The Court of Criminal Appeals again held that Atty. Gen. Ken Paxton’s (R) office has no authority to prosecute Election Code crimes when it denied his motion for rehearing. In December, the court struck down a new law enabling Paxton’s office to prosecute election law cases without the consent of the local district attorney, who has jurisdiction over such prosecutions.

Paxton tweeted the timing of the all-Republican court’s decision “is no accident – this is devastating for the integrity of our upcoming elections.”

The ruling came without further explanation. Judge Scott Walker (R) filed a concurring opinion. Two judges – Michelle Slaughter (R) and Kevin Yeary (R) – issued dissents.

Walker wrote “one of the possible ramifications” of giving Paxton’s office the power to prosecute election crimes would give any future AG “the unfettered power … to bring possibly fabricated criminal charges against every candidate running for public office in the State of Texas who disagrees with the attorney general’s political ideals.” Further, Walker reasoned, the power to prosecute crimes constitutionally resides solely within the judicial branch of government. “As a part of the executive department, the attorney general cannot exercise a power – prosecuting crimes – that belongs to the judicial branch.”

Yeary, who dissented on the December ruling, argued that prosecution of crimes was “actually an executive department authority, delegated properly to county and district attorneys under the exception clause to the separation of powers provision.” In Yeary’s view, local prosecutors have the duty to prosecute but not the exclusive power of prosecution.

Slaughter expressed a much narrower vision to find Sec. 273.021, Election Code “constitutional is some circumstances” and would thus support a rehearing.

Pointedly, she noted that Paxton and others “through briefs and by other actions, have spurred hundreds, if not thousands, of individuals from across this state and other states to engage in attempts at impermissible ex parte communications with the Court.” Slaughter wrote these parties “ask (and in several cases demand), in the name of public policy, that we violate our oath to uphold and defend the Texas Constitution, but bowing to current public clamor and overruling the will of the people expressed in the Constitution is the antithesis of our job.”

GOV (Likely R): Yesterday (Tues.), we noted two polls showed very different results among Hispanic/Latino voters for governor. An Emerson Coll. poll showed Gov. Greg Abbott (R) leading Democratic challenger Beto O’Rourke, 46%-41%. A Telemundo poll specifically geared toward Hispanic/Latino voters found O’Rourke leading, 54%-31%.

A new poll from Quinnipiac Univ., released today (Wed.), shows O’Rourke with a razor thin 49%-48% lead among Hispanic/Latino voters. Abbott leads overall, 53%-46%, including among independents by the same margin. Abbott leads among White voters, 64%-35%, including by a 73%-27% margin among White men.

The Quinnipiac poll found an ever higher percentage – 96% – of likely voters have their “mind[s] made up” about who they will vote for. Recent polls asking the question have found the percentage closer to 90%.

Interestingly, three quarters of respondents who said they would vote on election day plan to vote for Abbott. O’Rourke leads among in person early voters (53%-46%) and absentee voters (64%-36%). These numbers suggest that O’Rourke’s early voting share will represent his high-water mark against Abbott.

Abbott is just above water in terms of favorability (50/47) but still better off than O’Rourke (44/50). Independents are about evenly split on Abbott (48/47) but on balance a bit sour on O’Rourke (41/49). O’Rourke fares better among Hispanic/Latino voters (52/44) than Abbott (46/51).

Electoral Count Act: U.S. Sen. Ted Cruz (R) was the lone nay vote in a Senate committee considering a bipartisan bill that Senate Minority Leader Mitch McConnell (R-Ky.) said would “clarify and streamline the process” of counting electoral votes. A similar bill passed the House with no Texas Republicans supporting it. As it passed the Senate committee, the bill would require one fifth of each house object to a state’s slate of electors before debate on it could begin. Current law requires a single objector in each chamber.

Brazos County: The Commissioners Court declined to reinstate an early voting location on the Texas A&M Univ. campus.

©2022 Texas Election Source LLC