Texas AG Ken Paxton’s election crime cases face dismissal after ruling

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DEVINE — In this small town of a few thousand people southwest of San Antonio, Tomas Ramirez III spent a decadeslong law career walking his clients through an array of legal procedures — indictments, arrests, arraignments — as they collectively faced a range of criminal charges.

Ramirez never imagined he’d get entangled in the same criminal justice system he helped his clients navigate. Until a sergeant investigator in the Texas attorney general’s office called him in February 2021.

The state official told Ramirez, who by then was a justice of the peace in Medina County, that Republican Attorney General Ken Paxton’s office was pursuing criminal election fraud charges against him. An indictment accused Ramirez of illegally possessing absentee ballots of 17 voters during the 2018 GOP primary in which he toppled a Republican incumbent by nearly 100 votes. Three others were also accused in the case.

Ramirez said he never had any voter’s absentee ballots. The indictment did not explain how the alleged scheme worked or the role Ramirez was accused of playing. Ramirez, who denies committing any election crime, said the alleged scheme was never explained. The attorney general’s office did not respond to questions about how it alleges Ramirez harvested votes.

To Ramirez, the indictment was ludicrous.

“Nobody runs a ballot harvesting operation for 17 votes. Seventeen-hundred votes? OK, I get it. Maybe even 200 votes, but 17? Give me a break. You know, that’s just stupid,” Ramirez said in a recent interview. “There’s no way I’m gonna gamble away my ability to support my family to win 17 votes.”

Paxton’s office has not responded to requests for comment for this story.

The case was among roughly 100 election-related criminal cases that Paxton’s office has pursued in the past five years as part of a crusade to defend voter integrity. Election fraud remains extremely rare in Texas, and Paxton has been heavily criticized for making false accusations about the 2020 presidential election.

Paxton has vocally and publicly touted the scores of investigations and criminal charges, pointing to them as evidence that Texans are trying to illegally determine the outcome of elections. His office’s election integrity unit tracks the number of charges that have been successfully prosecuted, the number of pending charges and the number of active investigations in the state. Paxton has mentioned the figures in numerous speeches and news releases.

“Many continue to claim that there’s no such thing as election fraud. We’ve always known that such a claim is false and misleading, and today we have additional hard evidence,” Paxton said in a statement announcing the arrest of a woman a month before Ramirez was indicted. “I am fiercely committed to ensuring the voting process is secure and fair throughout the state, and my office is prepared to assist any Texas county in combating this insidious, un-American form of fraud.”

But behind the scenes, several of the cases have quietly unraveled because the state’s highest criminal court ruled that the Texas Constitution’s balance of powers forbids the attorney general — an elected member of the executive branch — to unilaterally pursue criminal charges that wend through the judicial system.

“The unconstitutional use of the AG’s power has upended the life of Texans by subjecting them to needless arrest, the trauma of jail time, lost time at work and with their families,” said Savannah Kumar, an attorney at the ACLU of Texas. “The attorney general’s job is to facilitate voting, not squash the energy of current and potential voters.”

Ramirez is among at least seven people — collectively accused of committing 152 offenses of election fraud — whose cases have been dismissed or are awaiting dismissal due to the recent court finding, according to records from Paxton’s office.

Yet that gives Ramirez little sense of vindication. Ever since that February 2021 phone call — and despite the legal barriers that Paxton’s office faces — the state’s lawyers have tried numerous ways to ensure Ramirez is prosecuted. And even though he hasn’t been convicted, Ramirez says much damage has already been done.

Rallying around election-fraud myths

Since 2005, the attorney general’s office has successfully prosecuted 155 individuals for election fraud. That includes crimes in which people were convicted of voting illegally, forging signatures and voting as a noncitizen. For reference, approximately 8.1 million Texans voted in November’s midterm elections, according to the secretary of state’s office.

Paxton is among top Republicans nationally and in Texas who have stoked election-fraud myths for years. Amid Paxton’s campaign to prosecute Texans for voting crimes, his office screened the movie “2000 Mules,” a film by GOP political operative Dinesh D’Souza that falsely claims there was significant voter fraud during the 2020 presidential election — assertions that have been debunked.

The attorney general himself delivered a speech at the Jan. 6 pro-Donald Trump rally in Washington, D.C., that devolved into a siege of the Capitol as Trump supporters interrupted the certification of Joe Biden’s electoral victory. Paxton also filed a lawsuit challenging the results of the 2020 election in an effort to have them overturned, but the U.S. Supreme Court quickly rejected the case.

“Our job is to make sure that the Constitution is followed and that every vote counts,” Paxton said when the lawsuit was filed. “In this case I am not sure every vote was counted, not in the right way.”

His assertions in the lawsuit — aimed at the outcomes in four battleground states — drew widespread condemnation. In response to Paxton’s failed attempt to use the courts to overturn Biden’s win, the Texas state bar filed a professional misconduct lawsuit against the attorney general. It accuses Paxton of making “dishonest” representations and failing to disclose that some of his allegations had already been adjudicated or dismissed in courts.

Paxton denounced the lawsuit and banned lawyers in his office from speaking at any events organized by the State Bar of Texas.

“A lot of elected officials in this state have decided that they can make political gain by spreading conspiracy theories about elections,” said James Slattery of the Texas Civil Rights Project. “The sky hasn’t fallen, right? There hasn’t been any surge in illegal voting that’s been documented.”

Former Texas Secretary of State John Scott, the state’s top election official who once represented former President Donald Trump in one of the suits challenging the 2020 election, has said Texas’ elections were secure and safe. In a report released in December, his office found some “irregularities” but also reinforced a message election experts have repeatedly sent: There was no widespread fraud in the 2020 election, and Texas voters can be confident that elections here are secure.

