With Secretary of State David Whitley close to losing his job, anxious Democrats take attendance

With just four days left in the legislative session, state Sen. José Menéndez began his day in the Texas Capitol — but his mind was in San Antonio.

It was his son’s fifth grade graduation, and the Democrat wanted to make the hour-and-a-half drive down Interstate 35 to be there. But one of his Democratic colleagues was supposed to be out Friday. If Menéndez left, it would ease up the minority party’s hard block on the confirmation vote of embattled Secretary of State David Whitley.

Senate Republicans have been unable to overcome the two-thirds vote requirement to confirm the governor’s appointment to serve as the chief elections officer. Things have looked bad for him ever since the chamber’s 12 Democrats came out against confirming Whitley, who presided over a botched review of the voter rolls for noncitizens that threatened the voting rights of thousands of legitimate voters. The Democrats have characterized the secretary of state’s actions as a reckless abandonment of his commitment to the voters of Texas and have derided the turmoil and fear his actions caused among some voters.

Menéndez had submitted what’s known as a non-vote request, asking the chamber to honor the block Democrats had on Whitley’s confirmation without trying to push through a vote in his absence. With two Democrats out, Senate Republicans would still be a vote short, but Menéndez would not leave the Capitol until he was sure his colleagues would honor that commitment.

“If I don’t feel that may be the case, I’ll have to miss my son’s fifth grade graduation,” Menéndez said Friday morning.

When the chamber gaveled in to get to business, Menéndez was seated at his desk at the front of the chamber but continued to confer with his colleagues about taking off. At least one Republican senator appeared to approach him to go over the numbers needed to get to two-thirds in his absence.

The Democrat’s uneasiness Friday illustrated the effort the caucus has made since February to remain united in opposition to Whitley’s confirmation. Without a vote, the secretary of state must leave office immediately when the Senate adjourns Monday. His team — and the governor who appointed him to the post — appear to have made recurring appeals to the chamber’s Democrats to no avail. Now, the clock is ticking.

With the end of the legislative session in sight, a spokesman for Whitley was brief in providing an update on his efforts to secure enough votes: “Secretary Whitley deeply respects each of the 31 members of the Texas Senate.”

“It is relevant to me”

Whitley began his work as the 112th secretary of state on an interim basis after leaving his post as Abbott’s deputy chief of staff in mid-December. Presiding over the first hour of the legislative session in the House in early January, he nodded to the weight that came with both elected and appointed office.

“You must always bear in mind that the decisions you make impact not only your lives but also the lives of your fellow Texans, and your priorities must always be with them,” Whitley said to the lawmakers who filled the chamber with their families. “As Texas secretary of state, my principal duty and my priority is to protect the integrity of our most sacred institution — the electoral process.”

Behind the scenes, his office was preparing to roll out an announcement about the almost 100,000 people on the voter rolls who were being catalogued as suspect voters. Those names would be referred to the state’s top prosecutor before the questions about their citizenship were properly vetted. And Whitley’s office told local election officials that they could send letters to each voter, demanding that they prove their citizenship — or have their names removed from the rolls.

His team would quietly walk back its findings within days because of embarrassing errors in the methodology used to compare the massive voter registration database to a list of Texans who in recent years indicated to the state they were not citizens when they obtained driver’s licenses or ID cards. And officials would eventually admit that they knew all along that people who naturalized after obtaining those documents would likely be included.

All the while, Whitley had to work to convince enough senators that he should remain in his post. Because he was appointed in between legislative sessions, he hadn’t faced a confirmation vote.

But the fate of his tenure seemed to be in real peril when he sat at the witness table for a confirmation hearing in early February.

A named defendant in three federal lawsuits over the review, Whitley faced blistering questions from Democrats on the Senate Nominations Committee, but he struggled to answer technical questions about the flawed data at the heart of the review. And he was unable to offer state Sen. John Whitmire any assurance after the Houston Democrat informed Whitley that his own staffer was flagged by the state for review, even though she is a naturalized citizen.

