Texas AG Ken Paxton says his office hasn't launched criminal investigations of voters flagged for citizenship review

Texas Attorney General Ken Paxton told lawmakers Friday that his office has yet to take action on a deeply flawed list of nearly 100,000 Texas voters flagged last month for citizenship review.

Paxton wrote a letter to the Senate Nominations Committee the day after a hearing in which David Whitley, the governor’s nominee to be the state’s top election official, conceded that he was aware of potential problems with the list before he referred it to the state’s top prosecutors.

Two weeks ago, Whitley’s office flagged 95,000 Texas voters as potential noncitizens because they had, at some point over the last two decades, identified themselves to state workers as noncitizens while registering for a driver’s license. But in the days since, major flaws have emerged in the data, including the erroneous inclusion of naturalized citizens.

Whitley’s review of the data did not account for people who became naturalized citizens — and then legitimately registered to vote — after receiving those documents. Driver’s licenses don’t have to be renewed for several years, and naturalized citizens are not required to update the Department of Public Safety on their citizenship status.

At the hearing Thursday, Democrats, particularly Sen. Kirk Watson of Austin, expressed concern that Whitley had referred the list to Paxton — the state’s chief legal officer — before counties had been given the opportunity to confirm the citizenship of those flagged. Unlike the secretary of state, Paxton’s office has the authority to launch criminal investigations and prosecute voter fraud. Some lawmakers fretted that sending the preliminary, faulty list to a top prosecutor would intimidate voters.

Whitley defended referring the list to the attorney general, citing his office’s limited authority to investigate. But he also described the data as “preliminary.” Democrats appeared unconvinced by his explanation, repeatedly noting he could’ve waited until local elections officials vetted the list.

Paxton assured senators in the Friday letter that his agency would undertake such probes “only once some counties have completed their list maintenance.”

“To us, justice means charging and prosecuting only if the facts show the person committed the offense and had the required criminal state of mind,” Paxton wrote in the letter, which was first reported by the Austin American-Statesman and obtained by The Texas Tribune. “Charging a defendant without that evidence is injustice.”

But Paxton’s letter also made clear that the delay in initiating prosecutions is largely due to a lack of resources.

“Our undersized Election Fraud Unit was experiencing a backlog of over 80 complex cases even before the SOS notification,” Paxton wrote. “Simply put, even utilizing every resource we have, it would not be possible to investigate tens of thousands of SOS matters before the voter registrars should be able to complete their list maintenance activity.”

Paxton’s agency has asked the Legislature for $2 million and 10 full-time staff members to investigate and prosecute election fraud cases, saying it has too many investigations and too few resources.

It’s unclear when — if ever — local election officials will finish vetting the state’s list. Citing the flawed data provided by the state, some county officials have said they’re holding off on reviewing their lists. In some cases, local officials said they’re concerned they could end up violating the voting rights of naturalized citizens erroneously included on the lists.

If counties do evaluate the citizenship of those on their voter rolls — a process that may be held up for months as three federal civil rights lawsuit march through the courts — the lists of voters whose registration is in question are likely to shrink considerably.

When officials in Florida took up a similar process, a review of 180,000 possible noncitizens ultimately led to the removal of just 85 names from the voter rolls. In Colorado, officials found about 141 noncitizens on the voter rolls after culling a list of 11,805 originally flagged. (Even that smaller number needed to be verified by local election officials, state leaders said.)