Print 🖨

The Senate Committee on Nominations met February 7, 2019 to take up several nominations. The following report covers only the nomination of David Whitley for Secretary of State.

This report is intended to give you an overview and highlight of the discussions on the various topics the committee took up. It is not a verbatim transcript of the hearing, but is based upon what was audible or understandable to the observer and the desire to get details out as quickly as possible with few errors or omissions.

 

David Whitley

  • Campbell: Expressed support for the nomination of David Whitley to Secretary of State and discussed a number of Whitley’s positive qualities.
  • I am honored to serve in this position
  • My mother’s attitude of service has had a lasting impact on my life
  • Conducting a project to ensure voter rolls are up to date and contain only eligible voters.
  • I have served the state for many years and will bring the knowledge and experience I have gained in those positions to the office of the SoS
  • The SoS office is not a law enforcement agency, but we can provide our counties and law enforcement with the most accurate data to help with accuracy of voter rolls
  • Buckingham: What are the two primary responsibilities as SoS?
    • Help counties administer elections, ensure records are accurately kept
    • Maintain a statewide list of registered voters to assist counties
  • Buckingham: There has been controversy surrounding your office. How did that process begin and how will it proceed in the future?
    • On the day we announced the election advisory, we cited a statute that requires DPS to share personal information with SoS.
    • One such piece of information is voter registration. That requirement led to this list maintenance process.
    • In March 2018, DPS and our office began exploring how to conduct list maintenance activities.
    • DPS shared the best data with us concerning who was not a citizen.
    • After that, our office began training counties on how to best handle this information.
    • Our office conducted 10 trainings for the counties
    • When we got the data, we wanted to ensure it was given to someone with investigative authority.
    • We want to ensure that everyone who is qualified to vote has every opportunity to do so.
    • We want to ensure our voter rolls are as accurate as possible.
  • Buckingham: You agree that it is your primary duty to comply with state and federal law regarding voting rights?
  • Buckingham: You are required by law to take steps to prevent illegal voting?
    • Depends on how that is characterized. We don’t have investigative authority. All we can do is ensure voter lists are as accurate as possible.
  • Buckingham: Under election advisory issued by your office on to county registrars January 25, 2019, you cited Section 18.0681 of the election code. This section was created by HB 4034 (85th session), is that consistent with your memory?
    • Whitley: I would have to go back and look at that legislative history.
  • Buckingham: Regarding the issuance of the election advisory 2019-12 issued on January 25, 2019, do you believe your office acted in compliance with law established in HB 4034?
    • Anything our office did was in regard to this election advisory was in accordance with state and federal law.
  • Watson: In the list sent to counties you indicated 95,000 non-citizens with a matching voter registration record, of whom 58,000 had participated in Texas elections. We know for certain today that the list was wrong, don’t we?
    • Whitley: The list making process is collaborative, we will ensure the counties have the data they need to ensure that if anyone on that list is eligible to vote they will be able to vote.
  • Watson: I was asking a different question. If the assumption in the press release was that 95,000 individuals were not US citizens, and 58,000 non-citizens voted, we and your office know for certain today that that information is incorrect, do you agree?
    • I would like to emphasize that there have been many different reports and statements about those numbers, and since then the counties have been working to ensure their lists are as accurate as possible. If you are asking if there is confirmation from counties if any of those 95,000 are actually citizens, we have received that confirmation. We have told the counties to keep those individuals on the rolls.
  • Watson: Are you willing to admit there were any mistakes made in sending out that list?
    • When we received the data from DPS, we were confident it was their best data. We compared that to the team database to determine who was registered to vote, and that was our top line.
  • Watson: So you’re not willing to admit mistakes made by your office?
    • There are always ways to improve the process. We were confident that was the best data from DPS.
  • Watson: Is it true that some of that data showed they were citizens?
    • I have seen that reported.
    • We sent the list out so the counties could compare the information to their own information. When it is communicated to us from the counties to keep people on the rolls, we will fulfill it.
  • Watson: Is it your testimony, that the data provided to you by DPS in December 2018, do you know if that data also showed those people were citizens?
    • I don’t know how the data was analyzed. We immediately received feedback from the counties.
  • Watson: That’s not what I’m talking about. Have you sat down with DPS and asked them to walk you through the data they provided to your office?
    • Our two offices did meet. I think the process and data can be improved.