Democrats’ outrage over the review seemed to peak when state Sen. Royce West, a Dallas Democrat, asked Whitley to define voter suppression.

“I think it’s irrelevant how I would define it,” Whitley responded.

“You’re the secretary of state, sir,” West shot back. “It is relevant to me if I’m going to vote for your confirmation.”

Still looking toward the future

Within weeks, Democratic senator after Democratic senator would come out against his nomination, even after Whitley offered a measured apology to state lawmakers for the way his office bungled its rollout of the review. In a letter distributed after his nomination momentarily stalled in committee, Whitley held firm behind the overall review effort as a legitimate exercise to ensure the integrity of the voter rolls. He did not admit his office had erred when it questioned the citizenship of tens of thousands of U.S. citizens, even though it had quietly informed local election officials of the mistakes.

Instead, he vaguely admitted there were some shortcomings to the data his office relied on and offered that his office should have communicated better to ensure that his “goal to ensure that no qualified voters are removed from the rolls” was clear.

“To the extent my actions missed that mark, I apologize,” Whitley wrote.

Whitley continued to meet with senators, but all 12 Senate Democrats had gone on the record in opposition by Feb. 22. They were backed by a chorus of opposition that included some three dozen civil rights and advocacy groups and the Texas Democratic Party.

The question now was whether they could hold the line.

The caucus strived to be careful about being out of the chamber — even if for somber occasions. When West had to leave Austin in mid-March for his father’s funeral, he asked for a non-vote on Whitley’s confirmation. There were no attempts to vote in his absence.

Whitley, meanwhile, kept his eyes set on the future. While still enveloped in fallout surrounding the review, he convened a meeting in his Capitol office with local election officials.

Vowing to move past the debacle, he wanted to focus on the law seminar his office would host for election administrators in the summer — after the Legislature adjourned. He laid out a preliminary agenda and recognized his to-dos included improving the frayed relationship between the state and the counties, according to someone who attended the meeting. In defending the review in court, the state had blamed county officials for breaking the laws the state was being accused of violating.

The meeting would be one of just several failed attempts by Whitley to clear both the air and a pathway to confirmation. But the missteps continued. In March, officials again mistakenly flagged voters for review because of what they called a vendor error. And then came the announcement of the congressional investigation into the review over concerns of voting rights violations.

Final days

The citizenship review was eventually shut down as part of a settlement about two months after a federal judge signaled his displeasure with the disparate treatment naturalized citizens faced at the state’s hands. A day before the settlement was announced, Whitley himself called election officials to let them know the it was coming.

But at the Capitol, some Democrats declined to give him much credit. State Sen. José Rodríguez, the El Paso Democrat who chairs the party’s caucus in the Senate, called the settlement a “good first step” to address the damage done by Whitley when his office released “false, misleading information” about Texas voters and the integrity of its voting system. But Rodríguez lamented that it had taken court action to end the review.

“This also doesn't repair the harm that's been done,” Rodríguez said.

That didn’t stop Whitley from staking out a spot in the hall behind the Senate chamber days later in a last-ditch effort to meet with Democratic senators with just one month left in the legislative session. He even made a request to address the Democrats at their next caucus meeting.

But that meeting never happened. And the Democrats seem to still have the votes to block the confirmation, despite rumors about potential plays to push a vote through by waiting for the right number of them to be out of chamber or by turning Democrats.

On Friday, state Sen. Eddie Lucio — a Brownsville Democrat whom Whitley opponents have worried about as a possible flip and whose expected absence spurred Menéndez’s turmoil — eventually walked out to his desk.

Menéndez had already left the chamber, but not before state Sen. Paul Bettencourt, the Houston Republican who leads the party’s caucus, came over with a question.

“I thought you were gone today?” Bettencourt said.

Disclosure: The Texas secretary of state's office has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.