San Antonio Express-News (Sunday)
Much smoke, little fire on voter fraud
AUSTIN — The Texas attorney general’s office spent nearly twice as much time working on voter fraud cases this year as it did in 2018, logging more than 22,000 staff hours, yet resolved just 16 prosecutions — half as many as two years ago, records show.
All 16 cases involved Harris County residents who gave false addresses on their voter registration forms. None of them received any jail time.
Attorney General Ken Paxton, who has made the hunt for voter fraud a top priority, between January and October gave the election integrity unit access to eight additional law enforcement sergeants on top of the nine already assigned to it.
Also, he doubled the number of prosecutors to four, according to records obtained by nonprofit government watchdog American Oversight and shared with Hearst Newspapers.
In its 15 years of existence, the unit has prosecuted a few dozen cases in which offenders received jail time, none of them involving widespread fraud.
Paxton’s approach to the issue is the same as that of other top Texas Republicans — including Lt. Gov. Dan Patrick and Gov. Greg Abbott, who earlier this month backed the attorney general’s last-ditch election suit at the Supreme Court challenging President-elect Joe Biden’s win in four battleground states.
That approach is to relentlessly insist voter fraud is a major concern, while citing no evidence it’s prevalent.
As President Donald Trump claimed that the election was stolen from him in early November, Patrick went so far as to offer a $1 million reward for tips leading to voter fraud convictions anywhere in the country.
The low number of prosecutions resolved this year in contrast with the hours worked shines light on a core disagreement between Paxton and voting rights advocates: Is the low prosecution rate a cause or effect? Does it signify that few cases exist or that more resources are needed to find the cases presumed to be lurking undetected?
Paxton didn't respond to a request for comment for this report, but in a taped interview with the conservative-leaning Texas Public Policy Foundation in September, he explained why he believes the number of cases does not represent the scope of the issue.
“It just takes a lot of effort to take it through the entire process. So you're never going to see thousands of cases coming out of anoffice that has three prosecutors, and we probably have more than most states,” Paxton said. “It's limited to what we can do, but we try to send the message with what we do and the fact that we're investigating well over 100 cases right now, that we take this seriously, and we're going to do our best. You may be the unfortunate one we catch."
University of Texas election law Professor Joseph Fishkin said there could be another explanation.
“This is not the only voter fraud effort to pour in a lot of resources and end up with a relatively small number of cases found,” Fishkin said, referring to the Trump administration's
voting integrity commission, which disbanded in 2018 after finding no evidence of widespread voter fraud. “Finding very few defendants, even if they can charge some with multiple offenses, is consistent with the possibility that there just isn't that much fraud to prosecute.”
Multiple academic studies and journalistic reviews also have uncovered no evidence of widespread voter fraud. Nor did a wide-ranging investigation of election fraud conducted by the U.S. Justice Department in the 2020 elections.
Before he resigned this month, former Attorney General William Barr acknowledged investigators had “not seen fraud on a scale that could have effected a different outcome in the election.”
Success measurement
Paxton's office gauges productivity not in terms of the number of defendants, but rather the number of offenses with which they are charged, spokeswoman Kayleigh Date said.
Still, the office's production in 2020 declined by that metric as well. The number of charges has dipped by 28 percent since the midterm election year, going from 86 charges then to 62 this year.
Date added that the office's election fraud unit has more than 360 offenses pending in court and more than 230 ongoing investigations.
Salary records show the chief of election fraud, Jonathan White, is paid about $140,000, a second attorney is paid $97,000 and the two other attorneys are paid about $85,000 each.
Myrna Pérez, director of the Brennan Center's Voting Rights and Elections Program, said investing in a program that has not uncovered widespread fraud speaks to Paxton's priorities.
“How many resources are they going to spend to try to put political wins on the board?” Pérez said. “No one is saying that there's never mistakes or that fraud never happens. People are saying it's extraordinarily rare; study after
study demonstrates that that's the case.”
Pérez added that the attorney general's office tends to try to make examples out of voters who made mistakes and isn't finding the organized election fraud that Paxton claims to be guarding against.
For example, Crystal Mason, 45, of Fort Worth, was sentenced to five years in prison for casting a provisional ballot in the 2016 presidential election — one that never was counted — while on supervised release for a federal conviction.
She has said she didn't know she was ineligible to vote. At the end of November, her lawyers filed a petition to the Texas Court of Criminal Appeals to review her case and acquit her of the illegal voting charge.
“Crystal Mason got more time than that ‘affluenza' kid,'” she said, referring to a Texas man who got no jail time after claiming in court that his wealthy upbringing clouded his sense of right and wrong during his trial for killing four people while driving drunk. “It's really hard to say who you're protecting people from.”
Another is Rosa Ortega, a Mexican-born woman and permanent resident with a green card who was sentenced to eight years in jail after being convicted of illegal voting by a non-citizen.
Like Mason, Ortega and her lawyers also have said it was an honest mistake. She's now on parole and facing deportation after serving nine months behind bars.
The attorney general's office also made news in November when it announced it had assisted the Limestone County sheriff and district attorney in charging Kelly Reagan Brunner, a social worker in the Mexia State Supported Living Center, with election fraud for submitting voter registration applications on the behalf of 67 residents
without their signature or effective consent.
If convicted, Brunner could face up to 10 years in prison.
A handful of other alleged fraud schemes also have come to light over the past year or so: In April 2019, Paxton's election fraud unit, in conjunction with the Hidalgo County district attorney's office, announced it filed charges against Edinburg Mayor Richard Molina and his wife, Dalia, for voter fraud in his mayoral election.
Molina is alleged to have coordinated with voters from outside the city, changing their addresses so they could vote for him.
In September, authorities arrested Gregg County Commissioner Shannon Brown and three others on charges in connection with an alleged scheme during the 2018 Democratic primary election.
They're accused of marking able-bodied voters as “disabled” to qualify them to vote by mail, mostly without the voters' knowledge or consent. Texas voters under 65 must have an excuse to vote by mail.
Most cases, however, don't end in jail time. As media outlets have reported over the years, the majority of voter fraud cases taken up by the office end in pretrial diversion or probation.
“There's not usually much punishment for it,” Paxton told KXANin September, after the outlet found just 24 of the 138 people convicted of voter fraud between 2004 and September 2020 ever spent time in jail. “But I think the good thing about finding it, and doing a thorough job of investigation and prosecution, is at least you send the message to people that if you're going to do this, there is some risk that you're going to end up in prison for committing voter fraud.”