By James Barragán, The Texas Tribune
Oct. 19, 2022
In the days leading up to the 2021 attack on the U.S. Capitol by supporters of former President Donald Trump, Texas Attorney General Ken Paxton urged his followers on social media to “stand with President Trump” and “#StopTheSteal.”
On the morning of Jan. 6, 2021, he tweeted that “a lot of voters, as well as myself, believe something went wrong in this election.” And after the attack unfolded, he tweeted that he didn’t believe violence is the answer but was “sorely disappointed today in the certification of the election.” He made those claims even after Trump’s own U.S. Attorney General Bill Barr declared there had been no widespread vote fraud that could have affected the results of the presidential election.
Paxton, who is seeking his third term as attorney general, isn’t a run-of-the-mill election denier, casually casting false doubt on election security. He’s a loyal Trump ally, who tried to get the U.S. Supreme Court to overturn the results of the 2020 presidential election in four states where President Joe Biden had won the election. The court rejected the suit within days, and Paxton was subsequently sued by the Texas state bar for professional misconduct related to the effort. Paxton’s attempt to dismiss the case is pending. He called the case against him a political attack.
That Paxton is so close to securing his reelection this November as the state's chief legal officer is raising alarms from election experts about the impact he could have on future close elections, particularly if Trump runs for president again in 2024. The attorney general in Texas does not administer elections, but the office is in charge of defending and enforcing the state’s election laws and of bringing lawsuits, such as ones that allege voter fraud.
“Paxton took among the most extreme positions of anyone in 2020 filing a brief that did not get traction at the Supreme Court that was advancing a radical theory that would have disenfranchised voters in numerous other states,” said Rick Hasen, a law professor at University of California, Los Angeles and the director of the Safeguarding Democracy Project, which aims to ensure free and fair elections. “Unless he is actually put on trial and convicted or removed or loses his election, we can expect to see more of the same in 2024.”
Paxton is facing years-old securities fraud charges in Texas courts and is the subject of an FBI investigation after eight of his former top deputies accused him of abuse of office for doing political favors for a donor. He has denied all wrongdoing. But he remains the frontrunner, based on polls and fundraising, in the attorney general race against Democrat Rochelle Garza, a Brownsville attorney.
Garza has blasted Paxton for his legal problems and said he is a threat to election security because of his attempts to change how elections are administered. She cited his August legal opinion that said ballots should be made available for inspection to voters the same day they are cast — an opinion that goes against standing state and federal law that aims to safeguard ballots.
"Criminally-indicted Ken Paxton is a threat to our democracy. Paxton’s repeated attempts to change the outcome of elections is alarming,” Garza said in a statement. “I’m running for Texas Attorney General to stand up for the rule of law and protect the integrity of our electoral system.”
Paxton did not respond to a request for comment for this story.
Paxton is among a large number of Republican candidates across the country who have cast doubt or flatly rejected the results of the 2020 presidential election, despite dozens of courts and extensive audits showing no signs of impropriety that would have impacted the results. As of October, more than half the country — 58% of the population living in 29 states — has a candidate running for governor, attorney general or secretary of state who has cast doubt on the 2020 elections, according to States United Action, a nonpartisan organization that advocates for safe elections. (The group also deemed Gov. Greg Abbott an election denier for authorizing a “forensic audit” into the 2020 elections, but Abbott has not openly questioned the election results like Paxton has.)
“A single Election Denier winning a statewide office in a single state could throw our democracy into chaos,” Thania Sanchez, senior vice president of research and policy development at States United Action, said in an email. “The attorney generals we elect this year will be responsible for defending state voting laws and election results. Giving Election Deniers that power would be like putting arsonists in charge of the fire department.”
Nearly two years after the 2020 elections, Paxton still has not said whether he accepts the results of that presidential election, a question posed to his office in The Texas Tribune’s request for comment. His three opponents in the GOP primary earlier this year were asked that question in a debate, but Paxton skipped the event (two of those candidates, Eva Guzman and George P. Bush, said Biden had won the presidency, while U.S. Rep. Louie Gohmert said he did not know).
Last week, Texas Secretary of State John Scott, who was appointed by Abbott and briefly represented Trump in a suit challenging the election results, stressed in an interview with Texas Monthly that Biden’s election was legitimate and “if he wins the next election, he’ll be president for the next four years.”
