Editor's note: This story was updated Monday, Nov. 5, with comments Texas Attorney General Ken Paxton made on a Lubbock radio show.
Less than 36 hours before Election Day, the race for attorney general is showing signs of competition that have been absent in just about every other statewide contest.
Republican incumbent Ken Paxton, who was indicted more than three years ago on felony securities fraud charges, has been running a relatively quiet campaign with the comfortable advantage of a GOP incumbent in a state that has not elected a Democrat statewide in more than two decades.
But now he is firing back at his Democratic challenger, Justin Nelson, with a new attack ad — the first one from Paxton that addresses the indictment — and getting a fresh influx of high-dollar campaign donations, signals that Republicans are not taking anything for granted in the race for Texas’ top lawyer.
Nelson, a prominent Austin attorney, has made Paxton’s legal troubles the basis of his campaign and the main focus of much of his advertising — posting billboards around the state featuring Paxton’s mugshot, commissioning a rolling billboard he calls the “Mugshot Mobile” and even sending campaign staffers dressed as Paxton in prisoner garb to frolic on the Capitol grounds in a Halloween stunt. Yet most consequentially, Nelson has spent significantly to air TV ads informing voters all over the state that their attorney general is under indictment.
The anti-Nelson push from Paxton’s campaign suggests that the Democrat’s jabs have been successful in getting something most other Democratic statewide candidates have been aching for: the GOP’s attention. Except for the blockbuster U.S. Senate battle between incumbent Ted Cruz and Democratic challenger Beto O’Rourke, Republican statewide officials have largely ignored their Democratic challengers, let alone gone negative on TV against them.
“Nelson has successfully raised the profile of the race to a level where Republicans began to be nervous that people who vote straight-ticket Republican may cross over in this race as they learn more about Ken Paxton,” said Mark Jones, a political science professor at Rice University. “While they’re still counting on it, they don’t have 100 percent confidence.”
"We've taken it seriously," Paxton told Lubbock radio host Chad Hasty on Monday morning, noting the considerable financial support Nelson has received from legal colleagues and the Democrat's ability to self-fund. As for Tuesday — when U.S. Sen. Ted Cruz, R-Texas, is also fighting for another term — Paxton told Hasty: "Cruz's race could be close. I think mine could be close."
Paxton launched his first TV spot against Nelson late last month. Paxton’s second TV ad against Nelson arrived Friday, and it is a relatively direct response to Nelson’s focus on the indictment, claiming “liberals abused our courts to attack Ken Paxton” and emphasizing that a federal judge dismissed those charges twice.
“Justin Nelson has spent millions of dollars attacking Ken Paxton with misleading ads, and we thought voters needed to know the truth,” said Jordan Berry, a spokesman for the Paxton campaign.
Paxton was cleared in a federal civil case but still faces state criminal charges, to which he has pleaded not guilty. His case is currently tied up in a long-running procedural battle over legal fees that’s pending before the Texas Court of Criminal Appeals.
Paxton’s two ads against Nelson also claim, without citing evidence, that Nelson supports a “dangerous open-borders policy.” The latest commercial features an image of the massive migrant caravan that is heading north through Mexico, claiming Nelson wants to “let everyone in.”
Nelson has called the ads dishonest.
“Ken Paxton is desperate and running scared,” Nelson said in a statement on the latest commercial. “This race is not about right versus left, it is about right versus wrong.”
In addition to the TV ads, Paxton’s recent campaign finance filings have indicated that Republicans in high places are tuned in to the race in its home stretch. In recent days, the attorney general has received a $282,000 in-kind donation from Gov. Greg Abbott’s campaign; more than $350,000 in in-kind contributions from Texas for Lawsuit Reform, the political arm of the tort reform group; and $10,000 each from two of the biggest donors in the Republican Party: Sheldon and Miriam Adelson.
Abbott, Paxton's predecessor, has emerged as a particularly notable presence in the race's closing days. Paxton's latest TV ad highlights his support from the popular governor, and the two appear together in a spot being run on social media.
While Paxton has maintained a fundraising advantage throughout most of the race, Nelson has proven to be more financially competitive than the other Democratic statewide candidates besides O’Rourke. Nelson has raised more than $3.3 million and loaned himself $1.5 million, $1 million of which came just last month.
Paxton has had a comfortable lead in the few polls that have been released publicly. He was up 12 points in a recent University of Texas/Texas Tribune poll that was conducted during the first few days after Nelson’s TV ads began airing — a comfortable margin, but notably smaller than the leads held by Abbott and Lt. Gov. Dan Patrick.
At a rally in Houston earlier this month, President Donald Trump called on Texans to back Paxton, who has received kind words from the president before. And on a phone call with grassroots supporters last month, Patrick listed Paxton’s race as one of three competitive enough to merit voters’ attention.
Paxton appeared Sunday evening at a rally for U.S. Sen. Ted Cruz, R-Texas, in the attorney general’s backyard of Collin County. Speaking before Cruz, Paxton did not talk about his race but cast the stakes for Republicans on Tuesday in sweeping terms.
“If we don’t save Texas in the next two days,” Paxton said, “we could lose America.”
Even if Paxton isn’t in serious danger of losing his seat, the last-minute efforts are a way of avoiding an embarrassing single-digit victory.
“From the Republican perspective, you don’t want to present any type of weakness. You want to destroy Democrats’ hope and optimism, you don’t want to fuel Democrats’ hope and optimism,” Jones said. “One way to fuel them is through Justin Nelson getting within 5 or 6 points of Ken Paxton.”
Disclosure: Rice University has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.