Follow-up to Breitbart News’ major national story on Battleground Texas, an ACORN-like organization supporting Democrat Wendy Davis for governor, whose operatives appear to violate Texas law by registering voters on behalf of the state, but then illegally copying voters’ telephone numbers into their private database for partisan use later.
Now Democrats are responding with a defense so lame that it seems more likely than ever that in fact crimes are being committing by these Democratic operatives. One national expert compared their comments to squealing pigs.
It began with a story in the Texas Tribune, in which Battleground Texas characterizes its actions as “patriotically working” to advance democracy. That story also quotes a Democratic election lawyer, Buck Wood, who tries to provide a legal defense. In the story, Wood says the plain language of the statute makes it clear that these volunteer deputy registrars (VDRs) are not considered county officials, and that the statute doesn’t address what these volunteers can do with such information.
Yet the U.S. Court of Appeals for the Fifth Circuit, which has jurisdiction over Texas, has definitively said the opposite in a recent ruling in Voting For America v. Steen. In an opinion by the well-respected Judge Edith Jones (who was the runner-up for an appointment to the U.S. Supreme Court in 1990), the Fifth Circuit explains:
- VDRs are “empowered” by the Texas law in question, specifically and solely to “receive and deliver completed voter registration applications.” (Page 2.)
- VDRs are appointed county officials, who must be appointed by a county registrar. (Pages 9, 20.) The county registrar is required to make the appointment for those who satisfy the VDR qualifications, which are minimal, but it nonetheless makes the VDR a government agent.
- The VDR is to “collect, review for completeness, and deliver completed voter registration forms.” (Page 10.)
- While Texas law does not “preven[t] anyone … from passing out registration forms and encouraging others to vote,” regardless of whether they are a VDR, Texas law does “regulate the receipt and delivery of completed voter-registration applications,” activities which are not in any way protected by the First Amendment, so a VDR can claim no constitutional rights to protect their conduct while they are performing their duties. (Pages 12-13.)
- The Fifth Circuit specifically rejected the plaintiff’s argument that “these limits on who may be VDRs and what they may do will interfere with [their organization’s] ability to conduct large-scale registration drives in Texas.” (Pages 14-15.)
- In holding that VDRs are fundamentally different from petition circulators who can advance their own views or agenda, the Fifth Circuit reasoned, “VDRs register fellow citizens to vote. They may ‘advocate’ and ‘interactively communicate’ the importance of registration, but they have a duty to the fellow citizens whose registrations they facilitate.” (Page 16.)
VDRs “assume a role carefully regulated by the state to serve the citizens who register to vote as well as the public interest in the integrity of the electoral body.” (Pages 16-17.)
Texas Election Code § 13.004 permits copying a person’s name and their address (unless they are a judge, in which case it’s kept confidential). But it requires certain information to be kept confidential, such as Social Security Numbers and driver’s license numbers. And it explicitly provides registrars (paid or volunteer) “may not transcribe, copy, or otherwise record a telephone number furnished on a registration application.”
Contrary to Wood’s assertions, VDRs are regarded as county government officials, and the same criminal laws apply regarding copying or disclosing confidential information. The law does not allow a VDR to copy a phone number into a private database for political purposes.
Also contrary to Wood’s analysis, the relevant provision of Texas Election Code § 13.004 is not merely to keep the government from releasing private information such as a phone number to the general public. That would not explain why VDRs are forbidden by law from “transcribing or copying” the telephone number. The VDR can collect and review voter registrations, then must deliver the forms to the county office for processing onto the voter rolls. The only reason for the specific prohibition on copying phone numbers is to prevent the VDR from retaining that information, for any purpose whatsoever.
Yet even Wood admits regarding Battleground Texas’ actions, “They could define it as being improper.” But then he adds, “I don’t think you’d ever be able to reach them criminally.” The defense of, “Well, what they did is improper, so it’s wrong, but I doubt you could convict them of a crime,” is hardly an endorsement.
Texas’ attorney general is in charge of investigating violations of this Texas election law, and deciding whether to bring charges or take Battleground Texas to court. Texas Attorney General Greg Abbott is the Republican candidate for governor, and Davis’ opponent.
Former Ohio Secretary of State Ken Blackwell tells Breitbart News that he would not be surprised if Davis’ campaign tries to make an issue out of Abbott’s dual position, but that this would be completely unfair. He explained:
In 2006 I was the secretary of state while my name was on the ballot for governor, and I still had to do my job regarding election controversies even while I was a candidate. For that matter, in 2002 I was the secretary of state, while my name was on the ballot for secretary of state! (For my second term.) Texans elected General Abbott to investigate law-breaking, and it looks like the law was broken here. Only a partisan hack would criticize Abbott for doing the job he’s already been elected to do.
Blackwell has worked in election-law controversies for almost twenty years, eight as the top elections officer of a pivotal battleground state, and for years since has also served as an official monitor of international elections all over the world. Asked also for comment to the statements from Battleground Texas and Wood, Blackwell responded, “In my years of dealing with election controversies, my experience is that if you throw a brick into a herd of pigs, and you hear a squeal, then that means you just hit a pig. There’s a lot of squealing here, and hope Texas officials investigate the matter.”
Ken Klukowski is senior legal analyst for Breitbart News. Follow him on Twitter @kenklukowski.