Texas Secretary of State David Whitley, appointed by Gov. Greg Abbott, still must clear the Senate Committee on Nominations and a two-thirds vote in the full Texas Senate.
Miguel Gutierrez Jr./The Texas Tribune

BY Ross Ramsey

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When the appointed chief elections officer of the state of Texas can’t define “voter suppression,” it’s safe to say his appointment is in trouble.

David Whitley’s confirmation as secretary of state is in trouble. It’s not just because of that voter suppression business, either: He was in hot soup before he testified at Thursday’s meeting of the Senate Nominations Committee. Almost two weeks ago, his office released a half-baked roster of 95,000 people who registered to vote and were at some point noncitizens. The names of those folks were referred to the attorney general for investigation and possible prosecution. And that exercise fueled political salvos from Republicans cawing about “illegal immigrants” voting in Texas. After all that, the heat was expected.

Whitley spent his time in the hot seat trying not to say anything controversial enough to cut into his chances at confirmation — or his chances in any of the three lawsuits filed (to date) against his office for producing a bogus list of voters who shouldn’t be voting.

He explained that the list was supposed to be sent to officials overseeing elections in the state’s 254 counties for checking, so that they could sort the names that should be on the voter rolls from those that should not. The list matched the names of people who had identified themselves as noncitizens when applying for driver’s licenses and state IDs at the Texas Department of Public Safety with state voting records. It turns out to be a buggy database.

That’s the kind of thing the county people were and are supposed to sort out. But the secretary of state put out a news release announcing the 95,000 names in question and the 58,000 among them who voted. His office referred it to Attorney General Ken Paxton for possible prosecution — before counties had any chance to find out whether anyone on the list had broken any law at all.

It included some real humdingers, like an intern working for state Sen. John Whitmire, D-Houston, and a reporter at The Dallas Morning News. Whitley wouldn’t offer or endorse a specific number but admitted that thousands of the names on his list didn’t belong there and didn’t need to be prosecuted, scolded or removed from the state’s voting rolls.

Whitley will find out in a week — on Valentine’s Day, for the sentimental — whether the Senate Nominations Committee thinks his appointment should go to the full Senate. That’ll be a week of closed-door meetings and hallway whisperings as Abbott’s office tries to get 21 of 31 senators to vote for Whitley.

That would be difficult enough, just on job performance. It’s worse than that; it’s election law.

With Republicans still reeling from a tough 2018 election cycle, and political people in both parties looking down the road to the next big redistricting round in 2021 — the next time the Legislature meets in regular session — the stakes are higher.

Voting rights groups and Democrats have been arguing for several years that the state of Texas intentionally discriminates in its voting and election laws and ought to be placed back under federal oversight — which would block changes in law until they’re approved either by the U.S. Department of Justice or the federal courts.

Many of them point to Whitley’s list, with the publicity-seeking announcement and the referrals to the state’s top lawyer, as evidence of that.

In his own defense, Whitley said he was doing what the law requires, from the request for help from the state police to the delivery of the list to county clerks for cleanup. He said he would include more information in the news release if he had to do it all over again.

Under questioning from Sen. Kirk Watson, D-Austin, he admitted that, in retrospect, he might have skipped the referrals to the AG, but said he wanted the AG’s help making sure the voter rolls were accurate. He told another Democrat, Sen. Borris Miles of Houston, that he had conferred with the AG on the wording of the news release because “we wanted to accurately portray the message.” Miles checked him on that. “‘Accurately portray?’” he asked. “Yes,” Whitley replied.

The best indication of the difficulty Whitley will have winning a confirmation that will include at least two of the Senate’s Democrats came during brief questioning from state Sen. Royce West, D-Dallas. He wanted to know if the publication of the list was designed to discourage former noncitizens and others from voting.

“How do you define ‘voter suppression’?” West asked.

“I think it’s irrelevant,” Whitely answered.

“You’re the secretary of state, sir,” West said. “It is relevant to me if I’m going to vote for your confirmation.

“Easy question.”