On January 29, 2019, the Texas League of United Latin American Citizens (Texas LULAC) and National League of United Latin American Citizens filed this lawsuit in United States District Court for the Western District of Texas. The plaintiffs sued the Texas Secretary of State and the Attorney General of Texas, under section 11(b) of the Voting Rights Act. The plaintiffs, represented by their General Counsel, Campaign Legal Counsel and private counsel, sought declaratory and injunctive relief. They claimed that defendants had created Texas's Election Advisory No. 2019-02 and an accompanying "Possible Non U.S. Citizens" list (the Advisory) that intimidated legitimate voters from participating in the May 2019 elections, particularly targeting citizens of the Latino community across the state of Texas.

Specifically, the Advisory contained data of supposed “matches” of non-U.S. citizens and registered voters to local election officials. These matches were found by comparing non-citizens identified in Department of Public Safety citizenship data and registered voters, to local election officials. The plaintiffs claimed that the citizenship data was over a quarter century old, and many non-citizens had since naturalized. The Texas Secretary of State issued instructions to local registrars and election administrators to not release data to the public. The plaintiffs alleged that these actions and the deliberately public roll-out of this program “cast a pall of suspicion” over the validity of local registration rolls and contributed to voter intimidation in Texas, especially against immigrants and those in the Latino community. Plaintiffs noted that members of the Latino community had already reacted to the publicity campaign by withdrawing their voter registrations.

The case was randomly assigned to Judge Fred Biery on the date the complaint was filed.

Shortly after, the plaintiffs filed a motion for a preliminary injunction on February 4, 2019 and the defendants filed a motion to dismiss on February 11, 2019. The defendants argued that the alleged injuries were not traceable or redressable by them because the counties, rather than the defendants, were responsible for cancelling any voter’s registration for noncitizenship. In addition, the defendants argued that the allegations against the Attorney General were disconnected from the relief sought and limited to a press release that stated his authority over election-related crimes.

On February 22, 2019, two other cases, Garibay v. Whitley and MOVE Texas Civic Fund v. Whitley (5:19-cv-00159 and 5:19-cv-00171, respectively), were consolidated to this docket because of their similarity in questions of fact and law.

Following a hearing, Judge Biery denied the motion to dismiss on February 27, 2019. At the same time, he denied the plaintiffs’ request for relief regarding the Attorney General’s press release. Though he found the press release “arguably vituperative in tone,” it nevertheless stated the Attorney’s General authority. In addition, Judge Biery temporarily put the Advisory program on hold. He ordered local officials not to remove any person from the current voter registration without authorization from the court. The order also signaled his skepticism about the voter registration review process, nothing that the flawed process meant “perfectly legal naturalized Americans were burdened with what the Court finds to be ham-handed and threatening correspondence from the state which did not politely ask for information but rather exemplifies the power of government to strike fear and anxiety and to intimidate the least powerful among us.”

The next day the plaintiffs filed their second amended complaint, in the form of a class-action complaint on behalf of all U.S. citizens and registered voters of Texas who had been singled out for investigation and removal from the voter rolls by the Texas Secretary of State because they were born outside the United States. The complaint added the voter registrars for counties across Texas. In addition, the complaint added various individual plaintiffs who had been impacted by the Advisory personally, as well as the Southwest Voter Registration Project, Mi Familia Vota Educational Fund, La Union del Pueblo Entero and Unidos US. In this complaint, the plaintiffs alleged that the Advisory violated the First and Fourteenth Amendments and the federal Voting Rights Act. They sought class action certification, declaratory and injunctive relief, and damages.

On March 6, 2019, the plaintiffs filed their third amended class action complaint, alleging similar violations to the First and Fourteenth Amendments and the federal Voting Rights Act, and adding several more plaintiffs who had been specifically injured by the Advisory, including the Organization of Chinese-Americans-Greater Houston.

On March 27, 2019, Judge Biery denied a motion to dismiss previously brought by the county voter registrars. Though the county defendants argued that they only acted on the direction of the Secretary of State, the court found that the registrars were those who would send the alleged correspondence leading to voter intimidation.

The two parties reached a settlement on April 25, 2019. The defendants agreed to rescind Election Advisory 2019-02 within five days of the Settlement order, and to advise county voter registrars and elections administrators to take no further action on any data files the Secretary of State sent them in connection with Election Advisory 2019-02. The defendants agreed to update their set of non-U.S. Citizen holders of driver’s licenses or personal identification cards, and to only flag individuals who had registered to vote and subsequently provided information suggesting they were non-citizens. Furthermore, the defendants agreed to distribute new training materials to county voter registrars and election administrators advising that voter registrars and election administrators should not immediately cancel any voter’s registration, providing guidance on lawful means to investigate voter eligibility, and noting that the registrar should send a notice of examination to the person suspected of not being eligible for voter registration. Under the agreement, all claims of breach were to be brought through a new lawsuit in state or federal court. The plaintiffs indicated in the settlement that they are not conceding the state’s effort comply with federal law, leaving the possibility to file a future complaint if the plaintiffs were concerned with future reviews. Finally, the defendants agreed to pay $450,000 in attorney's fees and costs.

On April 26, 2019, the plaintiffs and the defendants filed a join motion to dismiss because they reached a settlement agreement. As part of this settlement agreement, plaintiff agreed to dismiss all claims against the defendants in all of the consolidated cases in their entirety with prejudice. This motion was granted and the case dismissed by Judge Biery on April 29, 2019. As of October 2019, there was no further activity on this case. The settlement agreement remained in place.

Caitlin Kierum - 10/27/2019


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