Analysis: How the Texas Senate handles David Whitley could reverberate for years

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Never forget that the Texas Legislature is always shopping and swapping. Nothing is ever dead while lawmakers are still in session.

And there is no such thing as a sure thing when your lawmakers are talking to each other.

That’s why David Whitley isn’t at home watching Netflix and polishing his resume.

Instead, Whitley is back on track for confirmation as Texas Secretary of State. His nomination, bright and shiny and new in December, grey and scuffed and in tatters two weeks ago, has been resuscitated.

Maybe. Remember this is the legislative season: things die, come back to life, and die again.

Whitley is not out of the dark and scary parts of the legislative forest, and there are plenty of beasts still ready to pounce. But with a nod from the Senate Nominations Committee, he appears, at this moment, to be on his way to a vote from the full Senate.

It’s a minute-by-minute thing. The only safe answer to the question of whether Whitley will win confirmation is: “It depends.”

It takes 21 of the 31 senators to approve a gubernatorial appointment. Or — this is very important — two-thirds of the senators present when the vote is taken. If they’re all there, that’s 21 votes. If only 24 senators are in the room when an appointment is up for approval, it takes just 16.

The Texas Senate has 19 Republicans and 12 Democrats. To win approval from the full Senate, the Republican appointee would need support from all of the elephants and two of the donkeys. Two Democrats would have to buck their own party and vote for Whitley. In the alternative, three Democrats could take a moment to go outside and vape or go to the Capitol Grill for a cup of coffee. With 28 senators on the floor, only 19 ayes would be required, and the Republicans could do it with no Democratic votes.

Whitley shouldn’t be in this fix; it’s not the normal course of things for a top nominee. Senators from both parties are predisposed to give governors wide latitude in their appointments. The underlying idea is that if you win a statewide election to run the government, you ought to be allowed to run the government. The Senate is there as a backstop, to keep out the skunks.

Whitley managed to raise a stink just weeks after taking over as the state’s top elections administrator, and the skunk patrol got busy.

Whitley’s office released a list of nearly 100,000 people who registered to vote and who were, at some point, listed as noncitizens in state records. The SOS shared the list with the attorney general for investigation and possible prosecution. It said local election officials should check for people who didn’t belong on the voter rolls and to see whether non-citizens had voted. The first result was a barrage of disapproval from Republicans — including the president — over the apparent voter insecurities of the Lone Star State.

Some Democrats, along with some lawyers who specialize in election and voter law, have latched onto Whitley’s voter roll fandango as an attempt at vote suppression — one that’s specifically targeted at minority voters. If federal judges were to agree with that assessment, Texas could be “bailed in” to federal supervision of its election and voting law changes, which would force the state to seek federal approval before changing any of those laws in the future.

Redistricting will be at the center of the legislative agenda in two years, after the next federal census; requiring the state to get federal preclearance could make that political mapmaking much more difficult for the Republicans in charge and easier for the Democrats who are not in charge.

In other words, this isn’t really just about one big mistake by a new Texas Secretary of State. If Whitley is busted by the Senate — which could happen with enough nays or by never calling for a vote during the current legislative session — it’ll be a compelling argument for those election lawyers.

On Thursday, Gov. Greg Abbott put the blame squarely on the Department of Public Safety, saying they gave SOS “an admittedly flawed” list that “hamstrung” Whitley and his office. “The SOS has been very clear,” Abbott told Lubbock radio host Chad Hasty.

“His goal is to make sure there’s no voter suppression, but I think he’s advancing something that we can all agree upon: No one who is in the country illegally, who is illegally registered to vote, should be capable of voting.”

Whether it was that PR campaign or something else, Abbott got the Senate to budge, to vote Whitley out of the Nominations Committee Thursday. That could mean he’s got two Democrats ready to break ranks, either by voting for Whitley or by disappearing during the vote.

It could also mean the governor — and his appointee — are still shopping for support.

Correction: An earlier version misstated the number of absent senators it would take to put the nomination in the hands of the Senate's 19 Republicans; the 19 would constitute two-thirds if 28 of the Senate's 31 members were present.

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