It was in this larger political environment that Ramirez was told he was an alleged criminal accused of stealing votes. The day the attorney general’s office told him about the indictment, he turned himself in to Bandera County authorities, was released on a personal recognizance bond, hired lawyers and began an 18-month odyssey to clear his name.

A matter of waiting

Meanwhile, another case of election fraud was working its way through state courts. Paxton’s office was pursuing charges against Jefferson County Sheriff Zena Stephens, the first Black woman to be elected sheriff in Texas.

Paxton successfully sought an indictment against Stephens after the county district attorney declined to prosecute her over campaign-finance allegations. She was accused of tampering with a government record and accepting cash contributions greater than $100 during the 2016 election. Stephens had appealed the case to the Texas Court of Criminal Appeals, the state’s highest criminal court, challenging the attorney general’s authority to pursue the case.

In December 2021, the all-Republican Court of Criminal Appeals sided with Stephens in an 8-1 ruling: The attorney general did not have the authority to unilaterally prosecute election crimes unless asked to get involved by a district or county attorney.

Six days after the ruling, a district judge in Bandera County also dismissed Ramirez’s indictment.

“That should have been the end of it,” Ramirez said. “But it wasn’t.”

Paxton asked the Court of Criminal Appeals to reconsider its opinion — and kept pursuing cases of election fraud.

Ramirez would soon learn that the state’s lawyers had gone to the district attorney in nearby Hondo, which is in Medina County and not Bandera, to charge the judge there with the same exact allegations.

“It was about a week later that we found out about it, and we were shocked. We had no clue,” Ramirez said. “I told my lawyers about it and they went, ‘What?’”

The paperwork looked identical to the indictment that had just been tossed, but it was not yet an indictment, Ramirez said; all that had been filed was a legal complaint and information, documents that precede an indictment. Ramirez’s lawyers tried to get those dismissed on the grounds that the statute of limitations, which is three years from the day an election crime allegedly occurred, had already passed.

The allegations involved a primary election that at that point had been held almost four years prior.

A second district judge, this time in Hondo, heard the case for about two hours before dismissing the complaint and information, Ramirez recounted.

“That was Thursday, January 6. And by noon on that day, there were no charges pending against me anywhere,” he said. “I was free.”

But that freedom lasted less than a day.

The next morning, a grand jury in Medina County indicted Ramirez on the same charges that had already been dismissed twice by two different judges, according to a copy of the indictment he shared.

In March 2022, more than a year since the first indictment, a judge told the parties that the case should be dismissed, considering the recent rulings in the Stephens case. But since Paxton’s office had asked for a rehearing before the Court of Criminal Appeals, the judge wrote in a notice that the court would dismiss the indictment once the higher civil court issued its next mandate, assuming it did not change much from its earlier one.

For Ramirez, it again became a matter of waiting.

“The remedy is a constitutional amendment”

Nine judges sit on the Court of Criminal Appeals, each elected to the seat. Currently all nine are Republican. Eight of them concurred in December 2021 that the attorney general’s office could not unilaterally pursue criminal cases.

In September, after reconsidering the matter at Paxton’s request, the court issued its second ruling. A majority of judges maintained the attorney general’s office could not pursue criminal cases like voter fraud without consent from local prosecutors. Doing otherwise would violate the state constitution’s separation of powers.

After that ruling, the high-profile case against Hervis Rogers, who was accused of voter fraud after waiting six hours to vote during the March 2020 presidential primary while on parole, was among four cases that have also been dismissed.

Only one judge on the Court of Criminal Appeals shifted to dissenting in the second ruling, which was a 7-2 decision.

“If citizens do not like that the Texas Constitution gave specific powers to the Attorney General and that these powers do not include the power to unilaterally prosecute crimes, the remedy is a constitutional amendment—something the legislature could propose and the citizens could vote to ratify,” Judge Scott Walker wrote in a concurring opinion. “The remedy is not for the courts to water down the Texas Constitution from the bench. To do so would be a violation of our judicial oath.”

Lawmakers are responding with legislative attempts to give Paxton’s office more authority to prosecute crimes.

One bill filed in the Texas House would allow the office to appoint a special prosecutor for election crimes, and another would let the office penalize local prosecutors who “limit election law enforcement.”

But some of the efforts to grant the attorney general’s office more authority could raise the same questions of constitutionality from the Stephens case, said Kumar, the attorney at the ACLU of Texas. Changing the state constitution, as the criminal appeals court ruling suggested, would require not just legislative approval, but a signoff from Texas voters.

The lawmakers pushing the proposals contend the bills would further secure the state’s elections. The bills come nearly two years after lawmakers passed sweeping legislation that tightened state election laws and constrained local control of elections by limiting counties’ ability to expand voting options.

Other bills now being considered would prohibit polling locations on college campuses, and another would reestablish illegal voting as a felony, which is a priority of Lt. Gov. Dan Patrick.

“Throughout Texas’ history, there’s been an effort to make voting harder and scarier for groups of people that the people in power don’t like,” said Slattery of the Texas Civil Rights Project, pointing to Reconstruction and Jim Crow laws. “That pattern has continued unabated to this day.”

Despite the efforts and attention, voter fraud is still not widespread.

As for Ramirez, days after the Court of Criminal Appeals’ order in September, a Medina County judge dismissed the third indictment against him.

By then, Ramirez had been receiving fewer calls at his law office. The governing body that oversees judges had prohibited him from sitting on the bench while the matter was pending. He and his family had received threats at home.

He’s now back in his elected role as a justice of the peace. And while the legal clouds seem to have cleared, the ordeal has taken a toll.

“It obviously was a huge relief the first time I got dismissed, the second time I got dismissed and the third time I got dismissed,” he said. “But it’s still a year and a half, probably 19 months, of my life that [I] honestly wish I didn’t have to go through.”

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