Election Advisory No. 2021-11

To:	Voter Registrars/Elections Administrators
From:	Keith Ingram, Director of Elections
Date:	September 9, 2021
RE:	List Maintenance Activity Involving Potential Non-United States Citizens

On September 10, 2021, the Secretary of State’s office will begin sending voter records to counties as part of a revised process for identifying and removing non-United States citizens from the State’s voter rolls. This process will be conducted in accordance with the parties’ settlement agreement in the litigation regarding the Secretary of State’s January 2019 list maintenance activity (LULAC v. Whitley and consolidated cases).

This Advisory provides an overview of the revised process and outlines the actions that you should take with respect to any data files sent to you. Our office has also provided web-based training and demonstrations to voter registrars on the revised process.

Summary of Agreed-Upon Process

Consistent with the LULAC settlement agreement, 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. These DPS records are limited to individuals who are at least 18 years old and hold a current (unexpired) driver license or personal identification card. The DPS data does not include individuals who obtained a replacement license/identification card or changed their personal information before the expiration of their existing license or identification card.

The Secretary of State will match the DPS records with the statewide voter registration database (TEAM) using the following criteria:

Last Name (including Former Last Name on the Voter Record), First Name, and Full Social Security Number (9 digits);
Last Name (including Former Last Name on the Voter Record), First Name, and DPS-Issued Driver License or Personal Identification Card Number; or
Last Name (including Former Last Name on the Voter Record), First Name, Last Four Digits of the Social Security Number, and Date of Birth.

Out of the matched voter records, the Secretary of State will identify those individuals who registered to vote before they presented documents at a DPS office indicating their non-citizenship. This is determined by comparing the effective date of a person’s voter registration (EDR) to the date on which DPS issued the person’s current license or identification card. The Secretary of State will send to county election officials the records of currently registered voters whose EDR is prior to, or up to 29 calendar days after, the issuance date of the voter’s current license/identification card for which the voter proved lawful presence but not U.S. citizenship.

The revised process will have three main components:

The Secretary of State will provide county election officials an initial dataset of possible non-U.S. citizens. This set will consist of all existing voter records, as of July 25, 2021, that satisfy the matching criteria and EDR specifications described above.
The Secretary of State will continue to send data to county election officials on a weekly basis. Each week, DPS will provide the Secretary of State with a list of individuals who are at least 18 years old, hold a current driver license or identification card, and presented evidence of non-citizenship at their last DPS visit in which they were issued a new or renewed license or identification card in the previous week. The Secretary of State will utilize the matching criteria identified above and send to county officials the records of currently registered voters whose EDR is prior to, or up to 29 calendar days after, the issuance date of the voter’s current license/identification card for which the voter proved non-U.S. citizenship. Please note that as the weekly process is implemented, the initial transmissions may contain multiple weekly files.
On a daily basis, the Secretary of State will send to county election officials the records of voters who were previously identified as a possible non-U.S. citizen in the initial file or a weekly file and have subsequently presented evidence of their citizenship at a DPS office.

Processing of Initial/Weekly Files

As indicated above, any records sent to you through the revised process must satisfy one or more strict matching criteria. However, all of these records must be treated as weak matches. This means that you may not immediately cancel any voter’s registration simply because they are identified as a potential non-U.S. citizen in the initial file or a weekly file.

In determining whether a voter is eligible for registration in your county, the voter registrar may use any lawful means at the registrar’s disposal. (Tex. Elec. Code § 16.033(a)). As you review records of potential non-U.S. citizens identified through this process, numerous sources may be available for you to investigate voter eligibility before you send a notice of examination. For example:

You should thoroughly review the voter’s application file for any evidence of U.S. citizenship. The voter may have previously submitted documentation of citizenship in responding to a notice of examination.
Other governmental entities in or around your county may have verified the citizenship of the voter in providing certain public services.
Some county voter registrars and volunteer deputy registrars maintain lists of naturalized citizens or can identify voter registration applications that were completed at a naturalization ceremony.

If you can confirm through any permissible means that a voter is eligible for registration in your county, you should not send a notice of examination to the voter.

Pursuant to Section 16.033(b) of the Election Code, if a voter registrar has reason to believe that a person is no longer eligible for registration, the registrar must notify the voter in writing that their registration status is being reviewed. Based on the refinement of the DPS data and the strict matching criteria being utilized for this process, it is the Secretary of State’s position that a voter’s presence on the initial file or a weekly file provides a county with reason to believe that the voter is no longer eligible for registration if the county’s independent investigation does not demonstrate that the individual is a U.S. citizen.

We have created a new notice of examination exclusively for this list maintenance activity. The updated notice will be posted on the Secretary of State’s website and is available in the TEAM system.

Pursuant to state law and the LULAC settlement agreement, after receiving a notice of examination, a voter can prove U.S. citizenship in several ways, including by presenting a copy of:

U.S. birth certificate;
Consular Report of Birth Abroad of a Citizen of the United States issued by the United States Department of State;
U.S. passport;
Certificate of naturalization of the voter;
Certificate of naturalization of the voter’s parent (along with the voter’s foreign birth certificate) that allowed the voter to become a U.S. citizen while he or she was a minor; or
Any other form prescribed by the Secretary of State.

The voter can provide documentation of their citizenship by personal delivery, mail, fax, or email. (Tex. Elec. Code § 1.007).

The voter registrar must cancel the voter’s registration if (1) the voter responds to the notice and the registrar determines upon review of the response that the voter is not eligible for registration; (2) the voter does not respond to the notice of examination within 30 days after the notice is sent; or (3) the notice of examination is returned as undeliverable with no forwarding information available. (Tex. Elec. Code § 16.033(d)).

As a reminder, if a voter’s registration is canceled for failure to respond to a notice of examination but the voter later provides proof of citizenship (including at the polling place), the voter must be reinstated. The reinstatement takes effect immediately. (Tex. Elec. Code § 16.037).

Processing of Daily Files

Each daily file provided by the Secretary of State through this revised process will consist of voters who were identified in a prior DPS non-citizen file and who subsequently returned to a DPS office where they submitted proof of U.S. citizenship. The TEAM system will allow you to print these records for further review and/or for placement in the voter’s file for retention purposes.

The appropriate action to take with respect to voters identified on a daily file depends on the current registration status of the voter:

If you have not yet sent a notice of examination to the voter, no further investigation of the voter’s eligibility is needed.
If you have sent a notice of examination to the voter within the last 30 days, you should close the pending dashboard task in the TEAM system and not cancel the voter’s registration.
If the voter’s registration was appropriately canceled before the voter is listed on the daily file, you should retain a copy of the daily record with the voter’s application file. The voter registrar is not permitted to take any further action as to such individuals. A voter who has subsequently become a U.S. citizen after their voter registration was properly canceled must submit a new voter registration application to the voter registrar.

Resources

If you have any questions regarding the investigation of a specific voter, you should consult with your county attorney.

Additional questions regarding the revised process outlined in this Advisory may be directed to the Elections Division, toll-free at 1-800-252-VOTE(8683). The Elections Division’s voter registration team is available to provide technical assistance and address any TEAM-related questions. We are also posting instructional materials and reference guides on the TEAM Docshare site as a resource for all county voter registrars.

KI:CA