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No.

2014-W-0128
In re

BATTLEGROUND TEXAS

IN DISTRICT COURT
187TH JUDICIAL DISTRICT
BEXAR COUNTY, TEXAS

REVIEW OF COMPLANTS ON USING


VOTER REGISTRATION INFORMATION
1. The Film That Starts the Controversy. Project Veritas has posted on
You Tube an undated film that starts the complaint in this case:
http://www.youtube.com/watch?v=gXKwQI_0kDI
The film starts with a view of Jennifer Flores, an organizer
for Batttleground Texas. An announcer asserts they may have become a
new ACORN who use illegal methods to gain voter information.
Announcer: According to the Secretary of State, it is unlawful to-The screen then shows Texas Elections Code 13.004 that reads and is
highlighted in yellow on the screen as follows:
13.004. RECORDING AND DISCLOSURE OF CERTAIN
INFORMATION BY REGISTRAR.
(a) The registrar may not transcribe, copy, or otherwise record a phone
number furnished on a registration application.
(b) The registrar may transcribe, copy, or otherwise record a social security
number furnished on a registration application only in maintaining the
accuracy of the registration records.
(c) the following information furnished on a registration application is
confidential and does not constitute public information for purposes of
Chapter 552, Government Code:
(1) a social security number;
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(2) a Texas drivers license number;


(3) a number of a personal identification card issued by the
Department of Public Safety;
(4) an indication that an application is interested in working as an
election judge; or
At this point, the banner has been inserted in the screen that reflects:
(a) The registrar may not transcribe, copy, or otherwise
record a phone number furnished on a registration application.
The screen resumes the text of (d)(1) through 5 but without color highlight.
While this screen is displayed, the announcer states that, according to the
Secretary of State it is unlawful to transcribe, copy, or otherwise a phone
number off registration cards, which is something Jennifer Longoria reveals
that Battleground Texas is doing multiple times. Longoria reveals a series
of
data bases called the First data base is called My Voters, which is
purchased from the Secretary of State.
Longoria states in an outdoors registration location, My Voters is a list of
every single registered voter in Texas, which we have purchased from the
Secretary of State and then downloaded into our data base. So this is
everybody.1
Announcer: The second tab of the data base is the voters that Battleground
has personally registered. The announcer states that Longoria reveals they
have taken these number off of the forms.
Longoria states, we keep their name, number, andname, address, and
phone number, just so we can get back to them. Another female off screen
The two District Attorneys Pro Tem interviewed Bexar County Elections Administrator
Jacquelyn F. Callanen on Thursday, March 27, 2014. Ms. Callanen related that it is legal,
permissible, and common for the elections office to sell voter lists, especially to
candidates.
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asks, so that is from the voter registration forms? Longoria admits and says
that three weeks before the election they call the voter.
The next scene is unusual. It purports to show a person from Battleground
Texas calling a voter on behalf of (Texas gubernatorial candidate) Wendy
Davis, whose photo is then displayed. However, while this caller is on the
screen, the screen also has a banner that suggests the caller is a PV [Project
Veritas] Investigator While the female depicted has a voice over indicating
that she is making a call, the filmed callers lips never move.
The film clip then jumps to a scene within an office and Ms. Longoria, who
states that the people we registered today, we will be calling in like a year
and saying, heh, I registered you to vote, and its time to go. An off-scene
voice asks, and we get this number from the cards, and Longoria on screen
says, yep, cause its public information. [It is unclear what card is referred
to as no card is seen on camera, and the location is inside an
office versus outside during the voter registration scene.][At this point,
another female is shown next to Ms. Longoria, but that persons lips never
move.]
The announcer states that, while Longoria states its all public information,
the Secretary of State calls this information confidential by law. Private cell
phone numbers are to be redacted.2 The only thing that can be given to
anyone who requests the voter information would be the name and address.
The film then switches back to a voter registration scene which has children
on a slide and persons signing a document on a clipboard. Ms. Longoria,
wearing sunglasses, states, Once we register people to vote tonight, we will
all turn in our cards, and our data person will enter not all the information,
but the name, address, and phone number and then whoever registered
them into a data base because that information will be pulled back up again
once elections come up and we can every one here and say, Hi, I registered
you to vote [the voice then is cut off].
It should be noted that the film shows supposedly potential voters
mulling around paper on a clip board. However, the piece of paper fills out
the full horizontal width of the clipboard, whereas the official Voter
Registration Application is but 6 inches wide by 11 inches deep. The film
2

