Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
2014-W-0128
In re
BATTLEGROUND TEXAS
IN DISTRICT COURT
187TH JUDICIAL DISTRICT
BEXAR COUNTY, TEXAS
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
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It is unclear why the announcer mentions only cell phones instead of all phones.
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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
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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.
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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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Ms. Andrade was succeeded in office by John Steen of San Antonio, who was himself
succeeded by Nandita Berry.
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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.
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Delivery
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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(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
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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.
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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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