AUSTIN, Texas — Gov. Greg Abbott, Lt. Gov. Dan Patrick and other top Texas Republicans have joined Attorney General Ken Paxton and urged the all-GOP Texas Court of Criminal Appeals to reverse its recent ruling that Paxton can’t prosecute voter fraud unilaterally.
In separate statements Tuesday, Abbott and Patrick chided the state’s highest criminal court for undermining a big push last year by them and the Republican-controlled Legislature to enact “election integrity” changes, which critics have assailed as being designed to suppress the votes of minorities, young people and other blocs that tend to vote Democratic.
“Texas passed the nation’s strongest election-integrity law to make it easier to vote and harder to cheat, cracking down on voter fraud,” Abbott spokeswoman Renae Eze said in a written statement. The attorney general is “Texas’ highest law enforcement officer [and] has constitutional authority to enforce that election-integrity law,” she said.
In a written statement, Patrick said “we need checks at the state level to ensure that our elections are fair” and it would be “completely unacceptable” to let a particular county attorney or district attorney have the final say on an election-related criminal prosecution.
“If the court’s decision stands, certain rogue county and district attorneys will be allowed to turn a blind eye to election fraud, and they will have the final say on whether election fraud is prosecuted at all,” he said.
At issue in the intra-Republican fracas is whether it takes a constitutional amendment to let the attorney general lead a criminal prosecution — normally, the province of county and district attorneys — or whether a law passed by the Legislature is enough.
More than two dozen state and federal GOP lawmakers from Texas and state Republican Chairman Matt Rinaldi of Irving have signed onto various amicus briefs that support Paxton’s request for a rehearing in the case. Patrick and state senators argue that the Court of Criminal Appeals ignored 70 years of legal precedent letting the attorney general take up cases that local prosecutors don’t pursue.
Steven Hotze, a leading Harris County conservative activist, launched a robocall campaign, generating calls and emails to the court in protest of its ruling, the Houston Chronicle reported late Monday.
“If this decision isn’t reversed, then the Democrats will steal the elections in November and turn Texas blue,” Hotze said in a prerecorded message used in the calls.
Democratic lawyer Chad Dunn of Austin, though, said the Court of Criminal Appeals “fully followed the law” in a case that presented “not even a close question.”
“From our state’s founding, the AG has not been allowed to unilaterally prosecute criminal cases,” he said. “It would be extraordinary for the court to change the clear requirements of the state constitution.”
The hubbub stems from Paxton’s high-profile pursuit of election-law violations, including 6-year-old allegations against a southeast Texas sheriff.
In an 8-1 ruling on Dec. 15, the Court of Criminal Appeals dismissed campaign finance violation charges against Jefferson County Sheriff Zena Stephens. The charges involved her first election to the office in 2016. After an investigation by the Texas Rangers found Stephens accepted individual cash contributions greater than $100, which is a violation of campaign finance law, the local district attorney declined to prosecute her.
Paxton, though, took the case to a grand jury in adjoining Chambers County. He did so without the consent of the Chambers County prosecutor, Stephens’ lawyers have noted. However, the Jefferson County district attorney had referred the Rangers to Paxton’s office, and they presented their findings to Paxton.
In April 2018, the Chambers County grand jury indicted Stephens on three criminal counts, including a felony charge of tampering with a government record and two misdemeanor offenses involving the alleged cash contributions exceeding $100.
A trial court granted Stephens’ request to quash the felony count, but in July 2020, a state appellate court reinstated it. Both the trial and appellate courts denied her constitutional challenge to the remaining charges. Stephens argued that a 1985 law passed by the Legislature, which granted the attorney general authorization to prosecute election-law violations, was insufficient.
Stephens, in a brief by Dunn, argued that the state “constitution provides that an official of one branch of government may only exercise functions of another branch if ‘expressly permitted’ by the constitution itself.” So lawmakers would have had to submit a constitutional amendment to Texas voters to achieve their aim, not just pass a law.
Dunn quoted a 2002 decision by the Court of Criminal Appeals, in a capital murder case arising from Collin County, that noted that Texans made a concerted decision after the post-Civil War Reconstruction era to decentralize all state powers and prevent a repeat of a powerful governor and executive branch. That included taking away criminal authority from the state Supreme Court and giving it to a separate appellate court and pushing decisions of the judicial branch to prosecute down to hundreds of different county prosecutors, the appeals court said in Saldano vs. State.
“This diffusion of authority to prosecute is in keeping with the deliberately ‘fractured’ nature of Texas government, in which the framers of our constitution, influenced by the political philosophy of the Jacksonian era and the despotic control of the reconstruction governor, deliberately chose to decentralize executive authority,” it said.
Last month’s ruling effectively struck the election code provision that gave the attorney general the authority to directly prosecute voter fraud cases. The court ruled that the provision violates the separation of powers between branches of government. In Texas, it said, the requirement of constitutional permission for a branch to do another branch’s job suggests a more “aggressive” separation of powers than in the U.S. Constitution.
On Jan. 3, Paxton, who has said the ruling could be “devastating,” asked for a rehearing.
In an amicus brief organized by state Sen. Paul Bettencourt, R-Houston, he, Patrick and 13 other GOP senators argued the state has “a compelling interest” in preserving the integrity of its elections.
The senators noted a separate provision of the state constitution “requires the Legislature in regards to elections by ballot to ‘make such other regulations as may be necessary to detect and punish fraud.’”
“There is no separation of powers issue between the attorney general and district attorneys as they both bring cases in the courtroom in the name of the state,” they argued.
Congressman Louie Gohmert of Tyler, who is challenging Paxton in the March 1 GOP primary for attorney general, joined with scores of Texas GOP officeholders and activists in another amicus brief that said the Court of Criminal Appeals decision, if it stands, “would have serious repercussions.” Former Dallas state Sen. Don Huffines, a foe of Abbott in the upcoming gubernatorial primary, also signed onto that brief.
Abbott and Patrick, each of whom is seeking a third term this year, have defended the sweeping election law passed last fall. They insisted that clean elections required some tightening but that there was no intent to inconvenience or deny the vote to Texans eligible to cast a ballot.
Though experts have said instances of election fraud are rare, neither Abbott nor Patrick directly has repudiated former President Donald Trump’s unsupported assertions that the 2020 presidential election was rigged.
Paxton’s office has made prosecuting election fraud a major initiative. In 2020, the office closed 16 cases in a state with nearly 17 million registered voters. Paxton announced in October the creation of an election integrity unit, and his office regularly touts arrests made in voter fraud cases.
The ruling could have far-reaching consequences in the numerous voter fraud cases his office is pursuing. It could also hinder Paxton’s ability to prosecute a host of new crimes Republicans added to their sweeping rewrite of election law this year. Now, election officials can be criminally charged for obstructing a poll watcher’s view or handing out mail-in ballot applications to people who didn’t request one.
In a news release last month, Paxton’s office noted that it was prosecuting more than 500 felony election fraud cases in Texas courts. It was unclear what effect Wednesday’s ruling will have on those prosecutions.
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