Appeals court allows Texas to withhold list of people it thinks are noncitizens and can’t vote

Hundreds of people joined the Texans Rally for Our Voting Rights event to speak out against restrictive voting bills at the Texas Capitol in Austin on May 8, 2021. (Montinique Monroe For The Texas Tribune, Montinique Monroe For The Texas Tribune)

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A federal appeals court has ruled that Texas does not need to release details about a list of 11,737 registered voters whom the state has identified as potential noncitizens.

The U.S. Court of Appeals for the 5th Circuit on Thursday reversed a lower court’s ruling in August in which a district judge had found Texas was violating federal law by refusing to release the list.

The appellate court found that the five civil rights groups suing the Texas secretary of state for the list did not have standing to sue. Circuit Judge Edith H. Jones wrote in the ruling that the groups have neither established injury to themselves from the state’s refusal to release the list nor sued on behalf of any voter included on the list who could be harmed.

The coalition “offered no meaningful evidence regarding any downstream consequences from an alleged injury in law under the NVRA [National Voter Registration Act],” Jones wrote. “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.”

The groups suing the state are the Campaign Legal Center, the American Civil Liberties Union of Texas, the Mexican American Legal Defense and Educational Fund, the Lawyers’ Committee for Civil Rights Under Law and Demos. The groups, which sued the state in February for failing to comply with the NVRA’s public disclosure requirements, sought to hold Texas accountable if it incorrectly misidentified registered voters as noncitizens and disenfranchised naturalized citizens.

“We are disappointed with the court’s opinion and are exploring our options with respect to any next steps,” Molly Danahy, the Campaign Legal Center’s senior legal counsel for litigation, said in a statement. We 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.”

Last year, Texas was sending names from the list to counties across the state to track down and remove flagged voters from voting rolls. County workers found that up to 17% of the voters whose names each county received had legally registered to vote at their naturalization ceremonies.

This isn’t the first time the Texas secretary of state has been sued over trying to identify possible noncitizen voters. In 2019, Texas called into question the citizenship of nearly 100,000 voters, including tens of thousands of naturalized citizens who had legally registered to vote, and sought to rescind their registration. Three lawsuits were filed against the state by voting rights groups, including the ACLU of Texas, and more than a dozen naturalized citizens.

To settle the lawsuits, Texas agreed to end the citizenship review in April 2019. The fallout led to the resignation of David Whitley, the secretary of state who oversaw the review.

The newest round began in December after state lawmakers approved such reviews as part of a hard-fought voting bill that became law in September. More specific criteria led to the state flagging only a tenth of the number of voters flagged in 2019, but this year’s list also included legitimate voters who had become naturalized citizens.

“U.S. citizens have the right to vote, and states cannot impose additional registration requirements depending on a citizen’s nation of origin,” the Campaign Legal Center wrote in a February statement. “Public monitoring is necessary to enforce these constitutional guarantees and protect against state programs that might otherwise deny certain U.S. citizens’ right to vote in a discriminatory fashion.”

Disclosure: The ACLU of Texas and the Texas secretary of state have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.