It is unclear why the announcer mentions only cell phones instead of all phones.
3

does not show any person completing or signing such a form. The film later
at 3:59 shows an actual official voter registration application on a clipboard
atop of a wider piece of paper.
The film then jumps to a totally unrelated event involving the
resignation of an official in Enroll America. A man is shown with a news
crawler that says Clarence Landry, Enroll America Texas, who differs
from the young male shown who had resigned. He states that Enroll
American Texas works and networks with Battleground Texas.
The announcer then asserts that Wendy Davis is using persons
private datamaybe even health data. The announcer is finally shown as
James OKeefe, who pitches for funds for Project Veritas to fight voter
fraud.
At no point is there a depiction in the film of anyones information
being placed on a voter application form, being copied from the form, or
being photocopied from the form.
2. Complaints Filed. In response to the video, complaints were lodged
with the Secretary of State by three persons:
Steve Dallas of San Antonio
Douglas Saegesser of Fort Worth
Kathryn Dulansk
The Secretary of States office forwarded the complaints to the
Attorney General of Texas, Greg Abbott. He disqualified himself from
acting on the case, as he is running for election as Governor of Texas. The
Texas Attorney Generals office forward the complaint to the District
Attorney of Bexar County, where the alleged conduct occurred. District
Attorney Susan Reed disqualified her office from acting on the complaint, as
she is running for re-election. She forwarded the complaint to the then
presiding criminal district court judge Lori Valenzuela. She disqualified
herself from the complaint, since she is running for re-election. She in turn
passed the complaint to the alternate presiding district court judge, Raymond
Angelini. Judge Angelini in turn appointed John M. Economidy and
and Christine Del Prado as district attorneys pro tem, first and second chair
4

respectively, to serve as special prosecutors on the complaint under the


authority of TEX. CODE CRIM. P. art. 2.07.
3. Texas Election Code 13.004. This statute has some application to the
three complaints.
a. Designated Confidential Information. Texas Election Code
13.004(c) identifies certain information on a voter registration application as
confidential and not public information. Subsection (c) makes confidential
only the following information:
(1) A social security number.
(2) A Texas drivers license number.
(3) A number of a personal identification card issued by the
Department of Public Safety.
(4) An indication that an applicant is interested in working as an
election judge.
(5) Under specified conditions, the residence of an applicant who
is a state or federal judge or that persons spouse.
Subsection (c) does not declare as confidential a voter applications
address or phone number. Indeed, local county election offices legally sell
voter registration lists that contain a voters address.
b. Restriction on Posting Certain Information on a Website.
Texas Election Code 13.004(d) states that the voter registrar or other
county official who has access to information furnished on a registration
application may not post the following information on a website:
(1) a telephone number;
(2) a social security number:
(3) a drivers license number or a number of a personal identification
card;

(4) a date of birth; or


(5) the residence address of a voter who is a state or federal judge
or spouse of such a judge.
However, no complaint is made that a voter applicants phone number
or address is posted on a website. It should be remembered that the
announcer in the Veritas film carefully spoke only as to a cell phone
number, not a hard line phone number. Nothing in the film or anything
stated by Ms. Longoria suggests there was a differentiation in the collection
of phone numbers in the data base as being either cell phone numbers or
hard line phone numbers.
c. Texas Election Code 13.004(a). This subsection states merely:
The registrar may not transcribe, copy, or otherwise record
a telephone number furnished on a registration application.
This subsection is relevant for several points: First, the Elections
Code distinguishes between the registrar and a volunteer deputy registrar,
as is shown by Texas Election Code 13.031, which permits the registrar
to appoint volunteer deputy registrars. Additionally, Texas Election Code
12.001 states that the registrar for each county is generally the county tax
assessor-collector, unless the position of county elections administrator is
created or the county clerk is designated as the voter registrar.3 This
provision refers to that official, not any volunteer. Under Texas
Administrative Code 81.5, a volunteer deputy registrar like Ms. Longoria,
does not have the same authority as the registrar. The Texas Attorney
General has clearly pointed out that when the law applies to a volunteer
deputy registrar, the law clearly uses the term volunteer deputy registrar.
TEX. ATTY. GEN. OP. OR2010-08083 (June 3, 2010), reported at 2010
WL 2256831 (Tex. A.G.). Ms. Longoria, who is complained of in the three
complaints, is only a volunteer deputy registrar, not the registrar. Second,
no provision of the Elections Code makes it a criminal offense to violate
Texas Election Code 13.004(a).

