AUSTIN, Texas — To hear Republican Texas Attorney General Ken Paxton tell it, the threat of voter fraud in his state is clear: Look no further than the “sheer number of prosecutions” and convictions his office has secured, particularly in the last year, to see the extent of the problem in his state, his office told House Democrats in a letter last week.
But a closer look at cases Paxton’s office resolved in 2018 reveals that the vast majority ended with the defendant in a prosecution diversion program — a clear signal, experts told HuffPost, that the cases were relatively minor.
By citing a large volume of cases, allegations and investigations, Paxton helps create the impression that the voter fraud problem in Texas is greater than the punishments imply. And his office is using that impression to justify giving the attorney general more resources to pursue these crimes — while lawmakers push to ramp up penalties for voting offenses and create stricter rules, and officials haphazardly go through voter rolls hunting for alleged noncitizens. Those efforts could intimidate lawful voters from casting ballots, particularly at a time when Hispanic voters are poised to become an even more important voting bloc in Texas, civil rights advocates argue.
The letter, which came as House Democrats investigate allegations of voter suppression in Texas, trumpeted one of Paxton’s favorite statistics. All told, the letter said, the Election Fraud Unit had “prosecuted 33 defendants for a total of 97 election fraud violations” in 2018. The investigations and prosecutions have “taught us that organized voter fraud is happening in our state,” Jeffrey Mateer, the first assistant attorney general, wrote in the letter.
In fact, all but three of the 33 cases Paxton’s office touted ended with the accused entering a prosecution diversion program, HuffPost found through a public records request to Paxton’s office. (Another 15 cases are pending, and there are 75 active election fraud investigations, according to the AG’s office.) The 30 defendants who ended up in diversion programs had a stipulation of guilt, but generally, people who participate in such programs avoid criminal consequences so long as they don’t reoffend.
“John and Jane Public are going to think, ‘Wow, the AG found all this crime afoot and these people are doing time,’ but they’re not.”
Prosecution diversions are typically used in cases where the accused doesn’t pose a major threat to public safety — maybe the offense is minor, the defendant is unlikely to reoffend, or the facts may not be sufficient for the government to win a case, experts told HuffPost. The fact that there are so many “de minimis” cases — meaning too minor to merit consideration or prosecution — suggests that the Texas AG “wanted the numbers,” David Iglesias, the former United States attorney in New Mexico, said.
“It’s a technical violation, but it’s misleading,” Iglesias added. “John and Jane Public are going to think, ‘Wow, the AG found all this crime afoot and these people are doing time,’ but they’re not.’”
The diversion program is “not intended to be punitive in nature,” Paxton’s spokeswoman said. Some of the factors the office looks at in determining the outcome of a case are the impact of fraud on an election, the criminal history of a defendant, the severity of the offense and the availability of prosecution resources, the spokeswoman confirmed.
It is “atypical” for an attorney general to have “near-universal use” of prosecution diversions surrounding an issue he has identified as a major threat to public order, said Chiraag Bains, a former Justice Department civil rights prosecutor now at the progressive organization Demos.
“You definitely get the feeling that they’re trying to run the numbers up — that they want to be able to say that there’s a lot of voter fraud out there,” he added.
Although prosecution diversions are an appropriate punishment for low-level offenses, Bains said, it’s not clear that the conduct the attorney general is targeting should merit the attention of the criminal justice system in the first place.
Paxton’s office defended its use of prosecution diversion agreements, arguing that it has used them out of “necessity” and because lawmakers requested educational programs that inform people who violate election law; based on a presumption that a better understanding of the law, coupled with the knowledge that election crimes are actually being investigated, will lead to greater compliance, Paxton’s spokeswoman said.
“Diversion programs indeed have a deterrent effect, but they must also be combined with prosecutions that yield consequential sentences in order to deter seasoned violators,” she added.
