Texas League of United Latin American Citizens et al v. Whitley et al
COMPLAINT (Filing fee $400.00 receipt number 500047794), filed by Texas League of United Latin American Citizens, National League of United Latin American Citizens. (Attachments: #1 Civil Cover Sheet, #2 Filing Fee Receipt)(dtg)
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
TEXAS LEAGUE OF UNITED LATIN
NATIONAL LEAGUE OF UNITED
LATIN AMERICAN CITIZENS
S Al 9 C A 0074
DAVID WHITLEY, in his official
capacity as Texas Secretary of State,
KEN PAXTON, in his official
capacity as Attorney General
Plaintiffs, by and through undersigned counsel, allege as follows:
Preamble: Nature of action
This is a lawsuit under Section 11(b) of the Voting Rights Act, challenging the corn-
bined effort of the Secretary of State of Texas and the Attorney General of Texas to intimidate
people who are currently legitimately registered to vote into dc-registering or just not voting (or
both) in the upcoming May 2019 election. These two Texas officials have carefully crafted and
orchestrated a program that combines an election advisory ostensibly directed at ensuring that all
those registered to vote in the May election are citizens eligible to vote with the use of data that
is suspect on its face and a blackout on public access to the data. Through this approach, they
control public access and public media information in such a way as to inform the voting cornmunity that they really are targeting, as suspect, participants in the State's election system who
should fear such participation. It is, in short, a plan carefully calibrated to intimidate legitimate
registered voters from continuing to participate in the election process and to enlist the broader
public into joining the two officials in concentrated pressure against such continued participa-
tion. Full-fledged United States citizens, legally participating in Texas's election system, particu-
larly those who are part of the Latino community across the State, are being illegally targeted for
voter intimidation. This lawsuit seeks to stop such intimidation. The pretextual facade of concern
about voter fraud provides no cover for the voter intimidation at work here.
Jurisdiction and venue
This Court has original jurisdiction pursuant to 28 U.S.C.
Plaintiffs seek declaratory and injunctive relief pursuant to 28 U.S.C.
§ § 1331
and 1343 (a)(3).
2201 and 2202, as well
as 52 U.S.C. § 10307 and 10308.
Venue is proper in this Court pursuant to 28 U.S.C.
124(d)(4) and 1391(b). De-
fendants have their official place of government business in Austin, Texas.
Plaintiff League of United Latin American CitizensNational (LULAC) is the oldest
and largest national Latino civil rights organization in the United States. It is a non-profit organization with a presence in most of the fifty states including Texas. LULAC was founded in Texas
with over 125,000 members nationwide and over 20,000 in Texas, on the principle of protecting
the rights of Latinos in civil rights including voting rights. LULAC participates in voter registra-
tion throughout the United States and throughout Texas
LULAC has been recognized and accepted as an organizational plaintiff protecting Latino
rights in every federal court in which it has participated, including the United States Supreme
Court and the Western District of Texas.
5. Plaintiff Texas League
of United Latin American Citizens (Texas LULAC) was found-
ed in Texas in 1929. It has over 20,000 members in Texas, and over 1,000 members in Bexar
County. Its principal purpose is to protect the civil rights of Latinos, including their voting rights.
Texas LULAC participates in voter registration throughout Texas, including all parts of the
Western District of Texas.
Texas LULAC has been recognized and accepted as an organizational plaintiff protecting
Latino rights in every federal court in which it has participated, including the United States Supreme Court and the Western District of Texas.
David Whitley is the Texas Secretary of State, sued here in his official capacity
only. He is designated as the State's chief elections officer. It is purportedly in that capac-
ity that he undertook the actions here complained of.
Ken Paxton is the Texas Attorney General, sued here in his official capacity only.
In his capacity as Attorney General, he undertook the actions here complained of.
May 4, 2019, is the next general election day for local Texas elections. The election cy-
cle is well underway. Candidate filing opened on January 16, 2019. In-person early voting begins
on April 22, 2019. The last day to register to vote for that election is April 4, 2019.
On Friday, January 25, 2019, the Texas Secretary of State issued what his office
termed "Election Advisory No. 20 19-02" to voter registrars and elections administrators in
the counties across the State. A copy of the memo is Attachment A to this complaint. It will
sometimes be referred to in this complaint as SOS Advisory 20 19-02.