Bexar County Elections Administrator Jacquelyn F. Callanan advised the two District
Attorneys Pro Tem on March 27, 2014 that 154 of the 254 counties in Texas have
separate election administrators.
3

4. Texas Attorney General Opinions. The current Texas Attorney


General Greg Abbott has rendered three formal opinions that are relevant to
this case: TEX. ATTY. GEN. OP. OR2010-08083 (June 3, 2010), reported at
2010 WL 2256831(Tex. A.G.), TEX. ATTY. GEN. OP. OR2010-17112
(November 10, 2010), reported at 2010 WL 5107206 (Tex. A. G.), and
TEX. ATTY. GEN. OP. OR2011-06976 (May 18, 2011), reported at 2011
WL 1911618 (Tex. A.G.). All three opinions involve open records.
a. TEX. ATTY. GEN. OP. OR2010-08083 (June 3, 2010).
In this opinion, the Dallas County Elections Administrator received a
request for every record of an alleged voter making an application for a
mail ballot. including the original voter registration cards, etc. The matter
was forwarded to the Texas Attorney General for a formal opinion. The
opinion
held that that certain voter information was declared confidential by Texas
Election Code 13.004(c)[social security number, Texas drivers license
number, Department of Public Safety Identification card, an indication that a
person is working as an election judge, the residence address of a federal or
state judge and that persons spouse] and must be withheld. However, with
regard to phone numbers, the AG opined:
for information to be confidential under section 522.101,
the provision of law must explicitly require confidentiality.
A confidentiality requirement will not inferred from a
provisions structure. See Open Records Decision Nos.
658 at 4 (1998)(stating that statutory confidentiality
provision must be express and confidentiality requirement
will not be implied from statutory structure), 478 at 2 (1987)
stating that, as general rule, statutory confidentiality requires
express language making information confidential), 465,
at 4-5 (1987). Section 13.004(a) prohibits the county from
transcribing, copying, or recording a voters telephone number.
See id. 13.004(a). Section 13.004(d) prohibits the posting
of certain specified information on a website. See id.
13.004(d). Because neither section 13.004(a) or 13.004(d)
explicitly provides that information is confidential, we find
that the county may not withhold the phone numbers and
birth dates of voters from the requestor under Section 55.101
of the Government Code in conjunction with section 13004
of the Election Code. (Emphasis Added.)
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b. TEX. ATTY. GEN. OP. OR2010-17112 (November 10, 2010).


This opinion involved a request under the Public Information Act for the
Harris County Tax Assessor-Collector to provide all documents, other than
voter registration cards. The opinion stated that certain voter information
was declared confidential by Texas Election Code 13.004(c)[social
security number, Texas drivers license number, Department of Public
Safety Identification card, an indication that a person is working as an
election judge, the residence address of a federal or state judge and that
persons spouse]. The attorney general noted that the Harris County Tax
Assessor-Collector had redacted some voters phone numbers. The AG
formally opined:
A confidentiality requirement will not be implied from
a provisions structure. See Open Records Decisions Nos.
658 at 4 (1998)(stating that statutory confidentiality provision
must be express and confidentiality requirement will not be
implied from statutory structure), 478 at 2 (1987)(stating as a
general rule, statutory confidentiality requires express language
making information confidential), 465 at 4-5 (1987).
Section 13.004(a) prohibits the county from transcribing,
copying, or recording the voters telephone number. See
Elec. Code 13.004(a). Section 13.004(d) prohibits the posting
of certain specified information on a website. See id. at
13.004(d). Because neither section 13.004(a) or 13.004(d)
explicitly provides that information is confidential, we find
the county may not withhold the telephone number of voters
from the requestor under section 552.101 of the Government
Code in conjunction with section 13.004 of the Election Code.
(Emphasis added.)
c. TEX. ATTY. GEN. OP. OR2011-06976 (May 18, 2011). In this
opinion, the attorney general reached the same conclusion with the same
authority to respond to a request for an opinion from the Harris County
Attorney, who had been consulted by the Harris County Tax Office
which had received a request for the Texas Voter Registration Application
and Harris Counting Voting Records for two named individuals.
5. Other Statutory Provisions.

