Only recently, with the General Election of 2020, did it seem like the debate over election integrity finally reached the public sphere. Even then, the skeptics and naysayers still far outnumber those of us who have seen it firsthand—and are willing to talk about it. Election fraud, stolen elections and vote harvesting are all lumped into “the Big Lie,” with a lot of effort going into discrediting anyone who even attempts to publicly discuss it.
Despite Attorney General Ken Paxton’s extensive efforts to combat wide-spread election fraud, I was one of only three prosecutors in the Election Integrity Division, and we were tasked with responding to allegations of election fraud across all 254 counties in the State of Texas.
We simply did not have the manpower to pursue every single allegation and were often forced to limit most of our prosecutions to areas with district attorneys who would be amendable to allowing us to prosecute which—maybe unsurprisingly—did not include counties with some of the largest cities in Texas: San Antonio, Houston, Dallas, or Austin.
The pandemic did not make our job any easier. During the pandemic, most courts in Texas were closed completely. Several districts where our cases were pending would not hear anything more than an uncontested case, much less a criminal jury trial.
Like every other prosecutor’s office in the state during that time, we dealt with the possibility of charges being dismissed after cases had languished for years. Several victims were elderly, so some cases even had to be dismissed due to witnesses passing away from natural causes or the COVID-19 virus itself. For other cases we had to take plea deals we might not have considered previously.
That was also before the infamous Texas Court of Criminal Appeal’s decision in State v. Stephens issued in December 2021. In Stephens, the Court concluded that prosecution was a function solely contained within the Judicial Branch (i.e., not the Attorney General’s Office). The impact of this decision was that our division was stripped of its independent authority to prosecute election fraud offenses, and the only remedy provided by the Court for our pending cases was a complete dismissal of the indictment against the defendant.
For every case our office had brought utilizing its statutory authority—even in cases where we were prosecuting upon a request by the district attorney—defendants began filing motions to dismiss based on the decision in Stephens. Our office legally had to notify judges and district attorneys across Texas to inform them that our office had been disqualified from prosecuting our cases.
Further complicating matters, many local district attorneys had conflicts of interest in election cases, preventing their office from taking the case themselves. Those didn’t suddenly disappear with the court’s decision.
To put it bluntly, the Stephens decision left no one else to prosecute these cases, and no way to revive them.
Several election fraud cases that waited years for trial were dismissed, and defendants indicted by duly empaneled grand juries for election fraud offenses received the very unexpected windfall of being able to avoid trial altogether.
What independent authority the Election Integrity Division once possessed was reduced solely to being able to prosecute cases in which we had been directly requested in a motion by the district attorney, which had been granted by a district court judge.
In the eyes of the Stephens court, the sole responsibility of ensuring election integrity rests with the judiciary, who also happen to be elected officials and subject to the law themselves.
That is not to say that a district attorney would not prosecute cases solely out of personal interest, although I believe that at least one instance of this will be an inevitable result of the Stephens decision.
Rather, district Attorney’s offices are busy, and in my experience, a lot of them did not have the manpower, expertise, or the interest, to pursue allegations of election fraud, or go through the public scrutiny if they tried.
The Stephens decision also overlooked the human element that was a concern when the law granting this authority to the attorney general was initially passed in 1951. As stated by then-Texas Gov. Allan Shivers, “Because of our present antiquated system, our local law enforcement officials have been unable to cope with problems arising out of our elections.”
The dynamic lamented by Gov. Shivers was never more apparent than in one case in central Texas where the defendant was a judge. The local district attorney, who had requested assistance in other types of cases, was hesitant to appoint our office to prosecute allegations of vote harvesting on the basis that if the judge was acquitted, he might retaliate against the district attorney for his mere act of recusing his office from the case and thereby “stepping aside” to allow the attorney general’s Office to prosecute.
The Stephens decision put that district attorney, and everyone like him, in a difficult position to navigate.
Other district attorney’s offices simply have no interest in prosecuting election integrity offenses at all. In fact, the Harris County District Attorney’s Office (one of six offices who filed briefs in favor of the taking independent prosecutorial authority away from the attorney general) has even used their non-enforcement of election laws as a basis to claim immunity in lawsuits seeking to overturn the Texas Election Integrity Act.
Given that members of the media and many of those in public office seem to be content to ignore the danger election fraud poses, and until prosecution of election fraud becomes more common, they will likely not have to reconsider their position any time soon.
As stated by the Honorable Chuck Devore, “It doesn’t matter how strong Texas’s Election laws are until someone enforces them.”