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Election Advisory No. 2019-03

To:	Voter Registrars/Elections Administrators
From:	Keith Ingram, Director of Elections
Date:	March 4, 2019
RE:	Court orders in pending litigation involving non-citizen list maintenance process

We are writing to advise you of developments on the recently initiated non-citizen list maintenance process. As you know, lawsuits challenging this process were filed in federal courts in San Antonio, Corpus Christi, and Galveston over the last month. These lawsuits were recently consolidated into one case before Judge Fred Biery in the Western District of Texas, San Antonio Division.

On February 27 and February 28, the district court entered the attached preliminary orders. The district court noted the “unanimity among the parties, counsel and the Court that non-American citizens are ineligible to vote.” And the district court acknowledged that the non-citizen list maintenance process was performed in good faith to carry out statutory list maintenance duties. At the same time, counties should pause their efforts on this list maintenance process as they continue to review the now-refined data generated from the DPS database.

In this case, and in previous cases involving voter roll maintenance, the Secretary of State has maintained that he lacks the power to order counties to update their voter rolls. However, pursuant to the district court’s February 27 order, the Secretary of State advises all counties “not to send any notice of examination letters nor remove voters from registration without prior approval of the Court with a conclusive showing that the person is ineligible to vote.” I am alerting you that the district court ordered that, in relation to the list at issue in Election Advisory No. 2019-02, local officials are “not to remove any person from the current voter registration list until authorized by this Court.” These provisions of the district court’s order do “not prohibit the removal of any person based upon information independent of Advisory 2019-02, such as death, relocation or felony conviction,” or the removal of any persons who are excused or disqualified from jury service because of non-citizen status or persons who request to be removed from the rolls because of their lack of citizenship.

Additionally, to the extent that the Secretary of State provides subsequent lists of potential non-citizen matches on a monthly basis, this office advises all counties “not to send notice of examination letters nor remove voters from registration without prior approval of the Court,” as indicated in the district court’s February 27 order. Again, this “does not prohibit the removal of any person based upon information independent of Advisory 2019-02, such as death, relocation or felony conviction,” or the removal of any persons who are excused or disqualified from jury service because of non-citizen status or persons who request to be removed from the rolls because of their lack of citizenship.

Please also note that the district court’s order allows local officials to “continue to find out if in fact someone is registered who is not a citizen, so long as it is done without communicating directly with any particular individual on the list.” Pursuant to the district court’s order, if voters “initiate the contact with a county elections administrator,” you may communicate directly with these individuals.