(a) Texas Government Code 39.02 proscribes abuse of official capacity


and states:
(a) A public servant commits an offense if, with intent to obtain
a benefit or with intent to harm or defraud another, he
intentionally or knowingly:
(1) violates a law relating to the public servants office or
employment; or
(2) misuses government property, services, personnel or any
other thing of value belonging to the government that has
come into the public servants custody or possession by
virtue of the public servants office or employment.
Interestingly, the categorization of the offense as a Class A, B, or C
Misdemeanor or as a state jail felony or first, second, or third degree felony
depends upon the value of use of the thing misused.
This statute creates several major hurdles for a prosecutor
attempting to prove an offense the required standard of proof beyond a
reasonable doubt. First, the prosecutor must prove that the offender
intentionally or knowingly violated a law related to the public servants
office or employment. Second, there is no proof beyond reasonable doubt as
to the particular value of use of a phone number.
b. The Texas Election Code has few criminal provisions. Section
13.043 makes it a class C misdemeanor for a volunteer deputy registrar to
fail to deliver applications. Section 13.044 makes it a class C misdemeanor
to purport to act as a volunteer deputy registrar when the persons lacks an
effective appointment as a volunteer. These issues are not involved in these
three complaints.
6. Training Materials for Volunteer Deputy Registrar.
The Secretary of State and the local Bexar County Election Administrator
provide certain training materials to volunteer deputy registrars.
a. Volunteer Deputy Registrar HandbookBexar County.
The Bexar County Voter Registration Department publishes a Volunteer
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Deputy Registrar Handbook. It is dated January 24, 2013. It is unknown if


Ms. Longoria received a copy of this handbook. Page 4 of the handbook
discusses accepting voter registration applications and states:
Optional Information:
Gender and phone numbers are optional. These fields do not
have to be completed; however, it is very helpful to our office
to receive as much information about the applicants.
The Bexar County VDR handbook mentions no prohibition on copying
the voter registration card or any information from it.
b. Secretary of State PowerPoint Briefing for Volunteer Deputy
Registrars. The Bexar County Elections Administrator has provided a
35-page PowerPoint slide presentation handout that is provided to train
volunteer deputy registrars. It has no date but it states that the Texas
Secretary of State is John Steen. There is no documentation to reflect that
Ms. Longoria was trained on the PowerPoint presentation. This presentation
makes the following references to phone numbers:
(1) Prohibitions.
A volunteer deputy registrar may not:

***

***
Make the applicant provide his/her telephone number;
or
Keep a copy of the completed voter registration
application itself because this document contains
information that is confidential by law.
The DA Pro Tem notes that the actual voter registration application states
that the spot designated for a phone number has in small type in plain
type face the word (Optional). The attorney general opinions already
show that the phone number on the application is not confidential as a matter
of law.
(2) Mention of Criminal Offense. Only once in this PowerPoint
presentation is there mention of any criminal offense. A single page states:

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FAILURE TO DELIVER AN APPLICATION IN A


TIMELY MANNER IS A CRIMINAL OFFENSE.
(Bold faced emphasis is in the presentation.)
c. Secretary of State Letter from Internet Called Texas Volunteer
Deputy Registrar Guide. The Bexar County Elections Supervisor has
provided the District Attorneys Pro Tem a document that is described as
Texas Secretary of State Nandita Berry Texas Volunteer Deputy Registrar
Guide. It carries a date of 3/13/2014. According to the Texas Secretary of
State webpage, Ms. Berry was sworn in as Secretary of State on January 7,
2014. Ms. Longoria received her certificate of appointment as a volunteer
deputy registrar on June 20, 2013 and her commission expires on December
31, 2014. Thus, it is highly doubtful she was exposed to this Volunteer
Deputy Registrar Guide. Mr. James OKeefe, the president of Project
Veritas, had faxed a letter to the Bexar County Voter Registration
Coordinator on February 12, 2014. As the producer of the film placed on
You Tube, Mr. OKeefe sought Ms. Longorias application to be a volunteer
deputy registrar. The date of Ms. Longorias appointment on June 20, 2013
strongly suggests that she was not exposed to the eight-page March 13, 2014
guide. This is important as any prosecution would have to prove beyond
reasonable doubt that Ms. Longoria intentionally or knowingly violated a
law related to the public servants office or employment under Texas
Government Code 39.02. Page 4 of the guide states:
What you cannot do:
***
***
Make the applicant provide his/her telephone number.
Thus, of course, providing this information on the voter registration
application is optional.
Page 5 on Frequently Asked Questions posits:
Q. May I photocopy a completed application before
turning it in to the counter voter registrar?
A. No. Section 13.004(c-1) of the Code requires the county
11

