Question: What do you get when a Texas Secretary of State puts out a press release (on Jan. 25), that says his office is turning over a list of 95,000 alleged non-citizens registered to vote, of whom 58,000 allegedly voted? To the attorney general, for possible prosecution?
Answer: In this case, you may get the need for Gov. Greg Abbott to appoint a new Secretary of State, Texas’s chief election official, to replace his former staff member David Whitley.
Abbott appointed Whitley Dec. 17 from his gubernatorial staff, where Whitley was assistant chief of staff and worked on gubernatorial appointments.
He had also worked on Abbott’s staff as attorney general, from 2004 until Abbott became governor.
The reason Abbott may have to replace him stems from major flaws in that rollout, which thus involves Democrats in the Texas Senate and its own math problem, which we’ll explain in a minute.
As for the state of Texas, the result is having to defend itself in three federal lawsuits alleging voter discrimination and suppression.
For good-government advocates, it underlines the need for doing a good job.
The secretary of state’s office had taken its list of the 95,000 non-citizens from the Department of Public Safety’s records of people who were non-citizens legally in Texas and got driver’s licenses, and then compared that to records of people who had voted, to produce the 58,000 who may have voted illegally.
The problem was that many of those people, if not most, had subsequently gotten their citizenship, but are not required to report that to the DPS.
Driver’s licenses are good for six years, so that changed citizenship status would not show up in DPS records until they renew their license.
The secretary of state’s office was leaving it up to county election officials to verify whether those potentially illegal voters were actually citizens. But they rolled out the list with much fanfare, surprising local officials.
The blastout, however, was repeated and applauded in tweets by Abbott, Atty. Gen. Ken Paxton – who tweeted under the headline “VOTER FRAUD ALERT” -- and President Donald Trump.
Rather quickly, a lot of discoveries were made of people who shouldn’t have been on the list – most of them because they had gotten their citizenship status after getting their driver’s licenses, and before they voted. But, the DPS records didn’t reveal that.
Now, for the math problem involving Senate Democrats:
Secretary of State Whitley has yet to be confirmed by the Texas Senate, a required step for gubernatorial appointees.
While a governor can make appointments when the legislature isn’t in session – which is most of the time – those interim appointees must be confirmed the next time the legislature convenes.
If the Senate doesn’t confirm the appointee by a two-thirds vote during that session, the appointment becomes invalid.
So, Whitley needs Senate confirmation before the legislative session ends on May 27, or he’s out as Secretary of State. If the Senate holds a vote and he is not confirmed, he’s out immediately.
Whitley appeared before the Senate Nominations Committee Feb. 7, and faced some tough grilling from Democrats senators for ballyhooing the potential widespread voter fraud allegations without making sure they were correct.
Since Whitley’s appearance before the Senate Nominations Committee, his confirmation had not been brought up at its next two Thursday meetings. Whether and when it will be voted on is unclear.
The committee can recommend his confirmation by a majority vote. But in the full Senate, it takes two-thirds of those present and voting to confirm him.
There are 31 members in the Senate – 19 Republicans, and 12 Democrats. If all 31 members are present and voting, it would take 21 senators to confirm him. That would mean two Democrats would have to join all 19 Republicans for that to happen.
As of last week, the final two of the 12 Democrats said they would not vote to confirm Whitley. If Whitley’s nomination reaches the full Senate, if all the Democrats vote no, he’s out of there.
There are certainly calls for Whitley to rescind the voter lists, which are being shredded by local election officials anyway, and go back to the drawing board. But so far, he and Gov. Abbott – who a spokesman said supports Whitley “100 percent” --seem to be continuing to ride the same wounded horse.
But Abbott could decide that rather than go through the embarrassment of seeing his nominee get busted, it might be better for Whitley to resign, and go back to the governor’s staff, and Abbott could appoint someone else.
So far, however, there’s no sign of that happening. Stay tuned.