By Justin D. Davenport
On March 4, 2016, the American Civil Rights Union (ACRU) filed suit in the U.S. District Court for the Southern District of Texas, McAllen Division, alleging that Starr County had violated § 8 of the National Voter Registration Act (NVRA). The ACRU argues that Starr County “failed to make reasonable efforts to conduct voter list maintenance programs” and, therefore, the county has failed to meet its obligations under § 8. Starr County is the third Texas county whose voter rolls the ACRU has challenged for allegedly listing more registered voters in the district than citizens eligible to vote.
On August 12, after the Texas Attorney General’s Office was notified by the ACRU about the pending case, Assistant Attorney General Adam Bitter submitted a brief arguing that the District Court should not hold Texas responsible because the State lacks the authority to ensure Starr County maintains proper voter lists.
But, on August 29, when Mr. Bitter presented his argument before the court, U.S. District Judge Ricardo Hinojosa seemed perplexed by the Attorney General’s involvement in the case, since the judge has said from the case’s inception that the Texas Secretary of State is the proper defendant for an alleged § 8 violation.
According to Judge Hinojosa, the NVRA’s requirement for the secretary of state to keep an official statewide voter list indicates that the State Department is obligated to ensure all voter rolls across the state are accurate. He also pointed out that as a federal statute, the NVRA is meant to ensure state compliance and that, therefore, when there is a violation, the statewide representative — the Texas Secretary of State — should be notified.
Although ACRU attorney Christopher Coates offered that the secretary of state’s office received a copy of the notification letter that was sent to Starr County, Judge Hinojosa did not believe that sufficient: “The whole scheme of the statute is that the state should be involved.” Seeming nonplussed — “I really don’t understand why you refuse to bring in the proper party…” — the judge went on to suggest that bringing one lawsuit against the secretary of state, rather than every individual county, would be both more proper and more efficient.
According to Coates, however, the responsibility to comply with § 8 lies with individual counties, and if the court held one county responsible the rest would fall in line.
For that reason, the ACRU named Starr County’s Elections Administrator, Rafael Montalvo, as the defendant, adopting the same strategy it had in its two previous cases against Texas counties, both of which ended favorably for the plaintiffs in a settlement and a consent decree, respectively.
However, Mr. Montalvo suspects that the ACRU – a proud adversary of and conservative counterpart to the left-leaning civil rights group the ACLU – is targeting rural border towns like his, replete with Latino voters who vote predominantly Democratic, because “they want to break up the vote.” In his view, Starr County is not the appropriate target for expensive, protracted litigation because it merely conforms to statewide voting regulations.
The District Court was expected to rule on the case in early September. But, the court has not yet announced a decision. Mr. Montalvo said that the delay can be attributed to the ACRU’s recent decision to take Judge Hinojosa’s advice. The ACRU will name the Texas Secretary of State as a defendant but, unfortunately for Starr County’s Elections Administrator, Mr. Montalvo will remain a party to the suit.
(I reached out to the ACRU for comment, but as of submission they had not responded.)