    • When we received the data from DPS, I was confident it was the best data.
    • If there are any improvements to be made in the process, I am committed to changing that process.
  • Watson: Before you issued the 95,000 names, did you sit with DPS to ensure you wouldn’t send our names that you know are citizens?
    • When I took office I received a briefing that this process was continuing from before I was in office.
    • I was confident that because of how long the process had gone on, it was the most accurate assessment we could get from DPS.
  • Watson: Who in your office was the manager for this program?
    • Keith Ingram is the leader of the elections division. Christina Atkins and Betsy Shawnoff have interfaced significantly with DPS. I have provided the committee with emails between our office and DPS.
  • Watson: In March 2018 a request was made to DPS, who provided a response in the millions, much higher than the press release correct?
    • The number was significantly larger than the top-line number in our press release.
  • Watson: And that was because DPS included both active and inactive licenses?
  • Watson: If someone enters a DPS office and wants to get a license, even if they are not a citizen, they are entitled to a license if they are lawfully in the US. People who are permanent reidents can get a non-citizen license and later become a citizen without informing DPS correct?
    • That is correct.
  • Watson: In April you asked for a different batch because the original data was not what you were looking for?
    • That is correct.
  • Watson: There was some discussion then that the new batch of data requested in April could be provided in December?
    • I will have to look at the email again, but I believe that is correct.
  • Watson: When you say this was a year long process, it really was March and April?
    • That is certainly a reasonable characterization based on the emails. I do not know about any phone calls made between April and December.
  • Watson: Whether or not this was going on before you got there, you ultimately did get there and issued the 95,000 names to everyone. Did you yourself ever look at what DPS provided?
    • I’ve looked since the list maintenance process began.
  • Watson: Who is your vendor?
    • PCC
  • Watson: What did you ask the vendor to do?
    • Take the DPS data and match it to the statewide voter registration database.
  • Watson: Did you ever look at the data before issuing the press release?
    • I don’t recall. I do not think I did but I do not recall.
  • Watson: Has anyone told you the data DPS provided SoS revealed that 10s of thousands of those people actually are citizens.
    • The paper may say that. When I received the data, I believed it to be DPS’ best.
  • Watson: If Jane Doe, a permanent resident of the US, gets a drivers license and indicates she is not a citizen, you are aware that DPS verifies her status in this country. Once that is done, if she becomes a citizen and indicates she is a citizen, are you aware that DPS data would show she is a citizen?
    • I am not aware of that. I am not sure how your scenario affects that data.
  • Watson: Would it surprise you that some of DPS data indicated that someone had not been a citizen but then became one?
    • One of the most important parts of this activity is that it is collaborative. If adjustments need to be made on DPS or SoS’ part, I am absolutely willing to pursue those changes.
  • Watson: The press release you sent out on April 25 gives the sense that you are accusing people of acting in an illegal manner.
    • I have heard that, but SoS does not have investigative authority.
  • Watson: You don’t put out press releases on all maintenance activity, do you?
    • Not to my knowledge.
  • Watson: The only time you’re aware of SoS issuing a press release is when you think you’ve found non-citizens and want counties to purge their voting rolls.
    • It is important to me to be transparent about the process.
  • Watson: In a routine maintenance activity, why did you have the sense of urgency?
    • You’re asking for the reason for the immediacy of getting the data to the AG’s office?
  • Watson: Yes, why was it immediately necessary to refer it to a law enforcement agency?
    • This list maintenance activity is the first one conducted concerning qualification to vote.
    • It was important to me to get the data in the hands of someone who can do something with it.
    • The AG has statewide jurisdiction in enforcing election law, we do not.
  • Watson: If what you’re doing is as you say, and you weren’t at least attempting to create the appearance of illegal activity, then there’s no reason for immediately referring 95,000 people to the office of the AG. That could have waited until you had the verification of numbers.
    • I’m not familiar with how the AG conducts these investigations, but I can tell you that my reason for transmitting this data was to ensure these lists are as accurate as possible.
  • Watson: On the same day you issued the press release and referred these 95,000 people to the AG, there were a number of social media tweets that went out that same day. The campaign account of the AG sent out a voter fraud alert. The Governor thanked the AG and SoS for uncovering this illegal voter registration. At the time did you consider this illegal voter registration?
    • I don’t want to interpret the words of others.