As recently as May 2022, the head of Paxton’s election integrity unit in the attorney general’s office was continuing to push the idea that the election had been stolen by screening a debunked film called “2000 Mules,” which falsely claims there was significant voter fraud during the 2020 presidential election.
“At this point, anyone who is repeating claims that the 2020 election is stolen has to know that there’s no evidence behind those at all,” said Jessica Marsden, a lawyer at the nonpartisan nonprofit organization Protect Democracy. “It’s not like it’s the middle of November 2020 anymore. All of these claims have been thoroughly investigated and debunked.”
Paxton has also directed his office to increasingly work on voter fraud cases, fanning the flames of conspiracy theorists who believe that election fraud is deciding elections despite ample evidence to the contrary. Such moves started under Abbott, who was Paxton’s predecessor, but has picked up attention over the last decade. Since 2005, the Texas attorney general’s website says the office has prosecuted 155 people for 534 election fraud offenses — about 0.0048% of the 11.1 million Texas votes cast in the 2020 presidential contest alone, and not even a rounding error’s worth of all votes cast in the state over the last 17 years.
In September, the state’s highest criminal court dealt a blow to Paxton’s attempts to prosecute more election fraud cases when it ruled the attorney general’s office could not try the cases without the approval of the local prosecutor’s office. Paxton has said he doesn’t find more fraud because he doesn’t have the resources to do so and because Democratic district attorneys refuse to pursue charges in their jurisdictions.
David Becker, the executive director and founder of the Center for Election Innovation and Research, said having an attorney general casting doubt on the outcome of an election has a “disastrous effect” on the public’s trust in elections and government.
“A democracy cannot sustain itself if that’s the case,” he said. “It’s very concerning when a chief legal officer of the state is spreading lies that no court has upheld anywhere.”
Becker, a former voting rights attorney for the Justice Department who co-wrote the book “The Big Truth” about how claims about voter fraud in the 2020 presidential election evaporate under scrutiny, said he fears the effect that such repeated claims can have on the public and on elections administrators. He said those election workers are leaving the field after seeing increased harassment from people who believe that the 2020 election was stolen.
This August, Paxton set the stage for new vote challenges in the midterm elections and beyond when he released an opinion that said anyone — an aggrieved voter, activist or out-of-state entity — can request access to ballots as soon as the day they are counted. That nonbinding legal opinion is at odds with state and federal law which requires ballots be kept secure for 22 months after an election to allow for recounts and challenges. Experts say Paxton’s opinion exposes election clerks to possible criminal charges and that such audit requests by voters have been used by activists all over the country to “audit” election results.
Chris Hollins was the Harris County clerk in 2020 and was in charge of administering the elections during the COVID-19 pandemic. He said Paxton’s office made it difficult for him to try to increase access to the ballot for people of color and the elderly during a pandemic, and the attorney general’s office even tried to challenge the votes of more than 127,000 voters in Harris County who had cast their ballots through drive-thru voting, a pandemic measure by county officials which the state Legislature later banned. Paxton’s office argued that drive-thru voting and other measures taken by Harris County were not authorized by the state election code and therefore not allowed.
“Our toughest challenge in administering the 2020 election was not the pandemic, it was Ken Paxton,” said Hollins, who is now running for Houston mayor. “Four more years of Ken Paxton is going to do lasting damage to our state, to our communities and we should be fearful of what could happen in a contested 2024 election if he is at the helm in this critical position as chief legal officer of the state of Texas.”
In 2021, Paxton also tried to indict former Travis County Clerk Dana DeBeauvoir on a charge of unlawfully obstructing a poll watcher, a Class A misdemeanor that could result in up to a year in jail. A grand jury returned a no-bill in the matter, meaning it did not find probable cause for the charge.
Overall, Marsden said, Paxton has already done damage to the public’s trust in elections by using his significant status in state government to question the 2020 presidential election despite the claims being roundly debunked.
In a poll conducted by Ipsos and NPR this January, 65% of Americans said they accepted the outcome of the 2020 elections. But that number fell to less than half — 47% — when people who identify as Republicans were polled. Twenty-two percent of Americans said there was major fraudulent voting that changed the result of the elections, with the number going up to 45% when the question was posed to Republicans.
“If you think about the past couple of years as an experiment, I think we’ve seen that these kinds of comments from Attorney General Paxton and others do and have eroded faith in the system,” she said.
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This article originally appeared in The Texas Tribune at https://www.texastribune.org/2022/10/19/ken-paxton-texas-election-denial/.
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