanen, the county’s administrator.

Election officials in Travis County said they were similarly able to identify that applications for 60 voters on the county’s list of 408 flagged voters — roughly 15% of the total — had been filled out at naturalization ceremonies.

The American Civil Liberties Union of Texas, another group that sued the state in 2019, is still assessing the extent to which the state’s new attempt to review the rolls may be defective. But those figures alone should give everyone pause, ACLU staff attorney Thomas Buser-Clancy said after The Texas Tribune provided him those tallies.

“What we do know is that every time the secretary of state tries to do something like this it fails and that these efforts, which inevitably ensnare eligible voters, should not be happening,” Buser-Clancy said.

In an advisory announcing the revised process, the secretary of state’s office told counties that they should first attempt to “investigate” a voter’s eligibility. If they are unable to verify citizenship, the county must then send out “notices of examination” that start a 30-day clock for the voter to submit proof of citizenship to retain their registration. Voters who don’t respond with proof within 30 days are removed from the rolls — though they can be reinstated if they later prove their citizenship, including at a polling place.

Beyond the figures from Bexar and Travis counties, local election officials in other counties, including Cameron and Williamson, confirmed they’ve heard back from flagged voters who are naturalized citizens. After mailing 2,796 notices, officials in Harris County said 167 voters had provided them with documentation proving their citizenship. In Fort Bend, officials received proof of citizenship from at least 87 voters on their list of 515 “possible noncitizens.” Last week, Texas Monthly reported on two cases of citizens in Cameron County who were flagged as possible noncitizens.

“This process, agreed upon by all parties and stakeholders, will ensure that only qualified U.S. citizens remain on the voter rolls in Texas’ 254 counties,” said Sam Taylor, the secretary of state’s spokesperson. “We do not want any legitimate, qualified U.S. citizens to be canceled from the voter rolls, and this process protects U.S. citizens’ right to remain registered and to vote.”

In its advisory, the secretary of state suggested voter registrars could attempt to confirm a flagged voter’s eligibility by consulting with other county governmental entities that may have verified their citizenship or by trying to identify voter registration applications that originated from naturalization ceremonies.

“To the extent that counties were able to confirm their citizenship status and they were kept on the rolls — that’s exactly how the agreed-upon process is supposed to work,” Taylor said of the naturalized citizens identified by officials in Bexar and Travis counties.

However, county officials have previously told the state they often have no way to independently verify someone’s citizenship status to avoid sending out the 30-day notices. And most counties don’t appear to track applications from naturalization ceremonies.

So far, 2,327 voter registrations have been canceled as part of the review — 88% of them because the voter did not respond to the notice within 30 days. Just 278 were canceled after voter registrars verified they were not citizens. In some cases, county officials said, this occurs because of clerical errors. Nearly 17 million Texans are registered to vote.

The rest remain pending, largely because the state is now under a federally mandated moratorium on registration cancellations within 90 days of a federal election — in this case, the upcoming March primaries. (Various counties did not send out notices until the last few weeks, meaning any cancellations for failing to respond cannot be carried out until after the primary election.)

Voters flagged through the review process “have every opportunity to confirm their U.S. citizenship status and remain on the rolls, including at the polls when they go to vote,” Taylor said.

But lawyers involved in the 2019 litigation said the state cannot rely on that as a failsafe if the review process is systematically including eligible voters.

“Whatever the flaw is, it’s systematic with respect to naturalized citizens,” said Nina Perales, the vice president of litigation for the Mexican American Legal Defense and Educational Fund, which also sued the state in 2019.

In the shadow of the state’s botched 2019 effort, some county elections officials told the Tribune they approached the renewed effort with hesitation. But unlike two years ago when many of them held off on acting on the state’s lists, county voter registrars are now under financial threat if they don’t cull through them.

The Texas Legislature this year empowered the secretary of state’s office to withhold funds from them if they fail to “timely perform” voter roll maintenance duties, including those related to voters flagged as possible noncitizens. Keith Ingram, the director of the office’s elections division, reminded locals of this in a Nov. 15 email in which he noted “that a number of counties” had taken no action on the registrations his office put into question.

Ingram’s email appears to have prompted several counties to send out notices of examination, while others are still seeking additional data or information that could allow them to confirm that voters are citizens without sending the notices.

Gretchen Nagy, the director of voter registration in Travis County, sees it as “due diligence” owed to the voters, recalling the phone conversations she had with anguished naturalized citizens who were caught up in the state’s 2019 review.

“It was really difficult when people on the other end were really upset and emotionally distraught, [asking] ‘Is there something wrong? Did I do something wrong?’” Nagy said. “We’re basically trying to think outside the box — any agency, any department that we can reach out to — to see if we can do a confirmation of citizenship before these individuals ever have to hear from us.”

Up the road, election officials in Williamson County last week were waiting on guidance from the state in regard to nearly a fifth of the voters on their list of 138 “possible noncitizens” who appeared to have registered through the Department of Public Safety, which only registers individuals once their citizenship has been verified.

The state erroneously included 25,000 of those types of records in its 2019 review — a mistake it began quietly walking back within days of announcing the review effort.

The secretary of state’s office confirmed its current review includes “a limited number” of those matches, though it did not respond to a request for an exact number. Taylor, the spokesperson, said the state determined that some voters who initially registered through DPS were flagged because they “marked ‘yes’ on the citizenship field but later marked ‘no’ on the same field at a subsequent visit to DPS.” Those records could also include voters who were unable to provide citizenship documents to DPS.

“As a result, these records were flagged for citizenship review,” Taylor said.

The issues with the revised review appear to even be reaching voters who were born in the U.S.

Among them is Ivan Henson, a certified public accountant in Tarrant County, who was puzzled when he found in his mailbox a notice from the county dated Nov. 30 indicating his citizenship was in question. He was born in New Mexico.

“There is absolutely no reason I should be on this list,” Henson said.

Henson’s name appeared alongside more than 600 others on the list of possible noncitizens Tarrant County received from the state. County officials said they reviewed the list to see if they could find any clerical errors but ultimately sent out the notices following the state’s instructions.

Recalling news coverage of the state’s voter rolls debacle from two years ago, Henson made copies of his birth certificate and passport and quickly mailed them to the county, but he said he worries others who “don’t have time to mess with it” won’t be able to comply as easily.

“I am self-employed with my own copier and my own resources and my own time,” Henson said. “You know who this letter is going to disenfranchise.”