  • Watson: Did your office do anything to clarify that you were not alleging these people are participating in illegal activity?
    • I had several meetings where we provided comment to the media.
  • Watson: Did you put out any statements where you said ‘we are not alleging illegal activity’?
    • I would need to review media requests.
  • Watson: What is the tool the counties have that you don’t?
    • The counties have local resources at their disposal.
    • It is important to distinguish between and online county, one which keeps their records within the team database, and an offline county which keeps their records on their own.
    • Some offline counties have data fields for voters that we do not.
  • Watson: One of the tools they have is the Notice of Examination of Citizenship. If someone fails to respond to this, they are purged from the voter roll?
    • They must ensure they have reason to believe the person should be removed from the roll.
  • Watson: In that same advisory, you told them this is some of the strongest matching criteria.
    • In a list maintenance process, we should be able to rely on the accuracy of that data.
  • Watson: Someone sends a notice of examination, and they do not respond, that will result in them being purged from the voter roll?
    • Yes, by state law.
    • They will receive the examination letter and a cancelation notice.
  • Watson: In Galveston County, at least 62 people were sent examination letters. Do you know the statewide number?
    • I don’t.
  • Watson: If you are leaving the enforcement up to the counties, how is that in compliance with the National Voter Registration Act?
    • We follow state and federal law.
  • Watson: If you leave this to the counties, how does that ensure uniformity?
    • Uniformity required under federal law is one we have reached with our statewide database.
  • Watson: Was any analysis done at SoS to see if this might have a discriminatory impact?
    • I am confident in our process.
  • Seliger: This list speaks to voter eligibility?
    • We are trying to determine who is and isn’t qualified to vote.
  • Seliger: How many of the names on that list had voted previously?
    • 58,000 had voting history.
  • Seliger: Voting history implies citizenship?
    • Our office has no investigating authority.
  • Seliger: When they went to vote, they had to provide registration cards?
    • Various forms of ID may be required.
  • Seliger: ID’s imply citizenship?
    • Certain ID’s speak more to citizenship than others.
  • Seliger: If DPS has a list of people allowed to vote, how then do those people get on a list that draws into question that eligibility?
    • Are you asking how they got into the team database?
  • Seliger: If they voted previously, how did their eligibility come into question?
    • That is a technical question about the data that I am not eligible to answer.
    • The question may be best asked of the custodian of DPS’ data.
  • Seliger: Could my name show up on that list?
    • I don’t know.
  • Kolkhorst: HB 4034 gave you certain duties. You mentioned there had been 10 trainings for counties. Of those 10, you mentioned 200 counties had participated. In those trainings, what did you tell them about the process you are taking with your new duties?
    • It was important to conduct the training in a way familiar to the voting registrars. So we followed the jury summons format.
  • Kolkhorst: You have said you don’t keep citizen records in your office. New citizens notify the county. How does that get back to DPS?
    • Those are two different sets of data on citizenship.
    • DPS’ data was based on someone entering a DPS office and saying they are not a citizen.
    • The counties have different methods.
  • Kolkhorst: There is a lot of interaction between you and the registrars. Is there a way to make this process better?
    • Processes can always be improved.
    • Any list maintenance activity that involves a data set that is this large requires great attention.
    • I am willing to work with counties and DPS to improve the process.
  • Kolkhorst: Did you train registrars on how to ensure they do a further query on the names given to them?
    • When counties found it difficult to perform that list maintenance activity, we provided updated guidance to the counties.
  • Kolkhorst: You cautioned counties that there may be mistakes in your data and it is there duty to double check it?
    • Yes
  • Kolkhorst: If someone casts a provisional ballot, are they then reinstated to the voter roll?
    • Once proof of citizenship has been demonstrated.
  • Kolkhorst: When errors were found in the 95,000, has your office worked with counties to ameliorate this?
    • Yes
  • Alvarado: HB 4034 has to do with duplicate registration and not DPS citizenship data. Why was no gathering of information done until 2018?
    • Neither the DPS database nor the SoS TEAM database were as reliable as they are now in terms of matching functionality.
  • Alvarado: Is the vendor under contract through DPS or SoS?
    • SoS
  • Alvarado: When these lists were released, you said you alerted counties that there may be some inaccuracies.
    • Yes, that was a part of the training.
  • Alvarado: There seems to be a lack of due diligence before this list was released. The work product either wasn’t double checked, or someone intentionally sent out false data.