voter registrar to ensure that certain information, such


as the telephone number, on a registration application
is redacted from photocopies of voter registration
applications from her office. In our opinion, this means
that a photocopy of an application must come directly
from the county voter registrars office, so that he or she
may ensure that the required information has been
blackened out or otherwise obscured. With that said,
we believe that a volunteer deputy registrar may
photocopy the receipt. You may also copy the relevant
information from the application in writing just as you
would be able to do if you went to the registrars office
and pulled a copy of the original application.
(Emphasis supplied by District Attorney Pro Tem.)
Interestingly, page 7 of the letter suggests that the volunteer deputy
registrar retain the receipt books for 22 months following the election.
7. Federal Litigation involving Volunteer Deputy Registrar.
a. Filing of Litigation and Granting of Preliminary Injunction.
Voting for America, Inc., Brad Richey, Penelope McFadden, and Project
Vote, Inc. sued the Texas Secretary of State Hope Andrade4 for declaratory
and injunctive relief against several provisions of Texass law regulating
volunteer deputy registrars (VDR), Tex. Elec. Code Ann. 13.031 et seq.
(VDR Law). Suit was filed in the Galveston Division of the Southern
District of Texas and assigned to U.S. District Judge Gregg Costa.5 In May
2012, plaintiffs moved for a preliminary injunction. After a hearing, the
district court granted the motion in part, enjoining enforcement of the
following provisions of the VDR Law:

Ms. Andrade was succeeded in office by John Steen of San Antonio, who was himself
succeeded by Nandita Berry.
5
Judge Costa, a former law clerk for Chief Justice of the United States William
Rehnquist, was nominated by President Barrack Obama on a recommendation of the
two Republican U.S. Senators from Texas. He was confirmed by the U.S. Senate on
April 26, 2012. President Obama has nominated Judge Costa for the U.S. Court of
Appeals for the Fifth Circuit. Judge Costa attended Dartmouth College and the
University of Texas School of Law.
4

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(1) Texas Election Code 13.031(d)(3) to the extent it


forbids non-Texas residents from serving as VDRs (the
Non-Resident Provision);
(2) Texas Election Code 13.038 to the extent it
prohibits VDRs appointed in one county from serving
in another county (the County Provision);
(3) Texas Election Code 13.008(a)(2) & (3) (the
Compensation Provision);
(4) Texas Election Code 13.038 to the extent it prohibits
VDRs from photocopying or scanning voter registration
applications submitted to the VDR but not yet delivered
to
the county registrar (so long as no information deemed
confidential under 13.004 is included) (the
Photocopying
Provision);6 and

Delivery

(5) Texas Election Code 13.042 to the extent it prohibits


VDRs from sending completed voter registration
applications via United States mail (the Personal
Provision).

Voting for America., Inc. v. Andrade, 888 F.Supp.2d 816, 83943 (S.D.
Tex. 2012) [Andrade I].
b. Stay Pending Appeal to Fifth Circuit. The Secretary of State
appealed and moved for a stay pending appeal, which the district court
denied. A motions panel of this court granted the stay after hearing oral
argument. The U.S. Supreme Court denied Appellees emergency
application to vacate the stay pending appeal. Voting for America., Inc. v.
Andrade, 133 S. Ct. 99 (2012) (Justice Sotomayor would have granted the
application in part). On September 26, 2012, the motions panel issued an
unpublished opinion explaining its reasons for granting the stay, along with
a dissenting opinion. Voting for America., Inc. v. Andrade, 488 F. Appx 890
(5th Cir. 2012) [Andrade II].

This brief of the ruling of the Court of Appeals concerns only this relevant portion on
photocopying and not the other four points in the litigation.
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13

