Republicans voting in the Texas Primary will see a ,,question on the ballot about restoring prosecutorial authority to the Texas Attorney General. Why do we need this? What does the Attorney General have to do with election integrity?
Ken Paxton’s job as Attorney General is multifaceted and includes representing the state of Texas in legal matters, providing crime victim services, ensuring Texas honor their duty to pay child support, and other services regarding upholding Texas state law. Beyond fulfilling constitutional and statutory responsibilities, the ,,Office of the Attorney General (OAG) plays a pivotal role in preserving the integrity of elections and ensuring a robust and transparent electoral process.
Transparency
Often, the first step in election integrity is identifying the problem. That means sifting through election records obtained through Open Record Requests (ORRs). Whether or not information will be released to the public is determined by the ,,Public Information Act (PIA). The OAG is generally the interpreter of the PIA.
If a government agency like an elections officer wants to withhold information from the public, the officer must request a decision from the Open Records Division (ORD) of the OAG. There are times when ,,confidential information must be withheld, but these cases are the exception not the rule. Under AG Paxton, the ORD has typically sided with the citizen and ruled the information must be released. If the elections officer persists in withholding the information, the county must sue the OAG and take the case to court.
Clarification of Intent
There are many times where the Election Code is not completely clear in its language and intent. In these cases citizens and government agencies may request a legal opinion from the OAG. The office investigates legislative intent and other sections of the Texas Constitution and Statutes to render their opinion.
For example, recently, to crack down on illegal electioneering in schools, the OAG not only offered a clear opinion, but also ,,set up a portal for citizens to report violations.
Civil Litigation
Currently, the OAG engages in numerous types of civil litigation and election integrity would be a great addition to that list. Mail-in ballot harvesting and organized election fraud are similar to organized crime in other areas. There are the small fish at the bottom who go door to door physically harvesting the ballots, and then there are the bigger fish at the top who fund the whole harvesting operation. The smaller fish get caught red-handed and are more likely to be criminally charged while the big fish aren’t caught.
Civil litigation as proposed in ,,HB 2619 by Rep. Tony Tinderholt would allow the OAG to engage in civil litigation against these violators of the Election Code. The burden of proof would shift from beyond a reasonable doubt to a preponderance of evidence. This would make it easier to go after the bigger fish in the vote harvesting schemes and deprive them of the money they use to fund the harvesting. Unfortunately the bill never made it out of the House Elections Committee.
Criminal Justice
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 vast majority of election cases used to be prosecuted by the OAG who had concurrent jurisdiction with the local DAs. In 2022, however, this successful system 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.
Right 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.
This is where that Republican Primary ballot measure comes in. While the result will not be legally binding, a large victory for the measure can be used to influence Republican legislators in the next legislative session. It would be a signal that voters want the prosecutorial powers restored to the OAG, and most importantly AG Paxton whose record on election integrity has been exemplary.
General Paxton has been a champion for accurate, secure, and transparent elections both in Texas and representing Texas on a federal level.
In December of 2020 Paxton ,,sued battleground states for using COVID-19 to violate election laws. While that suit was not successful, AG Paxton has been victorious in defending Texas laws, increasing integrity. In December of 2022, he ,,defended HB 1111, passed in 2021, all the way to the Fifth Circuit Court of Appeals.
This law enhanced residency requirements, keeping people from voting in places where they do not live.
Recently, a PAC to overhaul the Court of Criminal Appeals in Texas was formed. The aims of the PAC appear to be reinstating the power of policing election law violations to the Attorney General’s office with historical precedent. Either through legislation or the court system, it is crucial that the OAG’s powers are restored.
Advancing Integrity will keep an eye on this PAC as well as court rulings that impact election law in Texas as we head into 2024. Stay tuned.