10. The Secretary
of State had already turned the data discussed in the advisory to the
Attorney General, who tweeted the following shortly after noon on the same day as issuance
of the SOS advisory (emphases added):
VOTER FRAUD ALERT: The @TXsecofstate discovered approx 95,000 individuals identified by DPS as non-U.S. citizens have a matching voter registration record
in TX, approx 58,000 of whom have voted in TX elections. Any illegal vote deprives Americans of their voice.
Still on that same day, the Attorney General posted a four-paragraph press notice online at
https ://www.texasattorneygeneral. gov/news/releases/ag-paxton-texas-secretary-states-office-
discovers-nearly-95 000-people-identified-dps-non-us-citizens. It sprinkles the word "fraud"
prominently into the notice seven times, accompanying it with references to "illegal voting,"
"crimes against the democratic process," and "election crimes."
11. The Advisory outlines what it says was a program started in March 2018 between
SOS and the Texas Department of Public Safety (DPS) whereby the SOS would use DPS
drivers license and personal identification card data in connection with SOS work on
"maintenance" of the State's voter registration rolls. According to SOS (with emphasis added), it would extract from the DPS data and documentation a list of "individuals who provided valid documents indicating the person is not a citizen of the United States at the time the
person obtained" a driver license or personal ID card from DPS.
12. Nowhere in the advisory, the AG press release, or the AG tweet is there any descrip-
tion or identification of the time period covered by the DPS data it said it was using. Pubru
lished reports since the advisory became public indicate that the DPS data goes back 23
years, at least as far as 1996. The Advisory chose to use the term "DPS non-U.S. Citizen da-
ta" to refer to the data set.
The Advisory indicated that the SOS's plan was to take this mass of DPS data and
match it against "the TEAM system," which is Texas's computerized, centralized statewide
voter registration list. ("TEAM" stands for "Texas Election Administration Management.").
Then, said the advisory, the SOS plan was to take any "matches" between the DPS data and a
registered voter in any given Texas county, collect them by county, and send the information
to the local voter registrars and election administrators.
14. Neither the SOS nor the AG made any
of the underlying data publicly available at
the time of their orchestrated press barrage on January 25th. This, despite the fact that the ap-
parent key to the process was using DPS data that goes back nearly a quarter-century and
"matching" it against
voter registration data. This meant that, using the data-blackout
approach in a highly suspect context, the SOS and the AG could publicly state whatever they
wished without fear of contradiction on any specifics, since all of the specifics were tightly
held by them and not made available to either the public generally or even to the local voter
registrars and election administrators. Among other things (and even setting aside the falsepositives that even the state officials must concede is ever present in these situations), this
"matching" process fails to take into account a major factor that throws reliance on the old
DPS data particularly suspect: the naturalization process, whereby those who came to the
United States as non-citizens may later attain citizenship. According to the Migration Policy
Institute, in Texas alone in fiscal year 2014, nearly 53,000 people became citizens through
the naturalization process. If each of those people had applied to DPS for a driver license or
personal ID card before 2014 (even going back to 1996), and registered to vote
zation (which would be expected in most instances), they would still show up in the SOS
"matching" even though they are fully legitimate registered voters. Over just the 2007-20 17
decade, 7.5 million people became naturalized citizens, and it is certain that people in Texas
are a relatively large percentage of that number. And recently, with the advent of a national
administration avowedly hostile to immigration of any sort, the number of those in America
seeking naturalization has skyrocketed, increasing by 87% over the number in the previous
Presidential administration. The SOS-AG "matching" gambit simply ignores this huge factor
that on its surface shows how misguided and inaccurate the touted program is.
15. The advisory said that the matching process had not been completed at the time
issuance and of the the AG's press release and tweet. This, though, served as no impediment
to the AG, who nonetheless included as part of his press release a headline that the SOS had
discovered "nearly 95,000 people" as non-U.S. citizens registered to vote in the State. He repeated this assertion in the release's opening paragraph, adding the statement that "roughly
58,000 of them" have voted in at least one Texas election. These numbers and assertions
were widely reported in the Texas press, as the SOS and AG certainly expected and planned.
16. Since Friday, January 25th, the SOS has completed its internal matching program for
at least some Texas counties, including in particular Bexar County. It forwarded the infor-
mation to the Bexar County Election Administrator on Monday, January 2 8th.