    • We are trying to achieve as accurate a list as possible.
  • Alvarado: Do you believe releasing this list unintentionally targeted Latino voters?
    • No piece of data from DPS or our office included anything about race or ethnicity.
  • Alvarado: We are talking about citizenship. Can you tell me about code 64? That is used to determine citizenship. Was that included in this list?
  • Miles: I want to know if there were any outside influences that led into this. Do you know of anyone in your office that communicated with the Presidential Advisory Commission on Elections Advisory before it was disbanded?
    • No, I am not aware. I believe that Commission was disbanded before I became Secretary.
  • Miles: Did you or your office have any communication with anyone from the federal government before your election advisory was issued?
  • Miles: Who did your office work with, either in government or elsewhere, in your investigation?
    • We do not have consultants and we do not investigate.
  • Miles: Did you communicate with the Governor about this list maintenance exercise before its release?
    • We provided estimates to the Governor’s office.
  • Miles: Was he made aware of it immediately?
    • We ensured the Governor’s office knew what we were announcing?
  • Miles: Was there any pressure from the Governor’s office concerning the press release?
    • No
  • Miles: The Governor’s office approved the press release?
    • I would not characterize it as approval, but they knew it was going out.
  • Miles: Did the AG shape the press release?
  • Miles: Did you have any other conversations with other officials regarding electoral advisory issues?
    • I ensured the Speaker and Lt. Governor’s staff knew we were releasing it.
  • Hall: This is the first time this has been done. This process had to take place to see what we needed to do to fix it. Can we count on you to ensure election security and to have ‘zero tapes’ printed?
    • Yes
  • Hall: There have been waivers in the past to allow vendor computers to be hooked up to voting machines. Also, the constitutional requirement that our ballots be numbered has been waived. I hope we reinstate these processes so that we can ensure election security.
  • Hall: Expressed support for Whitley.
  • Menendez: Earlier you mentioned you held trainings with counties. Did the issue of naturalized citizens ever come up in training?
    • Not that I remember.
  • Menendez: You mentioned that the last training occurred before your press release. How long before was it?
    • One day before.
  • Menendez: Why did you not ask the counties to help you vet the data?
    • That is exactly what’s going on right now. The list maintenance process is to ensure the data is as accurate as possible.
  • Menendez: If DPS doesn’t have the naturalized data, maybe its not the best data.
  • West – Are you familiar with the concept of voter suppression?
    • I have heard about it anecdotally
  • West – Do you believe your press release could intimidate people into not voting?
    • I have heard that said. If I could change anything about this process, I would add substantive data to the actual press release and not simply the advisory.
  • West – You were not sensitive to those issues when you released the press release?
    • I am sensitive to all voter issues.
  • West – As it relates to sanctions a person may encounter, do you believe that was sensitive?
    • The election advisory linked to in the press release goes through the entire process.
  • West – How do you define voter suppression?
    • What we are doing with the counties is ensuring voter suppression does not take place.
  • West – How do you define it?
    • Discouraging people from voting?
  • West – Do you believe what you are doing is discouraging people from voting?
    • No
  • Watson: Are you willing to tell counties not to issue notices of examinations and ask the AG to not complete any criminal investigations until the process is complete?
    • I do not want to commit to such a wide sweeping action without first consulting with the counties.
  • Watson: Would you ask the AG to not engage in any activity until the activity is complete?
    • I am willing to discuss it, I am not sure if it is appropriate coming from my office because we do not have any executive authority.
  • Whitmire: I have an intern who received the notification, there is a lot of red tape and difficulty involved in proving you are a registered voter. This issue must be taken seriously. I hope any documents the Committee requests from the Secretary will be quickly serviced.

 

Public Testimony

  • Nina Perales, lead counsel in a lawsuit challenging Whitley’s “voter purge” – In opposition to Whitley. He did know or should have know that the information was incorrect.
    • Seliger – Is it your impression that the communication from the SoS office was advisory or instructive?
    • Perales – It was instructive. The communication said that it was providing the information for counties to act upon and contained instructions on how to act.
    • Seliger – And some counties acted immediately without vetting the information?
    • Perales – Yes there are a significant number of citizens who received letters and will be stricken from voter rolls in 30 days if they do not act.
    • Watson – Am I correct in saying that some counties acted in different ways?
