The laws that make up the Texas Election Code are merely suggestions if breaking them has no consequences. It is imperative that our election laws have sharp teeth to ensure accuracy, transparency, and most importantly accountability. We must add more civil and criminal penalties and enhance the ones already on the books to deter negligence and criminal behavior.
Criminals, however, will not be deterred if they know they won’t be prosecuted. The vast majority of Texas District Attorneys have either refused to or have neglected to prosecute violations of election law. Now that the Office of the Attorney General (OAG) has lost concurrent jurisdiction with the DAs, we need new solutions. Texas must establish courts that specialize in election law, expand prosecutorial powers beyond local District Attorneys, and ultimately restore the power to prosecute to the Attorney General.
Top Priority: Prosecution
The process used to be fairly straightforward. Someone would file an election complaint with the office of the Secretary of State (SOS) and if the SOS determined it had merit, it would be forwarded to the OAG for investigation and then prosecution. The OAG could pursue prosecution either with or without the assistance of the local District Attorney.
The passage of HB 1735 in 2017 added Section 276.012, ENGAGING IN ORGANIZED ELECTION FRAUD ACTIVITY to the Election Code. This equated organized election fraud with other kinds of organized crime. If it is found that there are three or more people involved in a “vote harvesting organization”, the penalties for those crimes all rise one category. For example, Class A Misdemeanors would now be state jail felonies. The little fish in harvesting operations would now be facing felonies instead of misdemeanors. They would then have more incentive to turn on the bigger fish that highered them, allowing prosecutors to move up the chain and prosecute the people at the top.
Then, in 2019, the size of the Election Integrity Unit inside the OAG grew with budget increases allowing for more investigators, staff, and effectiveness. This resulted in an increase in prosecutions and the suppression of ballot harvesting through the fear of prosecutions. Unfortunately, lockdowns in 2020 brought those new prosecutions to a standstill. When the investigations and court proceedings were able to resume, the rug was pulled out from under the OAG’s ability to secure convictions once again.
In 2022, the OAG’s successful system, established before the lockdowns, was destroyed. The Texas Court of Criminal Appeals ruled that the AG does not have the authority to prosecute because it is in the executive branch, not the judicial branch.
Now, even the small fish are getting away with election fraud because most local District Attorneys (DAs) are unwilling to prosecute. Some DAs are afraid to stand up to the harvesting operations, fearing they will lose their next election through fraud as a result. Others complain they do not have the resources to pursue these cases they downplay in importance. A few just flat out refuse. As the number of George Soros funded DAs in Texas grows, the situation has gotten even worse.
This is why over 92% of Texas Republicans voted yes on a Republican Primary ballot measure to restore the OAG’s powers to prosecute. Voters were asked to vote yes or no to the statement, “The Texas Constitution should be amended to restore authority to the Texas Attorney General to prosecute election crimes.” The vote is not legally binding, but it sends a clear message to Republican legislators for the next legislative session. Republican voters want the prosecutorial powers restored to the OAG, and most importantly AG Paxton whose record on election integrity has been exemplary.
The Constitutional Amendment that would be required is a huge hurdle, however. It would require 2/3rds of both legislative chambers to pass. We should pursue this option, but we must find others as well.
Election Courts
Election officials, poll workers, vote harvesters, and others involved in the election process are subject to laws in an Election Code that is nuanced and complex. Petitions to the court must be handled quickly and correctly to stop potential fraud in real time. Candidates have very short windows to contest their elections. These are all reasons to have a court or several courts in Texas that are dedicated to election law.
Texas currently has criminal courts, civil courts, family courts, probate courts, juvenile courts, and more. These individualized courts benefit from the specialized knowledge of their judges, attorneys, and staff. Texas would benefit from courts dedicated to election law.
Civil Penalties
Another way to penalize lawbreakers is with civil enforcement. This would be especially effective in the case of Organized Election Fraud as defined in the Election Code. The state would be able to win a case with a lower burden of proof making it easier to go after the bigger fish, those higher up the ladder. Those in the higher tiers are the ones funding the operations, and a large civil penalty would leave them without the funds to continue the operation.
This type of penalty has already been working to ensure the accuracy of our voter rolls. In 2021 the Texas Legislature passed SB 1113 which gave the Secretary of State the authority to withhold funds from counties that failed to conduct proper list maintenance procedures. In an Interim Hearing of the House Elections Committee on August 26th, Christina Adkins, Elections Director for the SOS, testified that the monitoring and limited enforcement granted in the bill “has paid off” and that counties are “taking it seriously”. This simple bill is making a large impact by finally adding consequences to not maintaining the accuracy of our voter rolls.