c. Fifth Circuit Opinion Reverses. On October 4, 2013, the U.S. Court


of Appeals reversed and remanded the case. Voting for America, Inc., v.
Steen, 732 F.3d 382 (5th Cir. 2013).
(1) The U.S. Court of Appeals for the Fifth Circuit first decided
if the subject matter could past the so-called Anderson-Burdick test.
Under the federalist structure of the United States, the Fifth Circuit said that
the states are responsible for regulating the conduct of their elections. It is
well recognized that state regulations will invariably affect the individuals
right to vote and his right to associate with others for political ends.
Anderson v. Celebrezze, 460 U.S. 780, 788, 180 S. Ct. 1564, 1570 (1983).
Where a state election rule directly restricts or otherwise burdens an
individuals First Amendment rights, courts apply a balancing test derived
from two Supreme Court decisions, Anderson, supra, and Burdick v.
Takushi, 504 U.S. 428, 112 S. Ct. 2059 (1992). Using the Anderson/Burdick
balancing test, the court must first consider the character and magnitude of
the asserted injury to the rights protected by the First and Fourteenth
Amendments that the plaintiff seeks to vindicate. Anderson, 460 U.S. at
789, 103 S. Ct. at 1570. Next, the court must identify and evaluate the
precise interest put forward by the State as justifications for the burden
imposed by its rule. Id. In passing judgment, the court must weigh
the character and magnitude of the asserted injury to the rights protected by
the First and Fourteenth Amendments that the plaintiff seeks to vindicate
against the precise interests put forward by the State as justifications for the
burden imposed by its rule, taking into consideration the extent to which
those interests make it necessary to burden the plaintiff's rights. Burdick,
504 U.S. at 434, 112 S. Ct. at 2063 (quoting Anderson, 460 U.S. at 789, 103
S. Ct. at 1570). State rules that impose a severe burden on First Amendment
rights must be narrowly drawn to advance a state interest of compelling
importance. Burdick, 504 U.S. at 434, 112 S. Ct. 2063 (quoting Norman v.
Reed, 502 U.S. 279, 289, 112 S. Ct. 698 (1992)). Lesser burdens, however,
trigger less exacting review, and a States important regulatory interests
will usually be enough to justify reasonable, nondiscriminatory
restrictions. Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358,
117 S. Ct. 1364, 1370 (1997). Thus, concluded the Fifth Circuit,
Anderson/Burdick provides no litmus-paper test that excuses courts
reviewing election-related free expression cases from the hard judgments
common in ordinary litigation. Anderson, 460 U.S. at 78990.

14

(2) Like the motions panel majority, the Fifth Circuit panel held it
was unpersuaded that the smorgasbord of activities comprising voter
registration drives involves expressive conduct or conduct so inextricably
intertwined with speech as to require First Amendment scrutiny. Instead, the
Fifth Circuit analyzed the challenged Texas provisions separately because,
as will be shown, discrete steps of the voter registration drive are in fact
separable and are governed by different legal standards. See Planned
Parenthood v. Suehs, 692 F.3d 343, 349 (5th Cir. 2012) (reviewing a
temporary injunction that impermissibly grouped state regulations on
promotion of abortion with the right to affiliate with other pro-choice
supporters). Further, the Fifth Circuit concluded this mode of analysis is
required by the Supreme Court. Anderson, 460 U.S. at 789-90. The Fifth
Circuit held that the First Amendment was not implicated in the issue of
copying information from the voter registration application.
(3) Application Information Does Not Conflict with Federal
Law. The plaintiffs also had urged that the prohibition on photocopying
voter application forms violated the National Voter Registration Act
(NVRA), 42 U.S.C. 1973gg et seq. The U.S. Court of Appeals for the
Fifth Circuit disagreed. Voting for America, Inc., v. Steen, 732 F.3d 382 (5th
Cir. 2013). The Fifth Circuit held that the NVRA mandates that [e]ach
State shall maintain for at least 2 years and shall make available for public
inspection and, where available, photocopying at a reasonable cost, all
records concerning the implementation of programs and activities conducted
for the purpose of ensuring the accuracy and currency of official lists of
eligible voters. 42 U.S.C. 1973gg-6(i)(1). The Photocopying Provision
states that a VDR may distribute voter registration application forms
throughout the county and receive registration applications submitted to the
deputy in person. Tex. Elec. Code Ann. 38.038. As interpreted by Texas
Secretary of State John Steen, who replaced Ms. Andrade, this provision
limited volunteer deputy registrars conduct to collecting and delivering
completed applications and implicitly precludes photocopying. Voting for
America contended that because completed voter registration applications in
the possession of VDRs are public records, the restriction against
photocopying them violates the NVRA. The Fifth Circuit said that the
argument of Voting for American disregarded a crucial distinction: the
NVRA only pertains to records maintain[ed] by the State, while the
Photocopying Provision only applies to voter registration applications in the
hands of VDRs, before they are officially received or maintained by the
State. For this reason, the Fifth Circuit held that the district court misplaced
15