Even now, the data blackout continues. The SOS has issued written instructions
to the local registrars and election administrators that none of the data may be made
18. When combined with the assignment
of responsibilities for what to do with the data
and the "matching" performed by the SOS, the process is an openly cynical effort to put the
local registrars and election administrators in a difficult-to-impossible situation. The SOS ad-
visory acknowledges that, even its own hidden system for performing the "matches," provides only a "weak" match. And it acknowledges that the duty for what to do with the hidden
SOS methodology and data rests with the local officials upon whom it has been dumped, not
on the SOS. And it even acknowledges that the local registrars and election administrators
have it within their power and authority to take no action whatever on the SOS-provided
"matches" and "simply close the task as RESOLVED." But the SOS accompanies those necessarily protective assertions with the claim that "we believe the date we are providing can be
acted on in nearly all circumstances," a claim which is impossible for either the public or the
local officials to test at the front-end given the data blackout.
19. By its very design, the entire arrangement outlined above, and its carefully rehearsed
roll-out by two of the State's top officials, has led to their control of the public posturing and
messaging of the effort. It is designed to cast a pall of suspicion over the validity of local reg-
istration rolls. It is designed to pressure local officials, forced to operate in the dark as far as
data is concerned yet threatened with attacks for not acting according to the wishes of the
SOS and the AG, into setting in motion coercive efforts to force voters on the "match" list to
prove they are validly registered to votewhile the broad swath of voters are left alone and
undisturbed. The inevitable
quiredis to intimidate
effectand no doubt the intended effect, though
intent is not re-
voters in the state who are more likely to be swept up, or fear being
swept up, in an election-related "witch hunt."
20. Registered voters who are citizens and appropriately registered to, and eligible to,
vote in the upcoming election are part of the target of the scheme by the SOS and AG. Especially in the current atmosphere of broad and highly-publicized anti-immigrant and antiLatino publicity and policy efforts, the adverse impact of the SOS and AG's orchestrated effort falls particularly heavily on the Latino community. Members of that community who are
properly and legally registered are already reacting to the publicity campaign attending the
roll-out of Advisory No. 20 19-02 by contacting local voter registrars and election administrators and asking to have their names removed from the voting rolls. In short, the SOS and AG
have already successfully used Advisory No. 20 19-02 and all the publicity they ensured
would come with its issuance to intimidate voters in the upcoming May election into withdrawing from the election system by withdrawing their voter registrations.
21. LULAC and Texas LULAC are organizations whose very purpose is to step in as
voluntary associations in these situations to seek protection of the rights of the voters
cussed in ¶ 20, above. The very intimidation that threatens them as voters who would be registered for the May election threatens them insofar as they might come forward into federal
court as individuals trying to protect their rights from the onslaught of the SOS and AG. Further, the impact of the voter intimidation effort is and will be felt in concrete ways in local
counties across the entire State. The impact in Bexar County and the other large counties in
Texas, is and will be particularly acute and substantial. Bexar County has one of the largest
Latino voting communities in the State. It is a target of the SOS and AG effort at open intimidation.
22. Federal statutory law provides specific protection against the combined effort of the
SOS and AG. Specifically, Section 11(b) of the Voting Rights Act prohibits the SOS and
AG's combined action working through Advisory No. 20 19-02, the data blackout imposed in
conjunction with it, and the SOS and AG publicity campaign taking advantage of the advisory and data blackout to further their intimidation efforts. That statute provides:
No person, whether acting under color of law or otherwise, shall intimidate, threaten,
or coerce, or attempt to intimidate, threaten, or coerce any person for voting or attempting to vote, or intimidate, threaten, or coerce, or attempt to intimidate, threaten,
or coerce any person for urging or aiding any person to vote or attempt to vote, or intimidate, threaten, or coerce any person for exercising any powers or duties under
section 10302(a), 10305, 10306, or 10308(e) of this title or section 1973d or 1973g
of title 42.
23. Participating in elections, including by registering to vote, is a core First Amend-
ment value furthered by Section 11(b). The provision requires no showing of subjective in-
tent to intimidate, only an objective basis for finding such intimidation present. Subtle and
cynical intimidation is forbidden by Section 11(b), which in light of its remedial and protec-
tive purposes is to be given an expansive interpretation. Intimidating, threatening, or coercing
any person from registering to vote equates to intimidating, threatening, or coercing such person from voting at all. The SOS and AG's manipulative use of the advisory, the data blackout, and coercive use of local election officials as human shields against the charges legiti-
mately leveled at the two state officials themselves is a violation of Section 11(b). It should
be invalidated, and the officials should be enjoined from continuing with the manipulative
program and from engaging in any such program in the future.
24. Paragraphs 1-23 are incorporated for all purposes.
25. Defendants Whitley and Paxton have violated, and continue to violate, 52 U.S.C.
10307 in pursuing the program set in public motion by SOS Advisory No. 20 19-02.
