Donald Trump tried to overturn at least three state elections in 2020. But liberal groups in North Carolina are trying to overturn or sidestep four separate elections in that state from 2018 and 2020. Unlike the U.S. Supreme Court in 2020, a filing last week suggests North Carolina’s Supreme Court is willing to entertain the political revanchists’ claims.
The scorched-earth politics at work are elaborate, so bear with us. The two elections immediately under fire are a 2018 state referendum capping North Carolina’s income tax at 7% and another referendum requiring photo identification for in-person voting in the state.
North Carolina’s constitutional amendment process requires a three-fifths majority of the Legislature to put a measure on the ballot, and then for the public to ratify it in a referendum. The Republican Legislature placed the tax and voting amendments on the ballot in 2018, and voters approved them by about 15 and 11 percentage points, respectively.
Liberal groups want to throw out those decisive outcomes, and their sweeping claim extends beyond the 2018 election. It’s that the entire Legislature of America’s ninth largest state was essentially illegitimate for the better part of a decade due to gerrymandering. Federal litigation forced North Carolina to redraw its 2011 legislative maps in 2017.
Therefore, the plaintiffs argue in NC NAACP v. Moore, the Republican Legislature should not have been able to put the measures on the ballot, rendering both of the voters’ verdicts void. A North Carolina lower-court judge agreed. But he was reversed by a state appellate court, which balked at the notion of retroactively stripping an elected Legislature of its powers and nullifying referenda, no matter the outcome of litigation over district boundaries.
The shenanigans don’t end there. The case is now before the seven-member North Carolina Supreme Court, which is closely divided along partisan lines. The three Republicans include Tamara Barringer and Phil Berger, who were elected in 2020. That’s where the next layer of electoral subversion comes in.
The plaintiffs this July filed a motion for the two justices elected in 2020 to be removed from the case. The pretext is that Justice Barringer served in the North Carolina state Legislature when the constitutional amendments were passed, and Justice Berger’s father is a GOP legislative leader and therefore named as a defendant as a stand-in for the state.
Yet the public and the press were well aware of this high-profile case and the justices’ backgrounds when they were elected in 2020. Past service as a legislator is not normally disqualifying from hearing cases related to legislation passed during that service, and removing a judge at a “court of last resort” requires a higher burden since that judge can’t be replaced.
One of the liberal justices, Anita Earls, litigated extensively against North Carolina’s 2011 maps before she was elected to the Supreme Court in 2018. Yet Justice Earls’ removal is not sought because a liberal majority to overturn the two constitutional amendments would depend on her vote.
Recusals at the U.S. Supreme Court are at the discretion of the Justice alone, and it might be expected that Justices Barringer and Berger would see through this political gambit. But last week the court’s liberal justices suggested that they might be considering an unprecedented effort to evict their conservative colleagues involuntarily—a stunning and destabilizing prospect.
The court delayed argument in the case and last Tuesday sent out an unusual order asking the parties a number of questions, including, “Does this Court have the authority to require the involuntary recusal of a justice who does not believe that self-recusal is appropriate?”
That suggests that Justices Barringer and Berger believe, rightly, that they do not need to recuse from the case, but at least some (perhaps a majority) of the other justices have been moved by the liberal pressure campaign to consider a vote to oust them.
It’s worth reviewing the radicalism of what may be transpiring. Democrats in North Carolina lost policy votes in 2018 around taxation and voting, and elections for the state’s highest court in 2020.
Now liberal interests are seeking to reverse their 2018 election defeats using the courts. It would be one thing to challenge policy through the normal judicial process. But because Democrats lost seats on the state Supreme Court in the 2020 elections, they want to effectively undo the impact of those elections on this case with a selective removal of justices.
What’s remarkable is that the advocates claim that their tactics in serially subverting the judgments of voters are somehow a defense of democracy. If successful, this institutional mischief will reverberate far beyond North Carolina.
As he seeks a third term, Paxton is being challenged by fellow Republicans George P. Bush, the land commissioner; Eva Guzman, a former state Supreme Court justice; and Matt Krause, a state representative from Fort Worth. Bush and Guzman have been running since June, while Krause entered the race last week, saying he did not think Bush or Guzman was capable of taking out the incumbent.
Differences among primary challengers
In her interview, Guzman took broader aim at Bush, not just raising the questions about his legal experience but also criticizing his office’s oversight of the Alamo and administration of recovery funds after Hurricane Harvey.
Grappling with Trump’s endorsement
A lawyer for Texas Attorney General Ken Paxton, arguing Wednesday before a state appeals court, insisted that Paxton cannot be sued by four former high-ranking officials who were fired after accusing him of accepting bribes and related crimes.
The Austin-based 3rd Court of Appeals will decide whether a whistleblower lawsuit by the former officials, who say they were improperly fired last year in retaliation for reporting the allegations, can move forward.
The Texas Whistleblower Act is intended to protect public employees from on-the-job retaliation after making a credible report of criminal acts to the appropriate investigators.
But Solicitor General Judd Stone II, Paxton’s top appellate lawyer, argued Wednesday that the lawsuit must be dismissed because Paxton is immune to complaints by whistleblowing employees.
“The Whistleblower Act waives immunity for claims based on reports regarding only public employees, appointed officials or an employing governmental entity. But the attorney general, Ken Paxton, is none of these,” Stone told the court. “He’s an elected official.”
State law does not allow whistleblower lawsuits against any elected official, from statewide leaders to school board members, Stone argued, adding that officials face other “powerful checks on misconduct,” including impeachment, unfavorable press reports and removal by voters.
