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Everything is bigger in Texas, and Ken Paxton looms large on voting rights

The attorney general aggressively pursued voter fraud, but uncovered few actual cases. He’s also trying to overturn voting rights precedents.

A man in a suit and tie waves his hand against the backdrop of an American flag.

Texas Attorney General Ken Paxton at the 2021 Conservative Political Action Conference in Dallas.

Brandon Bell / Getty Images

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Everything is bigger in Texas, including the attorney general’s list of alleged felonies. Ken Paxton has been screaming about election crimes since I was knee high to a grasshopper. Paxton’s recent failures to convince a court there is more voter fraud than you could shake a stick at? Not his first rodeo. His claims? All hat, no cattle.

I could keep going. I won’t.

I want to, but I won’t. (My editor won’t let me.) 

Paxton, a Republican, recently won his primary for re-election against George P. Bush and is favored to win the general election in November against Democrat Rochelle Garza. Voter fraud, and the myth that it is bountiful, has been Paxton’s ticket to popularity with former President Donald Trump’s base. His office has spent millions of taxpayer dollars trying to find it, and he sued four states (not his own) in order to overturn their 2020 election results. On what grounds? Math, obviously. Here’s a real section from his lawsuit:             

“The probability of former Vice President Biden winning the popular vote in the four Defendant States — Georgia, Michigan, Pennsylvania, and Wisconsin — independently given President Trump’s early lead in those States as of 3 a.m. on November 4, 2020, is less than one in a quadrillion, or 1 in 1,000,000,000,000,000…For former Vice President Biden to win these four States collectively, the odds of that event happening decrease to less than one in a quadrillion to the fourth power.” 

Did you read that? Quadrillion!  But the number of zeroes did not impress the Supreme Court, which threw out his lawsuit for lack of standing, calling it “frivolous.” For his trouble, the Texas State Bar has now sued Paxton. His law license is on the table, but that isn’t disqualifying: Texas does not require the attorney general to be a lawyer, and he’ll still have a small army of attorneys working for him. Plus: No term limits.  

You might assume Paxton would face some consequences for his actions. That Texans might find the accusations of bribery, securities fraud, violations of open records laws and abuse of office unbecoming of the state’s top cop. Beyond that, he’s managed to evade a trial date for seven years. But no — Paxton beat Bush by a 40-point margin.   

This means that the state attorney general who has been arguably the most fervent Big Lie litigant currently in elected office will be allowed to continue unabated. It’s tempting to believe that his recent courtroom forays haven’t meaningfully moved the needle here, or that — like Kris Kobach and J. Christian Adams before him — we can simply ignore his lawsuits and alleged criminality. That would be a mistake. 

Even Paxton’s most absurd claims tend to rocket around the world before fact checking begins. That “quadrillion” number was, for example, cited by the White House press secretary and several other high profile Republicans days before fact checks of it began appearing in popular media. And by then, no one outside of the courts much cared that a Harvard professor called the number “comical,” or that the economist responsible for the study had previously donated to Donald Trump.

Paxton’s aggressiveness in the courtroom goes well beyond individual election results. As Alexa Ura with the Texas Tribune has reported, he has been using Texas’s redistricting litigation to make arguments “that could dramatically constrict voting rights protections nationwide for years to come.” Texas has a long history of having its maps thrown out by courts, and this time around Paxton is taking that opportunity to attempt to dramatically reinterpret Section 2 of the Voting Rights Act — opening the potential for the Supreme Court to determine individuals no longer have a private right of action to sue under the law. 

And as our story editor, Carrie Levine, highlights in this piece last year for the Center for Public Integrity, this isn’t an argument being made “out of nowhere.” In a 2020 voting rights dispute, Supreme Court Justice Neil Gorsuch said the existence of such a private right of action — which had, up to now, not been disputed — was an “open question.” Paxton’s efforts could help that question land back before the Supreme Court.

In 2021, the Conservative Political Action Conference (CPAC) held its conference in Dallas. Paxton, among the conference’s top speakers, said that his office’s prosecutions were proof positive that fraud was real. “When people tell you there is no election fraud let me just tell you my office right now has 511 counts in court because of Covid waiting to be heard. We have another 386 that we’re investigating. If you add those together, that’s more election fraud than my office has prosecuted since it started investigating election fraud years and years ago,” he told the audience. 

Of course, “counts” are very different from the total number of people charged. He’s charged only 44 people — the vast majority of whom will likely receive nominal sentences. In 2020, the special team within the attorney general’s office spent 22,000 hours on the project, ultimately prosecuting only 16 cases, none of which resulted in jail time. A report by the Huffington Post showed efforts in prior years were just as fruitless.

But his underwhelming results, in real terms, doesn’t much matter. This is a winning issue for Paxton, and he knows it. He tweets, almost incessantly, about his work on election integrity and his lawsuits against Democrats. As a reward for this advocacy, Paxton won Trump’s endorsement. A poll of Texas Republicans found that Trump’s endorsement successfully swayed half of those surveyed toward Paxton. Paxton’s power comes not from successful litigation, but from being brazen enough to sway Republicans who remain fans of the former president.