Prayer for Relief
26. Based upon the foregoing matters, Plaintiffs respectfully request that this Court grant
them the following relief:
assume jurisdiction over this action;
declare the actions of the Texas Secretary of State and the Texas Attorney General that
are complained of herein to be in violation of 52 U.S.C. § 10307(b);
issue a preliminary and permanent injunction, barring the Texas Secretary of State and
the Texas Attorney General from further actions in connection with pursuit of the program outlined in SOS Advisory No. 20 19-02; and
grant Plaintiffs such other and further relief as may be necessary, appropriate, and equitable.
LUIS ROBERTO VE , JR.
LULAC National General Counsel
Law Offices of Luis Roberto Vera, Jr.
1325 Riverview Towers
San Antonio, TX 78205-2260
Counsel for LULAC Plaintiffs
P.O. Box 12060
Austin, Texas 78711-2060
Dial 7-1-1 For Relay Services
(800) 252-VOTE (8683)
Secretary of State
Voter Registrars/Elections Administrators
Keith Ingram, Director of Elections
January 25, 2019
Use of Non-U.S. Citizen Data obtained from the Department of Public Safety
Pursuant to Section 730.005, Transportation Code, personal information obtained by the
Department of Public Safety (DPS) in connection with a motor vehicle record shall be disclosed
and used for any matter of voter registration or the administration of elections by the secretary of
state. The secretary of state has been working with DPS to obtain and use information regarding
individuals who provided documentation to DPS showing that the person is not a citizen of the
United States during the process of obtaining or acquiring a Texas Driver License or Personal
Identification Card from DPS. The initial set of information provided by DPS is being compared
to the voter registration rolls, and we are providing information relating to matches out to counties
Background: Beginning in early March 2018, our office began working with DPS to review and
refine the data able to be provided by DPS for use in this list maintenance process. The goal was
to produce actionable information voter registrars could use to assist in their list maintenance
responsibilities. In keeping with general guidelines set out under Section 18.0681, Election Code,
our office sought to create the strongest matching criteria that produces the least possible impact
on eligible Texas voters while fulfilling the responsibility to manage the voter rolls. To that end,
our office and DPS spent time evaluating the data and refining the query to limit the information
being provided to us for use in this list maintenance exercise to individuals who provided valid
documents indicating the person is not a citizen of the United States at the time the person obtained
a Driver License or Personal Identification Card. It is important to note that we are not using
information self-reported by the person regarding their citizenship status; rather, we are using
documents provided by the person to show they are lawfully present in the United States. As part
of the processing for issuing a card, these documents would have been validated by DPS against
the Systematic Alien Verification for Entitlements (SAVE) Database, which is administered by
the U.S. Citizenship and Immigration Services, a component of the Department of Homeland
Security. Once a person's document is validated through SAVE and a card is issued, then the
individual's information will be provided to our office in the next data file to be supplied. Our
office has obtained the preliminary data file for all current (unexpired) Driver License and Personal
Identification cards that meet this criteria, and we will run that set of information tomorrow
evening. After that initial data set has been run, DPS will provide information to our office on a
monthly basis of individuals obtaining a Driver License of Personal Identification card since the
last data file has been provided. We will run those as they are received by our office.
There is likely to be a law enforcement interest in the data that we are providing to you. If you
receive any requests from the public for the information, please contact your local prosecutor and
the attorney general, who have jurisdiction over such matters.
Impact of Data being obtained: It should be noted that the additional source of data being
obtained from DPS does not change or modify the voter registrar's rights or responsibilities under
Section 16.033, Election Code. The voter registrar has the right to use any lawful means to
investigate whether a registered voter is currently eligible for registration in the county. This
section does not authorize an investigation of eligibility that is based solely on residence. If the
registrar has reason to believe that a voter is no longer eligible for registration, the registrar shall
deliver written notice to the voter indicating that the voter's registration status is being investigated
by the registrar. The notice shall be delivered by forwardable mail to the mailing address on the
voter's registration application and to any new address of the voter known to the registrar. If the
secretary of state has adopted or recommended a form for a written notice, the registrar must use
that form. The obtaining of information from DPS and providing matching data to the voter
registrar merely expands the resources available to the registrar for use in list maintenance. The
registrar, ultimately, is responsible for determining whether or not the information provides the
registrar with reason to believe the person is no longer eligible for registration. If the registrar
determines this standard has been met, the registrar should send a Notice of Examination for
Citizenship (Proof of Citizenship) Letter.