reliance on Project Vote/Voting for America, Inc. v. Long, 682 F.3d 331 (4th
Cir. 2012), a case that specifically addressed the denial of access to voter
registration applications in the governments long-term possession, rather
than those in the hands of VDRs. The question, according to the Fifth
Circuit, was not whether such applications will be made available for
photocopying but how. Thus, the Fifth Circuit disagreed with the district
courts reasoning that the applications received and delivered by VDRs are
within the constructive possession of the state.7 For one thing, the Fifth
Circuit said, this conclusion is not supported by any statutory text and is
contrary to state law prohibiting VDRs from maintaining the applications.
Tex. Elec. Code Ann. 13.038 (deputizing VDRs to receive and deliver
voter registration applications, not to maintain them for the state);
13.042(b) (requiring VDRs to deliver the voter registration applications to
the county within five days). Moreover, allowing VDRs indiscriminately
to photocopy registration applications places at risk the private
information, e.g., social security numbers, they contain, because Steen
and counties have limited means to enforce privacy protections against
temporary volunteers. Because the NVRA and Texas law do not conflict,
the Fifth Circuit held that Voting for American could not prevail on the
preemption claim. The Court of Appeals thus reversed the injunction and
remanded the case.
d. Impact of Fifth Circuit Opinion. It is noted that the Fifth Circuit
opinion leaves intact the attorney general conclusion that phone numbers
on a voter registrationapplicationarenotconfidential.
8. Conclusions.
a. The Veritas video was little more than a canard and political
disinformation. The video was particularly unprofessional when it
suggested that the actions of Battleground Texas were advocated by a Texas
gubernatorial candidate and that the actions of a single volunteer deputy
registrar may even involve private health data, which is not involved in
the voter registration process.
b. Texas Election Code 13.004(a) states, The registrar may not
transcribe, copy, or otherwise record a telephone number furnished on a
This conclusion would seem to negate a suggestion that the volunteer deputy registrar
is a public servant.
7

16

registration application. However, that statutory provision applies only to


the official county registrar, not to a volunteer deputy registrar. This
interpretation is confirmed by formal legal opinions of the present attorney
general of Texas. Additionally, three recent attorney general opinions hold
that ones telephone number on a voter registration application is not
confidential information.
c. Texas Government Code 39.02 proscribes abuse of official capacity
and states:
(a) A public servant commits an offense if, with intent to obtain
a benefit or with intent to harm or defraud another, he
intentionally or knowingly:
(1) violates a law relating to the public servants office or
employment; or
(2) misuses government property, services, personnel or any
other thing of value belonging to the government that has
come into the public servants custody or possession by
virtue of the public servants office or employment.
This provision is not applicable. The volunteer deputy registrar
is not a public servant within the meaning of Texas statutes.8 Assuming
arguendo that she was a public servant, it would be impossible to prove a
39.02 violation by proof beyond reasonable doubt. Attorney General
formal opinions hold that a voter applicants phone number is not
confidential. Training materials for the volunteer do not show that the
TEX. PENAL CODE 1.07(41) defines a public servant as a person elected, selected,
appointed, or otherwise designated as one of the following even if he has not yet qualified
for office or assumed his duties: (A) an officer, employee, or agent of the government,
(B) a juror or grand juror; or (C) an arbitrator, referee, or other person who is authorized
by law or private written agreement to hear or determine a cause or controversy; or (D)
an attorney at law or notary public when participating in the performance of a
governmental function; or (E) a candidate for nomination or election to public officer; or
(F) a person who is performing a governmental function under a claim of right although
he is not legally qualified to do so. TEX. GOVT CODE 553.001 defines public
servant as a person who is elected, appointed, employed, or designated, even if not yet
qualified for or having assumes the duties of office, as: (A) a candidate for nomination or
election to public office; or (B) an officer of government.
8

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volunteer in question was taught or told that it was illegal to copy a voter
applicants phone number. Section 39.02 also requires a prosecutor
to prove beyond reasonable doubt the value of a vote, which is an
impossible requirement.
9. Recommendation. We recommend that the complaint be dismissed for
insufficient evidence and failure to state an offense.
Signed on this 4th day of April, 2014.
Respectfully submitted:
CHRISTINE DEL PRADO
District Attorney Pro Tem
State Bar of Texas No. 08561165

JOHN M. ECONOMIDY
District Attorney Pro Tem
State Bar of Texas No. 06404500

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