With state officials outraged over a decision cutting off the attorney general’s authority to prosecute election fraud cases, many are asking: “Can anything be done to reverse the decision?”
In an 8-1 ruling issued in December, the Court of Criminal Appeals—Texas’ highest court on criminal cases—struck down a 70-year-old law allowing the attorney general to prosecute election fraud cases.
Attorney Gen. Ken Paxton and other critics have said the decision could be devastating for future elections in Texas, as election fraud could be tolerated by lenient urban district attorneys who even benefit from fraud schemes.
But is there anything that can be done at this point? Yes.
Paxton has petitioned the court for rehearing. Although petitions for rehearing are usually not granted, it is not unheard of. Courts of appeals have rehearing grant rates ranging from about 5 to 15 percent. Under the Rules of Appellate Procedure, the Court of Criminal Appeals could even rehear oral argument on the case and take a fresh look at the legal questions involved.
The court based its ruling on the separation of powers—the foundational principle that tasks assigned to the executive, legislative, and judicial branches must be kept separate and administered by different departments. Under that principle, the Legislature is not allowed to enforce laws and the executive is not allowed to operate its own courts, for instance.
The attorney general is in the executive branch, and county and district attorneys are identified as being part of the judicial branch and are primarily tasked with prosecuting criminal cases in their jurisdiction. Based on this arrangement, the court reasoned that the Legislature was not allowed to delegate what it concluded was a judicial-branch duty—prosecution— to an executive-branch official—the attorney general.
However, many state leaders have argued this analysis is superficial and in fact ignores the true principles behind separation of powers. They argue that prosecution simply isn’t a judicial branch duty, but is rather a natural fit for the executive branch, which is called on to enforce the laws. It is the principle of separation of powers that ensures that the judicial branch concerns itself with impartially judging cases, not prosecuting those cases.
The next step is in the hands of the nine judges on the Court of Criminal Appeals. Will they stick by their decision despite the criticism, controversy, and practical effects? Or will they vote to reopen the case and take a fresh look at the important constitutional issues involved?