    • Perales – Yes, some counties reflexively obeyed the instructions in the advisory while others vetted the information before they acted.
    • Watson – Would different counties acting differently constitute a lack of uniformity which would be a violation of the National Voter Registration Act?
    • Perales – Yes it would constitute a violation of the NVRA. There is also a lack of uniformity in checking eligibility.
  • Mike Siegel – In opposition to Whitley on grounds of the voter controversy.
  • Jim Keller – In favor of Whitley if he looks past voter fraud and looks into counting fraud and ballot chain of custody fraud.
  • David Stout, County Commissioner El Paso County – In opposition to Whitley on grounds of voter controversy. In El Paso we vetted the list ourselves and found over 2,000 out of 4,000 total in the list sent to us who were legally registered citizens.
    • Buckingham – Did your county participate in the training Whitley mentioned?
    • Stout – Yes but there was no information on how to deal with naturalized citizens, it was an overview of list maintenance.
  • Anthony Gutierrez, Common Cause Texas – In opposition to Whitley. The SoS had no reason to believe anyone on the list given to the AG had committed a crime. County officials were unclear on what to do with the data that was provided.
  • Cynthia Wetherbee, League of Women Voters of Texas – In opposition to Whitley on grounds of voter controversy.
  • Nina Broadsky – In opposition to Whitley on grounds of voter controversy.
  • Laura Pressley, Tavis County Republican Party Precinct Chair, representing Grassroots America We the People – In support of Whitley. Believes Whitley will clean up the vote counting process.
  • Whitney Peak – In opposition to Whitley on grounds of voter controversy.
  • Cornelia Adams Foster, Precinct Chair in Travis County – Concerned with electronic tabulation and waiver issues raised by Sen. Hall. In support of Whitley, believes he will give follow Texas laws on election integrity.
  • Chamberlain (first name inaudible) – In opposition to Whitley on grounds of voter controversy.
  • Hilda Guillen Gomez – In opposition to Whitley on grounds of voter controversy.
  • Montserrat Garibay – In opposition to Whitley on grounds of voter controversy.
  • Julietta Garibay – In opposition to Whitley. Was on voter list, received letter saying she had committed voter fraud.
    • Alvarado – What did it feel like to become a naturalized citizen and then appear on a list accusing you of voter fraud?
    • Garibay – I was very mad. I know it happened because I am foreign born and a Latina.
    • Alvarado – What did you do after you received the letter?
    • Garibay – I called the voter registrars office, but it was a frustrating process.
    • Alvarado – The burden should not be put on you to prove your citizenship.
  • Lon Burnam, former member of Texas House of Representatives – In opposition to Whitley on grounds of voter controversy. There are problems with the election process, but voter fraud is not a problem.
    • Hall – You said there was no voter fraud in Texas, do you believe that?
    • Burnam – There is some, but it is virtually non-existent. The issue is exploited for purposes of voter suppression. The real problem is with the appropriators and the implementation of the law.
  • Matt Long – In support of Whitley. Volunteers as election clerk.
    • Hall – Have you ever seen anyone turned away from the polls?
    • Long – No I have never seen it. It is impossible to not vote in Texas. The biggest red flag is if someone walks in and does not cast a ballot.
    • Watson – We live in a state with a strong history of denying people the right to vote. While in Mr. Long and Mr. Hall’s experience they may have never seen anyone turned away that has not been the case historically and probably is not the universal experience today. In addition, people who are lawfully registered to vote should not have to jump through additional hoops in order to vote. Fear and intimidation can keep people from voting even if they are lawfully registered.
  • Jacob Arnowitz, field director for Mike Siegel for Congress – In opposition to Whitley. Whitley either acted in bad faith or is wildly incompetent.
  • Alejandra Oliveira – In opposition to Whitley on grounds of voter controversy.
  • Gail Johnson – In support of Whitley. Volunteers as election clerk.
  • Samantha Robles, Progress Texas – In opposition to Whitley. In the short time Whitley has been in office he has been shown to be unfit.
  • Adam Khan – In support of Whitley. In response to Sen. Watson’s statements about historic voter suppression in Texas, “the 100 years while Democrats were in power, voters were suppressed”.
  • Craig Cosgrove – In support of Whitley. He has inherited a dysfunctional system.
  • Domingo Garcia, National President of LULAC – In opposition to Whitley. He should have owned up to his mistake.