Gov. Greg Abbott asks court to allow Texas AG Ken Paxton’s unilateral prosecution of voter fraud | National
AUSTIN, Texas — Gov. Greg Abbott, Lt. Gov. Dan Patrick and other senior Texas Republicans have joined Attorney General Ken Paxton in asking the all-GOP Texas Court of Criminal Appeals to reverse its recent decision that Paxton cannot unilaterally prosecute voter fraud.
In separate statements on Tuesday, Abbott and Patrick censured the state’s highest criminal court for undermining a major push by them and the Republican-controlled legislature last year to enact “election integrity” changes that critics have attacked to reduce the Suppress minority votes, young people and other blocs that tend to vote democratically.
“Texas passed the strongest election integrity law in the nation to make voting easier and harder to cheat to crack down on voter fraud,” Abbott spokeswoman Renae Eze said in a written statement. The Attorney General is “Texas’ top law enforcement officer [and] has the constitutional authority to enforce this election integrity law,” she said.
In a written statement, Patrick said, “We need state-level controls to ensure our elections are fair,” and that it would be “completely unacceptable” to allow any particular district attorney or county attorney to have the final say on an election-related criminal prosecution.
“If the court’s decision stands, certain renegade district and district attorneys will be allowed to turn a blind eye to voter fraud, and they will have the final say on whether voter fraud will be prosecuted at all,” he said.
The inner-Republican uproar is about whether it takes a constitutional amendment to let the attorney general lead a prosecution — usually the state and district attorneys — or whether a law passed by the legislature will suffice.
More than two dozen Texas state and federal GOP legislators and Republican state Chairman Matt Rinaldi von Irving have signed various amicus briefs supporting Paxton’s request for a rehearing in the case. Patrick and the state senators argue that the Criminal Court of Appeals ignored 70 years of precedent that allowed the attorney general to take on cases that local prosecutors don’t prosecute.
Steven Hotze, a leading Harris County conservative activist, launched a robocall campaign, generating calls and emails to the court to protest his sentence, the Houston Chronicle reported late Monday.
“Unless this decision is reversed, the Democrats will steal the November election and turn Texas blue,” Hotze said in a pre-recorded message used in the calls.
Austin Democratic attorney Chad Dunn, however, said the Court of Criminal Appeals “completely obeyed the law” in a case that “doesn’t even raise a close issue.”
“Since the inception of our state, AG has not been allowed to unilaterally pursue criminal cases,” he said. “It would be extraordinary if the court changed the clear requirements of the state constitution.”
The hubbub stems from Paxton’s high-profile prosecution of voting rights violations, including 6-year-old allegations against a Southeast Texas sheriff.
In an 8-1 ruling on December 15, the Court of Criminal Appeals dismissed the campaign finance violation charges against Jefferson County Sheriff Zena Stephens. The charges involved her first election to office in 2016. After a Texas Rangers investigation found that Stephens accepted individual cash donations of more than $100, in violation of the campaign finance law, the local prosecutor turned it down to prosecute them.
However, Paxton brought the case before a grand jury in adjacent Chambers County. He did so without the consent of the Chambers County Attorney, Stephen’s attorneys have determined. 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 counts, including one count of tampering with a government record and two counts of alleged cash deposits of over $100.
A trial court granted Stephens’ motion to have the felony charges vacated, but in July 2020 a state appeals court reinstated him. Both the trial and appeals courts declined their constitutional challenge to the remaining charges. Stephens argued that a 1985 law passed by the Legislature giving the Attorney General powers to prosecute violations of electoral law was insufficient.
Stephens argued in a Dunn brief that the state constitution “provides that an officer of one branch of government may not perform functions of another branch unless the constitution itself ‘expressly permits’ it.” So the legislature would have had to introduce a constitutional amendment to Texas voters to achieve its goal, not just pass a law.
Dunn cited a 2002 decision by the Court of Criminal Appeals in a Collin County homicide case, which found that after the post-Civil War Reconstruction era, Texans made a concerted decision to decentralize all state powers and a Prevent repetition of a powerful governor and executive branch. That included removing criminal authority from the state Supreme Court and giving it to a separate Court of Appeals, and delegating judicial decisions to prosecution to hundreds of different district attorneys, the Court of Appeals said in Saldano v. State.
“This distribution of law enforcement powers is consistent with the intentionally ‘fractured’ nature of the Texas government in which the framers of our constitution, influenced by Jackson-era political philosophy and the despotic control of the Reconstruction governor, made a conscious choice to decentralize the executive,” it said.
Last month’s ruling effectively met the provision of the Elections Act that gave the Attorney General the power to directly prosecute cases of voter fraud. The court ruled that the provision violated the separation of powers between state authorities. In Texas, it said, requiring a constitutional license for one branch to take over the work of another branch suggested a more “aggressive” separation of powers than the US Constitution.
On Jan. 3, Paxton, who said the verdict could be “devastating,” asked for a rerun.
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 that a separate provision of the state constitution “requires legislators relating to ballot elections to ‘make such other provisions as may be necessary to detect and punish fraud’.”
“There is no question of separation of powers between the Attorney General and the prosecutors as both bring cases on behalf of the state,” they argued.
Congressman Louie Gohmert of Tyler, who is challenging Paxton for attorney general in the March 1 GOP primary, joined numerous Texas GOP officials and activists in another amicus letter saying the Criminal Court of Appeals’ decision , if passed, “would have serious repercussions.” Former Dallas State Senator Don Huffines, an opponent of Abbott in the upcoming gubernatorial primary, also signed the order.
Abbott and Patrick, both seeking a third term this year, have defended the sweeping election bill passed last fall. They insisted that clean elections required some tightening, but that there was no intent to make it difficult or deny voting to Texans eligible to vote.
Although experts say instances of voter fraud are rare, neither Abbott nor Patrick have directly dismissed former President Donald Trump’s unsubstantiated claims that the 2020 presidential election was rigged.
Paxton’s office has made the prosecution of voter fraud a major initiative. In 2020, the bureau closed 16 cases in a state with nearly 17 million registered voters. Paxton announced the creation of an election integrity unit in October, and his office regularly touts arrests in voter fraud cases.
The verdict could have far-reaching consequences in the numerous cases of electoral fraud that his office is pursuing. It could also hamper Paxton’s ability to prosecute a host of new crimes that Republicans added to their sweeping election law rewrite this year. Now election officials can be criminally charged for obstructing an election observer’s view or for distributing mail-in ballot applications to people who did not apply.
In a press release last month, Paxton’s office said it was prosecuting more than 500 voter fraud felony counts in Texas courts. It was unclear what impact Wednesday’s verdict would have on those charges.
©2022 The Dallas Morning News. Distributed by Tribune Content Agency, LLC.