Jan. 12, 2023

"Ken Paxton wants more power to prosecute election crimes. These bills in the Texas Legislature would give it to him." was first published by The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.

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Two bills filed in the Texas House of Representatives seek to expand the Texas attorney general’s power to prosecute election crimes. One allows the office to appoint special prosecutors to such cases, while the other empowers the office to penalize local prosecutors who “limit election law enforcement.”

Although no evidence of widespread voter fraud has been found, Texas Attorney General Ken Paxton has been actively pursuing election-related crimes since he took office in 2015. In at least the past two years, his office opened more than 300 investigations of potential crimes by voters and election officials but has successfully convicted only a handful. Experts and voting rights advocates say the bills would continue to empower state officials to scrutinize elections administrators, ignite more lawsuits and intimidate voters.

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

Soon after the ruling, Paxton publicly called for the Legislature to “right this wrong.” In a tweet, Paxton wrote, “The CCA’s shameful decision means local DAs with radical liberal views have the sole power to prosecute election fraud in TX—which they will never do.”

The two pieces of legislation — both filed by North Texas Republican lawmakers — are “a direct reaction” and a “workaround” to that court ruling, experts say.

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

House Bill 678, filed by Rep. Keith Bell, R-Forney, would allow the attorney general to appoint a county or district attorney from an adjacent county as special prosecutor in a case alleging an election crime. The bill would also require local prosecutors to notify the attorney general’s office of an open investigation related to election law violations, instead of the secretary of state’s office. House Bill 125, filed by Rep. Bryan Slaton, R-Royse City, would limit local prosecutorial discretion and would allow the attorney general to seek a court-ordered injunction to stop a local prosecutor from “limiting election law enforcement.”

Austin-based attorney Chad Dunn, who has represented clients, including Stephens, prosecuted by the attorney general’s office, said the bills filed to expand the attorney general’s power to prosecute election crimes are “unconstitutional.” Dunn said if legislators want to expand the attorney general’s abilities to prosecute election crimes, they need an amendment to the Constitution, which would be up to Texas voters to decide.

“It’s striking to see Republican officeholders trying to micromanage community decisions,” Dunn said. “Prosecutors have absolute discretion to determine who it is that they want to investigate and prosecute. And the Stephens decision makes that clear. There’s simply not some legislative run-around [of] the court ruling.”

Bell and Slaton did not immediately respond to calls and emails requesting comment.

Slaton’s bill would likely allow Paxton to step in when local prosecutors decide not to prosecute election offenses, said Daniel Griffith, senior policy director at Secure Democracy USA. This is the same power courts ruled Paxton did not have, favoring the authority of local officials to prosecute cases.

“[Lawmakers] are going to seek every mechanism they can to give the attorney general that authority,” Griffith said. “This is going to continue to sow distrust because we know state officials are looking at election administration within that criminal investigation aspect.”

Anthony Gutierrez, executive director of Common Cause Texas, said the bills would also hamper election worker recruitment.

“The potential for prosecution if you mess something up, that Ken Paxton just decides is not a mistake but a violation of the law, is going to dissuade voters and also the people who are qualified to do those [election administration] jobs from wanting to do those jobs,” he said.

The limits to the attorney general’s authority were tested after the Jefferson County district attorney declined in 2018 to prosecute alleged campaign-finance violations against Sheriff Zena Stephens related to the 2016 election. Paxton became involved in the case and obtained an indictment for Stephens from neighboring Chambers County. In 2021, the Texas Court of Criminal Appeals dismissed the indictment. Paxton asked the court to rehear the case.

In September, the court upheld its previous ruling, saying the attorney general does not have the authority to independently prosecute criminal cases in trial courts without the request of a local prosecutor.

Then, in October, a district judge cited that decision when he dismissed voter fraud charges brought by Paxton against Hervis Rogers, a Harris County man who was 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 prosecuted the case in neighboring Montgomery County. Rogers has publicly said he believed he was eligible to vote when he cast his ballot.

Other states have formed dedicated units to investigate election crimes and alleged voter fraud following former President Donald Trump’s lies about the 2020 election results. GOP attorneys general and governors in Texas, Florida, Georgia and Virginia have recently created such state-level units but have yet to find evidence of widespread fraud.

In Florida, Gov. Ron DeSantis has recently pushed more restrictive voting laws and tougher penalties for election-related crimes. Last year, DeSantis announced the state’s newly formed elections crime unit was set to prosecute 20 people who were charged with voter fraud. At least one person has been convicted and three other cases have been dismissed.

Paxton’s unit in 2021 closed three cases and 17 in 2020 with no evidence of fraud.

“Even the AG’s Office (through various AG opinions) and our own Legislature (through numerous statutes) have for decades declared that district and county attorneys have the exclusive duty to prosecute all criminal cases in the trial courts,” Texas Criminal Court of Appeals Judge Michelle Slaughter wrote in a September dissenting opinion of the court’s decision to grant Paxton’s request that the court reconsider his authority to prosecute election crimes. “Given these opinions and statutes, it is quite puzzling why the AG and various legislators argue in briefs to this Court against their own opinions and statutes.”

Natalia Contreras covers election administration and voting access for Votebeat in partnership with the Texas Tribune. Contact Natalia at ncontreras@votebeat.org

Disclosure: Common Cause and Secure Democracy USA have been financial supporters 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.

This article originally appeared in The Texas Tribune at https://www.texastribune.org/2023/01/12/ken-paxton-texas-legislature-election-crime-bills/.

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