Beefing Up The Election Fraud Unit
Paxton has cited increasing allegations of voter fraud to argue his office needs more funding. In February 2018, he announced a “significant voter fraud initiative” that emphasized the threat to election integrity in Texas. His office recently asked lawmakers for 10 full-time employees and about $2 million for this unit. Texas lawmakers are also pushing a measure that would augment the AG’s power to go after individuals accused of organized election fraud, even if the person isn’t criminally liable. One bill, for example, would empower the attorney general to bring civil cases against people accused of this fraud — the standard of proof for a civil case is lower than it is for a criminal case. Another bill, civil rights groups say, would make it easier for prosecutors to go after voters who make “honest mistakes” because they don’t know the law.
Although the AG’s data shows that most of the cases resolved since February 2018 ended in diversion programs, Paxton’s press efforts and the April 11 letter don’t note that fact. Instead, they suggest something more sinister. Paxton’s office has focused on cases that are still pending, arrests, an unusually extreme case resolved in 2017 that Paxton’s office called “symptomatic of a broader trend,” and the three 2018 cases that ultimately did not result in prosecution diversions, a HuffPost review found. The cases that ended in diversions don’t appear to be mentioned independently — only as part of a larger statistic.
Paxton has raised false alarms about voter fraud before. In January, he blasted out data from the Texas secretary of state’s office suggesting there were nearly 100,000 noncitizens on the state’s voter rolls. Although Paxton immediately threatened to prosecute any noncitizen who had voted, it quickly became clear that the number of suspected noncitizens was inaccurate. A federal judge later ordered the state to instruct local officials not to cancel anyone’s voter registration based solely on the data.
What Happened In These Cases?
Because so many of the Texas cases were resolved through diversion agreements, there’s little public record of the circumstances or facts surrounding them, HuffPost found. That means it’s hard to say what exactly the defendants did and what impact Paxton’s efforts might have both on deterring crime — or potentially intimidating lawful voters.
Do you have knowledge of cases resolved through diversion agreements? Email email@example.com
Many of the cases Paxton has brought over the last year appear to involve mail-in ballots and applications for them. Voter fraud is exceedingly rare, but experts say mail-in ballots is one area susceptible to nefarious activity.
A number of cases also include a charge of “illegal voting” — an offense that could range from attempting to vote when someone knows they’re ineligible, knowingly voting more than once or marking someone else’s ballot. Oftentimes when someone votes and is not eligible to do so, it isn’t intentional, it’s because they’re confused about the law, Bains said.
“You have to ask the question: Should these cases even have been brought in the first place?”
More than half of the 33 cases that the attorney general resolved in 2018 were in Starr County, which is on the U.S.-Mexico border and more than 90 percent Hispanic.
“We take our cases as they are referred to us, the majority of them involving primary and local, nonpartisan elections,” said the spokeswoman for Paxton.
But the attorney general’s office has “chilled” Hispanic voting by mail in a specific area of Fort Worth, said Rep. Ramon Romero Jr., a Democrat who represents the area in the Texas House of Representatives. Romero said he visited several voters in 2016 who had received a visit from investigators with the Texas attorney general’s office inquiring about the assistance they had received with their absentee ballots. The voters told him they wouldn’t vote by mail again. In October of 2018, Paxton announced indictments against four people charged with illegally assisting people with absentee ballots in Tarrant County.
And some civil rights advocates wondered why the attorney general was focusing so much on these cases at all. “You have to ask the question: Should these cases even have been brought in the first place?” said Beth Stevens, the voting rights legal director with the Texas Civil Rights Project, which sued Texas officials over January’s voter purge. She called the high number of diversions “extraordinary.”
“We have an attorney general whose very clear goal is to prosecute these cases — as many of them as humanly possible — so that he can then use the notion of widespread, improper voting to then make it harder to vote,” she said.
“They announce that they’ve arrested or are going to arrest all these people who have committed voter fraud. And then, you know, two or three months later it goes away,” added Domingo Garcia, national president of the League of United Latin American Citizens.
“But the impact on the community both reinforces a false stereotype to conservative voters and has a chilling effect on minority voters about voting,” he said.