Complaint filed over Texas AG Ken Paxton's tactics to limit mail-in voting

Texas Attorney General Ken Paxton REUTERS/Bill Clark

Two Dallas men have accused Texas Attorney General Ken Paxton of felony election fraud, and on Monday formally asked the Dallas County district attorney's office to investigate a tweet and a letter Paxton sent regarding which Texans are eligible to cast mail-in ballots in upcoming elections.

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The Dallas County district attorney's office confirmed Tuesday that they received the complaint.

Kendall Scudder, a small businessman who ran as a Democrat for a Texas Senate seat in 2018, and Dallas lawyer Woot Lervisit contend that Paxton knowingly misled county election officials and the public. In a May 1 letter, Paxton told local election officials that eligibility for absentee voting has not been expanded and that voters can't legally ask for absentee ballots because they fear contracting coronavirus if they vote in person.

Paxton’s claim was at odds with a state court ruling by Travis County District Judge Tim Sulak who found last month that voters who lack immunity to the new coronavirus can qualify for a mail-in ballot under a provision of the Texas election code that allows for absentee voting based on a disability. In his letter, Paxton indicated that ruling was put on hold when his office appealed it.

Expanding access to mail-in ballots during the coronavirus epidemic has emerged as a top priority for Democrats and voting rights activists in Texas as July primary runoffs approach, and the November election looms on the horizon. Republican leaders and the state GOP have opposed expanding mail-in voting to address public health concerns.

Federal and state lawsuits are now underway attempting to establish that lack of immunity to coronavirus qualifies as a disability under state election law. Such a ruling could greatly expand the number of Texans who can request absentee ballots that they can fill out at home and mail in.

As part of the state's ongoing appeal of the lower court ruling, Paxton on Monday asked the 14th Court of Appeals to uphold his interpretation that the Texas Election Code doesn't allow fear of coronavirus to count as a disability, and argued that existing limitations to voting by mail are meant to prevent fraud.

Sulak's issued his order after hearing testimony from a local doctor and epidemiologist that in-person voting would put voters at risk of transmitting the virus. As the court hearing was ending Paxton released an “informal letter of advice” setting the stage for what is expected to be a lengthy court battle over expanding voting by mail for the upcoming runoff and November elections.

In his May 1 letter to local election officials, Paxton said Sulak's ruling did “not change or suspend” the state’s eligibility requirements and raised the prospect that “third parties” could face criminal sanctions if they advise voters who typically do not qualify for a mail-in ballot to request one.

Days after Paxton issued his letter, civic organizations and state Democrats that sued to expand voting by mail during the pandemic asked an appeals court for emergency relief, citing the attorney general's letter as a "striking assertion of unbridled executive power” and arguing Paxton was “acting in open defiance” of the lower court ruling.

In their complaint, Scudder and Lervisit say that through his statements Paxton knowingly lied to election officials, misled voters about their eligibility to cast mail-in-ballots and disseminated fear. Citing a section of the Texas Election Code, the men say Dallas County District Attorney John Creuzot must launch a criminal investigation into Paxton.

“He knew exactly how the state judge ruled and he intentionally misled elections workers to ensure that millions of Texans could be denied access to a ballot,” Scudder said. “It is elections fraud, it is unacceptable and he should face the consequences of that.”

Scudder said Texans should be able to vote by mail “whenever they want,” but especially when in-person voting puts them at higher risk of contracting the coronavirus.

Marc Rylander, a spokesperson for the attorney general, called the complaint “an outrageous effort by those who would mislead the public about Texas voting law in order to advance their own political agenda.”

“In fulfilling its responsibility under the Constitution and laws of Texas, the Office of Attorney General will continue to safeguard the integrity of Texas elections by providing clear guidance to election officials and the public about the textually correct meaning of Texas election law.”