Matching Information: This DPS non-U.S. Citizen data is matched against the TEAM system,
and information will be provided to counties if/when a match is identified between the DPS data
and a registered voter in the county. Records are identified as Possible Non U.S. Citizens when
one of the following combinations matches between a voter record and the DPS data:
Last Name (including Former Last Name on the Voter Record), First Name, and Full
Social Security Number (S SN) (9 digits);
Last Name (including Former Last Name on the Voter Record), First Name, and Texas
Department of Public Safety (DPS)-Issued Driver License, Personal Identification Card,
or Election Identification Certificate Number; or
Last Name (including Former Last Name on the Voter Record), First Name, Last Four
Digits of the SSN, and Date of Birth.
These are some of the strongest possible matching criteria used in TEAM and are the current
matching criteria used when determining whether or not to transfer a voter to an Offline County
when the Offline County submits a new registration application. A match to a new voter
registration application submitted by an Offline County to an existing voter using the above listed
criteria will result in the transfer of the voter record. The point of this is to emphasize that our
goal was to produce actionable information for voter registrars while producing the least possible
impact on eligible voters, meaning we believe the data we are providing can be acted on in nearly
All records submitted through this process will need to be treated as WEAK matches, meaning
that the county may choose to investigate the voter, pursuant to Section 16.033, Election Code, or
take no action on the voter record if the voter registrar determines that there is no reason to believe
the voter is ineligible. The county may not cancel a voter based on the information provided
without first sending a Notice of Examination (Proof of Citizenship Letter) and following the
process outlined in the letter. In order to help counties make a determination regarding whether
or not to send a Notice of Examination or close the task without taking further action, information
provided by DPS will be provided to each county for further review and comparison against the
Workflow for Possible Non-U.S. Citizen Investigation: Again, counties are not permitted, under
current Texas law, to immediately cancel the voter as a result of any non-U.S. Citizen matching
information provided. This is applicable to notifications received from jury summons responses,
as well as the dataset discussed in this advisory: possible non-U.S. Citizen notifications coming
For matching notifications coming from Jury Summons response devices, the county must
send the voter a Proof of Citizenship Letter (Notice of Examination).
For the matching notifications originating from DPS data, the county user has the choice
1. Send a Proof of Citizenship Letter (Notice of Examination) to the voter; thereby starting
the 30-day countdown clock before cancellation, or
2. Take no action on the voter record and simply close the task as RESOLVED.
A voter may only be cancelled based on possible non-U.S. Citizen matching information if a Proof
of Citizenship Letter (Notice of Examination) was sent to the voter
1. The voter responded to the Notice in under 30 days indicating the voter is not in fact a U.S.
Citizen (you would cancel for not being a citizen Cancel Reason: Non U.S. Citizen);
2. The voter failed to respond to the Notice within 30 days and is being cancelled for failure
to respond to the notice (Cancel Reason: Failure to respond to Notice of Investigation); or
3. The notice was mailed and returned as undeliverable to the registrar with no forwarding
information available (Cancel Reason: Failure to respond to Notice of Investigation).
To aid in this process, new Dashboard options will be available within the Possible Non U.S.
Citizen Dashboard task and a new Event Type has been developed for Offline counties. We are
not able to leverage the current Non U.S. Citizen Notification task, which is currently created when
a match identifies a voter having responded to a jury summons that he/she is not a United States
citizen. We cannot use the current Dashboard line item task/event type because counties are
required (by current law) to investigate those records identified as a response to the jury summons
response device under the current process. Counties are not, however, required (by current law)
to investigate the new DPS data matches if they do not believe that a voter is ineligible to vote.
However, our office will provide the data obtained from DPS in order to allow counties all the
information necessary to make the determination regarding whether or not to investigate the voter.
Response needed from the voter: Once a Notice of Examination for Citizenship (Proof of
Citizenship) Letter has been issued to a voter, the voter is required to provide proof of citizenship
as outlined under Section 16.0332, Election Code. This includes:
A certified copy of the voter's birth certificate,
United States passport, or
Certificate of naturalization
A copy of one of these documents (including a copy of the passport) being returned to the registrar
is sufficient to meet the proof requirement. The registrar is required to retain a copy of the notice
mailed and any proof of citizenship received by the voter. If the voter comes in person and
provides proof, then the registrar should make a copy of the document provided and retain it, along
with a copy of the notice that was mailed, with the application file for the voter.
For more information, please contact the Elections Division at 1 -800-252-VOTE(8683).
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