Analysis: Ken Paxton, Texas’ top lawyer, plays for an audience of one
The attorney general’s challenge to the election results in four other states baffles many lawyers, but President Donald Trump likes it.
Editor's note: If you'd like an email notice whenever we publish Ross Ramsey's column, click here.
If you would like to listen to the column, just click on the play button below.
Texans are learning that the state’s attorney general isn’t a very good lawyer.
Ken Paxton sued four other states this week, asking the U.S. Supreme Court to toss the Electoral College votes from Georgia, Michigan, Pennsylvania and Wisconsin because of the election changes they made in response to the pandemic.
All four states voted for Joe Biden. If their 62 Electoral College votes went the other way, Donald Trump would get a second term as president.
Maybe this was supposed to have the effect of challenging other states’ results. Maybe it’s just a political shot across the bow to support the president’s unfounded contention that he didn’t lose an election in which he got 7.1 million fewer votes than the other guy. Maybe it’s a Paxton bid for a preemptive pardon, given that the FBI is investigating the attorney general’s dealings with an Austin real estate investor and Paxton campaign contributor, according to the Associated Press.
The president clearly likes what Paxton is doing. “We will be INTERVENING in the Texas (plus many other states) case. This is the big one. Our Country needs a victory!” he tweeted Wednesday.
A presidential pardon wouldn’t apply to state charges, if any arise from these investigations. And it wouldn’t have any effect on a longstanding securities fraud indictment against Paxton under state law.
Paxton said this week that the changes in the four states he named potentially fouled the election and turned the results on their head. He offered no evidence that any fraud took place.
Paxton’s lawsuit was missing some pieces, as The Texas Tribune’s Emma Platoff pointed out in her story on the filing. The Republican attorney general said in the lawsuit that changes made to voting procedures in those states had the effect of “weakening ballot integrity” and resulted in voter fraud. But he didn’t detail any such fraud.
He also made no such allegations against Texas, where Gov. Greg Abbott modified election procedures without consulting the Legislature, like adding a week to early voting and citing the pandemic’s need for social distancing as justification.
The case was also missing a fact-checker. As retired legal reporter Lyle Denniston pointed out this week, Paxton wrote in his lawsuit that 72 Electoral College votes were at stake. For the record, Georgia and Michigan each have 16 votes, Pennsylvania has 20 and Wisconsin has 10. That’s 62 votes.
Details like that — mistakes in the filing and the absence of any evidence to back his allegations of voter fraud — are fuel for Paxton detractors in legal and political circles. They argue that his filing is more about fealty to the president than to the law, not to mention the Texas taxpayers funding Paxton’s charge at the windmill. The president might like it, but the criticism is deafening. Paxton was jeered by his peers in the states he sued.
Michigan Attorney General Dana Nessel, a Democrat, called it “a publicity stunt, not a serious legal pleading.”
Another Democrat, Wisconsin AG Josh Kaul, said, “I feel sorry for Texans that their tax dollars are being wasted on such a genuinely embarrassing lawsuit.”
A spokesperson for the Republican AG in Georgia, Chris Carr, said Paxton “is constitutionally, legally and factually wrong about Georgia.”
And Josh Shapiro, the Democratic attorney general of Pennsylvania, took to Twitter: “These continued attacks on our fair and free election system are beyond meritless, beyond reckless — they are a scheme by the President of the United States and some in the Republican party to disregard the will of the people — and name their own victors.”
Paxton’s suit raised other questions. It didn’t include the signature of Solicitor General Kyle Hawkins, the Paxton assistant whose job it is to argue cases before the Supreme Court. Paxton signed it, as did his new first assistant attorney general, Brent Webster.
Webster got that job after a group of Paxton’s top deputies blew the whistle on the attorney general, accusing him of bribery and of abuse of office in his dealings with a real estate investor and campaign contributor named Nate Paul. They made those allegations in a letter to the agency, and to federal and state law enforcement. Each of those agency executives subsequently quit, was put on leave or was fired, and four of them have filed a lawsuit alleging they were punished in retribution for ratting out their boss.
The FBI is investigating those allegations, according to the Associated Press, and that tidbit is fueling rumors that the attorney general wants to please the president, who has a few weeks of pardoning power left.
Or, if Paxton’s long shot succeeds, four more years.
Quality journalism doesn't come free
Perhaps it goes without saying — but producing quality journalism isn't cheap. At a time when newsroom resources and revenue across the country are declining, The Texas Tribune remains committed to sustaining our mission: creating a more engaged and informed Texas with every story we cover, every event we convene and every newsletter we send. As a nonprofit newsroom, we rely on members to help keep our stories free and our events open to the public. Do you value our journalism? Show us with your support.Yes, I'll donate today