Texas

Ken Paxton wants more powers to prosecute election crimes. These bills in the Texas legislature will give him that.

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Two bills filed in the Texas House of Representatives seek to expand the powers of the Texas Attorney General to prosecute election-related crimes. One allows the prosecutor’s office to appoint special prosecutors for such cases, and the other empowers the prosecutor’s office to punish local prosecutors who “restrict the enforcement of electoral laws.”

Although no evidence of widespread voter fraud was found, the Texas Attorney General Ken Paxton has been actively involved in election-related crime since taking office in 2015. In at least the last two years, his office has opened over 300 investigations potential crimes of voters and election officials, but has successfully convicted only a handful. Voting rights experts and advocates say the bills will continue to give government officials the power to scrutinize election organizers, foment new lawsuits and intimidate voters.

In September, the Texas Court of Criminal Appeals ruled in Texas v. Zena Stevens that Paxton does not have unilateral powers to prosecute electoral crimes. Instead, the Texas Constitution grants such powers to local prosecutors, such as district attorneys and district attorneys.

Shortly after the ruling, Paxton publicly urged the Legislature to “correct this mistake.” In a tweet, Paxton wrote, “The CCA’s shameful decision means local district attorneys with radically liberal views have the sole power to prosecute Texas election fraud, which they will never do.”

Experts say the two bills, filed by North Texas Republican lawmakers, are a “direct reaction” and a “detour” to the court ruling.

Paxton’s office did not respond to a request for comment.

House Act 678filed by the Rep. Kate Bell, R-Forney, would allow the attorney general to appoint a district attorney or district attorney from an adjacent county as a special prosecutor in an alleged election crime case. The bill also requires local prosecutors to notify the attorney general’s office of an open investigation into election law violations, rather than the secretary of state’s office. House Bill 125filed by the Rep. Brian SlaytonR-Royse City, will limit the discretion of the local attorney’s office and allow the attorney general to seek a court-ordered injunction to prevent the local attorney from “restricting the enforcement of election laws.”

Austin lawyer Chad Dunn, who has represented clients including Stevens who were prosecuted by prosecutors, said bills filed to expand the attorney general’s powers to prosecute election-related crimes are “unconstitutional.” Dunn said if lawmakers want to expand the Attorney General’s ability to prosecute election-related crimes, they need a constitutional amendment that must be decided by Texas voters.

“It’s amazing to see how Republican officials are trying to micromanage community decisions,” Dunn said. “Prosecutors have every right to determine who they want to investigate and prosecute. And Stevens’ solution makes this clear. There’s just no legal bypass. [of] court ruling”.

Bell and Slayton did not immediately return calls and emails asking for comment.

Slaton’s bill is likely to allow Paxton to intervene when local prosecutors decide not to prosecute election-related violations, said Daniel Griffith, senior political director at Secure Democracy USA. This is the same power that the courts have ruled that Paxton did not have, favoring the power of local officials to prosecute cases.

“[Lawmakers] are going to use every possible mechanism to give the Attorney General such powers,” Griffith said. “This will continue to sow mistrust because we know government officials are looking at the election administration from a criminal investigation point of view.”

Anthony Gutierrez, chief executive of Common Cause Texas, said the bills would also discourage the hiring of election officials.

“The possibility of being prosecuted if you screw up something that Ken Paxton just decided was not a mistake, but a violation of the law, will dissuade the voters, as well as the people who have the right to do so. [election administration] jobs from the desire to do these jobs,” he said.

The limits on the Attorney General’s powers were tested after the Jefferson County District Attorney refused to prosecute alleged campaign finance violations in 2018 against Sheriff Zena Stevens in connection with the 2016 election, Paxton became involved in the case and received an indictment against Stevens from neighboring Chambers County. In 2021, the Texas Court of Criminal Appeals dismissed the indictment. Paxton asked the court to review the case.

In September the court upheld his previous decisionstating that the Prosecutor General does not have the authority to independently conduct criminal cases in the courts of first instance without the request of the local prosecutor.

Then, in October, the district judge invoked that decision when dropped allegations of electoral fraud filed by Paxton v. Hervis Rogers, a Harris County resident who was released on parole and voted in 2020 after waiting in line for hours. Rogers was arrested and charged with two counts of illegal voting in 2021. Paxton did business in neighboring Montgomery County. Rogers publicly stated he thought he had the right to vote when he voted.

Other states have formed special electoral crime investigation units and alleged electoral fraud following former President Donald Trump’s lies about the 2020 election results. GOP attorneys general and governors in Texas, Florida, Georgia and Virginia recently created such units at the state level, but have not yet found evidence of widespread fraud.

In Florida, Gov. Ron DeSantis recently pushed through more restrictive voting laws and tougher penalties for election-related crimes. Last year, DeSantis announced that the state’s newly formed Electoral Crime Unit had been appointed to prosecute 20 people accused of electoral fraud. At least one person was convicted and three more cases were dropped.

Paxton division closed three cases in 2021 and 17 in 2020 without any evidence of fraud.

“Even the Office of the General Assembly (through the various opinions of the General Assembly) and our own Legislature (through numerous statutes) have stated for decades that district and district attorneys have the sole responsibility to prosecute all criminal cases in the trial courts.” – Judge Texas Court of Criminal Appeals. Michelle Slaughter wrote in the September dissenting opinion the court’s decision granted Paxton’s motion that the court review his powers to prosecute election-related crimes. “Given these opinions and legislation, it is quite puzzling why the AG and various legislators in briefs for this court oppose their own opinions and legislation.”

Natalia Contreras does election administration and voting access for Votebeat in partnership with the Texas Tribune. Contact Natalia by phone [email protected]

Disclosure: Common Cause and Secure Democracy USA provides financial support to The Texas Tribune, a non-profit, non-partisan news organization funded in part by donations from members, foundations, and corporate sponsors. Financial sponsors play no role in Tribune journalism. Find the complete list them here.

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