Elections 2020Immigration & BorderJudicialFederal Appeals Court Rules Texas Secretary of State Can Withhold List of 11,000 Potential Noncitizen Voters

In August, a federal court ordered Texas to disclose the list of potential noncitizen voters. Last week, the Fifth Circuit Court of Appeals reversed this decision, claiming the plaintiffs did not have standing to sue.
October 3, 2022
At the end of 2021, Texas Secretary of State (SOS) John B. Scott released results from “Phase One” of a 2020 election audit covering Collin, Dallas, Tarrant, and Harris counties.

The audit identified over 11,000 potential noncitizens listed as registered voters in Texas. To compile this list, the SOS compared voter rolls with Department of Public Safety records. 

The SOS website reads, “The Texas Department of Public Safety (DPS) will provide the Secretary of State with data regarding individuals who presented evidence of non-United States citizenship at their last DPS visit in which they were issued a new or renewed driver license or personal identification card.”

To be flagged on this list, an individual must have registered to vote up to 30 calendar days prior to their last DPS visit.

This policy represents a shift from a previous program pursued by then-Secretary of State David Whitley which used the same DPS records but flagged individuals who had registered to vote after their last DPS visit.

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Whitley’s program listed almost 100,000 registered voters as potential noncitizens; over a quarter were listed in error, and many more were naturalized citizens.

Whitley received heavy criticism for the inaccuracies of this policy and resigned during a contentious confirmation process. 

The new list was not originally made public, but multiple advocacy groups sued the SOS to gain access. 

The plaintiffs, the Campaign Legal Center (CLC), American Civil Liberties Union of Texas (ACLU), Mexican American Legal Defense and Education Fund (MALDEF), and others, claimed in their original complaint that refusing to make the list public violated the National Voter Registration Act (NVRA).

They cited the “Public Disclosure” clause of the NVRA, which states, “Each State shall make available for public inspection all records concerning the implementation of programs  conducted for the purpose of ensuring the accuracy of official lists of eligible voters.”

“Public access to records pertaining to Texas’ new voter purge program is necessary for the public to monitor the state’s new voter purge program, and public monitoring is imperative to ensure that the program does not improperly cancel naturalized citizens’ voter registrations,” Alice Huling, Senior Legal Counsel at the Campaign Legal Center, wrote in a press release following the lawsuit.

In August, a federal judge determined that John Scott’s failure to make the noncitizen list public violated the NVRA, a decision that highlights inaccuracies in the new policy.

The judge wrote, “[I]n Tarrant County, at least 119 of the 675 suspected non-citizen voters provided documentation confirming citizenship. Likewise, 93 of the 385 suspected non-citizen voters in Travis County provided proof of citizenship, and 88 of the 302 suspected non-citizen voters in Collin County provided proof of citizenship.”

However, upon appeal, the Fifth Circuit Court ruled last week that the SOS does not have to provide a public list of potential noncitizen voters. 

Judge Edith Jones wrote in that case, “[W]e hold that the organizations constituting the plaintiffs lack standing to bring their claim under the National Voter Registration Act of 1993.”

According to the court, the plaintiffs could not provide evidence of an injury that requires the SOS to provide them with a list of potential noncitizens. 

“The lack of concrete harm here is reinforced because not a single Plaintiff is a Texas voter, much less a voter wrongfully identified as ineligible, and the Plaintiffs have not claimed organizational standing on behalf of any Texas voter members,” Jones concluded. 

However, she argued that the plaintiffs could file a new lawsuit that showcases “significant downstream consequences” or an actual sustained injury as a result of the public records being withheld. 

In a statement following the latest decision, CLC’s Senior Legal Counsel Molly Danahy said the CLC was disappointed with the court’s decision but will “continue to monitor potential voter purges in Texas because transparency is vital to a healthy democracy and all citizens deserve to have equal access to the ballot.”


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Hudson Callender

Hudson Callender is a reporter for The Texan and a lifelong resident of San Antonio, Texas. Hudson recently graduated cum laude from Trinity University with majors in Economics and Political Science, and loves to study ancient history. Hudson is also an avid mountaineer, backpacker, and paddler, often leading trips to remote wilderness areas. Outside of his love for nature, history, and Lone Star beer, Hudson spends his weekends arguing with his friends about football, and will always stick up for the Baylor Bears, Dallas Cowboys, and San Antonio Spurs.