The Texas legislature has several bills on its docket that would increase penalties for voter fraud and give the state more tools to enforce election laws. But as we see in urban areas around the nation where left-wing district attorneys refuse to enforce laws against assault or thievery, the law matters little if it’s not enforced.
Here’s an analogy I like to use: For 12 years, I’ve lived about 25 miles outside Austin. About half of the cars outside my house clearly travel far faster than the posted 25 mph speed limit. But there’s never been a speeding ticket issued as law enforcement never enforces the speed limit. Since there’s never been a speeding ticket issued, there’s clearly no speeding problem in my neighborhood.
The same principle is at work when it comes to election fraud. Very little in the way of law enforcement assets has been dedicated to punishing election crimes in Texas, and you generally don’t find what you don’t look for.
In 2005, the office of the Texas attorney general only had a part-time prosecutor pursuing election fraud cases. About 13 years ago, this was boosted to one full-time prosecutor with supporting investigatory staff. But in the aftermath of Hurricane Harvey in 2017, this one prosecutor was redirected to focus on price gouging crimes. By 2018, with rising concerns over election integrity, the legislature and AG’s office agreed to increase the resources dedicated to ensuring clean elections, with the number of prosecutors boosted to three backed up by as many as 14 investigators. The intended goal was to put five prosecutors on election integrity enforcement by 2020, but the goal was never reached.
About half of the people convicted of 534 separate election fraud counts in Texas from 2005 to early 2021 were in trouble for mail-in ballot fraud, also known as ballot trafficking. By June 29, 2021, the Texas AG’s office had 510 pending election fraud offenses against 43 individuals, with another 386 active investigations.
The pace of successful prosecutions for election fraud could be linked to the number of prosecutors like a mathematical formula, with each full-time prosecutor able to bring a conviction every two months. Due to the complexity of most election fraud cases, convictions would typically be won some 18 months to two years after the crime. Most election crimes are, in effect, victimless in that the victim — a voter, a candidate, or voters at large — don’t typically know of election fraud perpetrated against them.
Unfortunately, as Texas, a state with 30 million people and 17.1 million registered voters, made do with only three election crimes prosecutors plus a county DA joining in from time to time, even that modest deterrent against fraud at the polls was taken apart by a ruling from the state’s Court of Criminal Appeals in December 2021.
The Stephens case arose from the AG’s prosecution of Zena Collins Stephens, who was elected sheriff of Jefferson County in 2016. But the FBI uncovered evidence of what appeared to be campaign finance violations, turning the evidence over to the Texas Rangers. The Rangers took their findings to the Jefferson County DA — but, unsurprisingly, the DA refused to act on the sheriff, a colleague in county government. The AG picked up the case and sought indictment via a grand jury in a neighboring county. But Stephens’ attorney moved to quash the indictment, “arguing the Attorney General did not have authority to prosecute a violation of the Penal Code.” The Court of Criminal Appeals agreed, ruling that the AG has no power to press criminal prosecutions.
The Texas Constitution is a bit of an outlier, with prosecutors placed in the judicial branch, not the executive. Further, Texas has dual high courts: a Supreme Court that handles constitutional and civil questions, and a Court of Criminal Appeals, which is the court of last resort for all criminal matters.
The Stephens ruling determined that the Texas AG, an executive branch official, could not prosecute any criminal cases — regardless of statutes passed into law to the contrary.
Thus, in one major ruling, the Texas Court of Criminal Appeals dissolved the Texas attorney general’s election fraud division. The lead attorney for that division now works prosecuting Medicaid fraud. As a result, where once there were active cases against 43 people accused of 510 counts of election fraud and another 30 or so being investigated for election crimes, today it appears there are no more than five cases being pursued statewide.
This collapse in activity against election fraud doesn’t suggest election fraud has suddenly declined by more than 90 percent — after all, you don’t find what you aren’t looking for — rather, it suggests a vulnerability in our election integrity safeguards due to two factors.
The first is something seen in America at least since Aaron Burr turned a New York social club known as Tammany Hall into a formidable political machine to help elect Thomas Jefferson in the election of 1800. Tammany Hall remained a political powerhouse for the next 130 years, with attempts to rein in its election fraud-abetted power hampered by the fact that local law enforcement officials were controlled by the Tammany machinery. Today, local county DAs, whether elected through the assistance of corrupt fixers or not, can be reluctant to antagonize powers that might decide to remove an uncooperative DA from office.
The second challenge is one of expertise and priority. It takes a degree of specialization to successfully prosecute election fraud cases. Further, many DA offices are rightly focused on more serious offenses, such as murder, assault, and robbery, that have a direct bearing on public safety. Creating an election fraud unit is not generally seen as a good use of scarce county resources, though officials in Tarrant County sought to do so, generating a fair degree of criticism.
The Texas legislature is in its biennial session through the end of May. The Texas State Senate just passed SB 1195 on to the House in an effort to force the courts to revisit the Stephens decision. Short of amending the state Constitution, this effort may fail.
The Texas Constitution does offer a different path for lawmakers concerned with the enforcement of election fraud. The legislature has the power to create court districts as needed, with each district consisting of an elected DA and an elected judge. Thus, the Texas legislature could create five districts representing different regions of the state and empower these courts to have jurisdiction over criminal violations of election law, thus providing the specialization needed while minimizing the possibility of capture of such offices by local political machines adept at winning local elections through less than honest means.
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