But the harms stemming from his one-man mission to save elections go beyond reducing confidence in them:

In 2014, he prosecuted Rosa Maria Ortega, a non-citizen living in the country legally who successfully registered to vote in Collin County and voted several times as a Republican before moving to Tarrant County, which rejected her application to register to vote and began an investigation. Ortega—who did not know she was ineligible and thought her successful registration in one county would mean the same in another—was convicted, sentenced to eight years in prison and faces deportation. Her conviction has been upheld on appeal.  

He prosecuted Crystal Mason, a woman on probation who cast a provisional ballot (which was never counted) and said she didn’t know she was ineligible to vote. She was sentenced to five years in prison in 2018, and  the Texas Court of Criminal Appeals has recently given her the go ahead to argue that she was wrongfully prosecuted

In the run-up to 2020, Paxton criminally prosecuted Travis County Clerk Dana DeBeauvoir after he alleged she interfered with a poll watcher. DeBeauvoir racked up $75,000 in attorney’s fees before a grand jury ultimately squelched the case

After 2020, he prosecuted a man named Hervis Rogers, who achieved temporary social media stardom after waiting in line for hours to vote in Harris County. One day before the Texas legislature reconvened to consider the state’s soon-to-pass election law, Rogers was arrested for voting illegally while on parole and his bail was set at $100,000. Paxton has defended the arrest.

At the tail end of 2021, the state’s highest criminal court — which is completely made up of Republicans — ruled 8-1 that Paxton could not “unilaterally” prosecute election crimes. Of course, this will probably not inhibit Paxton much at all: The court ruled he could still prosecute crimes with the cooperation of local district attorneys, many of whom are very willing to elevate such cases.

Still, Paxton took to Twitter to express his rage over the ruling. “This ruling could be devastating for future elections in Texas,” he tweeted.

Bless his heart.

Back Then

While voter fraud prosecution and prevention have been among Paxton’s most touted policy achievements as attorney general, it wasn’t a passion that burned particularly brightly when he was a lawmaker. Paxton served in the Texas House from 2003 to 2013 before moving to the Texas Senate for two years before he was elected attorney general. In that nearly 15-year stretch he sponsored no major voting legislation, though voted consistently with his party on every such bill. 

New From Votebeat

  • Yavapai County, a Republican bastion in Arizona, loves drop boxes — but conservative state lawmakers want to ban them. Jen Fifield explains how drop boxes, getting fresh attention because of the “2000 Mules” film, became the latest target of the far right.
  • Arizona officials are expecting in-person voting to surge during the August primary election, since fears of COVID-19 have receded and concerns about voting by mail have increased. Maricopa County, which has nearly two-thirds of the state’s voters, is more than doubling the number of in-person locations it has available, compared to the 2020 primary. 

In Other Voting News

  • Politico obtained recordings of meetings between Republican party advocates and activists in which they discuss plans to recruit poll workers and connect them with party-friendly district attorneys who will support challenges to voters. The New York Times, meanwhile, separately looked at the role played by GOP lawyer Cleta Mitchell. 
  • Some states are hiring professionals to oversee the war against election misinformation, the New York Times reports, while others are setting six-figure budgets to monitor and combat it. 
  • A federal lawsuit over a Mississippi requirement that naturalized citizens provide proof of citizenship when registering to vote ended after the state repealed the law and replaced it with a new statute and process that voting rights advocates said will ensure new voters aren’t inappropriately flagged.
  • The Supreme Court, without any noted dissents, declined to stop the deposition of three Texas state legislators in connection with a lawsuit over redistricting. 
  • There’s a push popping up around the country to return to hand-counting ballots, a laborious process that would result in delays and new potential for election subversion, CNN’s Fredreka Schouten reports.
  • The Supreme Court’s decision to stay a lower court’s ruling on whether to count some undated mail ballots in a Lehigh County judicial race could also complicate the ongoing recount for a U.S. Senate seat in Pennsylvania.
  • If you’re trying to understand why some gubernatorial candidates in Michigan didn’t make the ballot, NPR has an explainer. In addition, a petition campaign aimed at requiring voter ID in the state, among other things, won’t be on the November ballot either
  • The U.S. Cybersecurity and Infrastructure Agency has sent a notice to several states using Dominion voting machines, advising them of steps to take after reviewing a report submitted by University of Michigan computer science professor J. Alex Halderman. In a statement, CISA Executive Director Brandon Wales said “states’ standard election security procedures would detect exploitation of these vulnerabilities and in many cases would prevent attempts entirely.” Dominion told CISA that the vulnerabilities were addressed in software updates (Halderman’s report is almost a year old). CISA indicates states should contact the company to determine what, if any, updates are necessary. 

Jessica Huseman is Votebeat’s editorial director and is based in Dallas. Contact Jessica at jhuseman@votebeat.org.

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