A lawyer for the fired officials, Joseph Knight, urged the appeals court not to adopt such a “gaping exception,” arguing that exempting all elected officials from whistleblower lawsuits has never been recognized since the Whistleblower Act became law three decades ago.
In addition, Knight said, Paxton is the chief policymaker for his agency, so his actions amounted to the actions of the attorney general’s office — and governmental entities can be sued under the act.
“Every act we complain about here is one Mr. Paxton took in his official capacity as the attorney general,” Knight told the court. “We’re not complaining about something Mr. Paxton did on his own time, in the privacy of his own home.”
Paxton turned to the 3rd Court of Appeals after a district judge in Austin declined his request to toss out the lawsuit in March.
Wednesday’s arguments were the first held in person at the 3rd Court since the pandemic began, with proceedings streamed on the court’s YouTube channel because audience seating was limited as a safety precaution.
All three justices on the court’s panel are Democrats — Chief Justice Darlene Byrne and Justices Gisela Triana and Chari Kelly. They have no deadline to render a decision, which can be appealed to the Texas Supreme Court, where all eight members are Republicans, with one vacancy.
Paxton accused of misconduct
In late September 2020, eight high-ranking officials approached the FBI, Texas Rangers and Travis County district attorney’s office to accuse Paxton of criminal conduct on behalf of Austin real estate investor Nate Paul.
All eight resigned or were fired within two months. Four sued under the Whistleblower Act, arguing that their long legal and law enforcement experience reinforced their conclusion that Paxton was breaking the law:
• James Blake Brickman, fired Oct. 20, was the deputy attorney general for policy and strategic initiatives.
• David Maxwell, fired Nov. 2, was director of the agency’s law enforcement division after 38 years with the Texas Department of Public Safety, including 24 years as a Texas Ranger.
• Mark Penley, a former federal prosecutor, was the deputy attorney general for criminal justice until he was fired Nov. 2.
• Ryan Vassar was the deputy attorney general for legal counsel, serving as the agency’s top legal officer until he was fired Nov. 17.
The whistleblower lawsuit alleges that Paxton illegally used his office in 2019 and 2020 to help Paul in exchange for benefits that included remodeling Paxton’s Austin home, employing Paxton’s mistress and receiving a $25,000 political donation.
Paul had approached the attorney general’s office with a complaint that state and federal investigators improperly searched his home and businesses in 2019.
Paxton has defended his actions as appropriate, saying Paul’s allegations were serious and deserved to be investigated. He also described the whistleblowers as “rogue employees” who sought to stymie that investigation.
The allegations against Paxton
The whistleblower lawsuit made four central allegations against Paxton:
• That he improperly intervened in an open records request by Paul, who wanted access to an unredacted FBI document and state investigative records, despite Paxton having “never personally involved himself in any of the 30,000-40,000 open records decisions OAG issues each year,” the lawsuit said.
• That he intervened in a dispute between Paul and a charitable trust after his agency had declined to get involved.
• That he pushed for an unusually rapid legal opinion, issued at 2 a.m. on a Sunday in August 2020, limiting public foreclosure sales due to the pandemic — days before one of Paul’s properties was scheduled for a foreclosure sale.
• That he overruled Maxwell and Penley, who had concluded that Paul’s allegations of misconduct by investigators lacked merit, to hire an outside lawyer to dig into Paul’s claims.
The lawsuit accused Paxon of crimes including bribery, perjury, falsification of government records, abuse of office and obstruction of criminal investigations.
Last month, the attorney general’s office issued an unsigned report that said an internal investigation into some of the allegations concluded that Paxton broke no laws in official actions related to Paul.
Texas Attorney General Ken Paxton, with his snowballing legal troubles and slim margin of victory in his 2018 re-election, has instilled new fervor in challengers from both parties — but especially Democrats hoping to seize on what they see as a prime opening.
Paxton, who has been under indictment since 2015 for felony securities fraud charges and is facing an FBI investigation after being accused of corruption by his top aides last October, will face at least two high-profile challengers in the Republican primary: Texas Land Commissioner George P. Bush and former Texas Supreme Court Justice Eva Guzman. Both have identified the seat as one vulnerable to a Democratic flip.
“They see that Ken Paxton is our weak link,” Bush said about Democrats at his campaign announcement in June. “They know that if he was the lowest vote-getter statewide in the last election cycle, and they know that if he is our nominee again, they have their first statewide elected office in close to 30 years.”
Two candidates are so far vying for the Democratic nomination: Joe Jaworski, 59, a mediator and former Galveston mayor, and Lee Merritt, 38, a nationally recognized civil rights attorney.
Both of the Democrats have emphasized the need to bring integrity back to the attorney general’s office. It’s a line of attack that Paxton’s Republicans challengers are putting front and center, as well.
“Of course, I was saying that before George Bush was, but I welcome his perspective,” Jaworski said. “I mean, of all offices, for Christ’s sake, the attorney general’s office needs to be above reproach.”
Austin attorney Justin Nelson also focused on Paxton’s legal woes when he came within 3.6 percentage points of defeating him in 2018.
Paxton has denied any wrongdoing in both the securities fraud case and the corruption inquiry. The FBI investigation has been ongoing for nearly a year without a resolution.
A Paxton primary win would indeed give the Democrats their best chances to win a statewide election next year, said Juan Carlos Huerta, professor of political science at Texas A&M University-Corpus Christi.
“If Guzman or Bush were to win the nomination, that takes away all the scandal and investigations that surround Paxton,” Huerta said.
Republicans understandably have the advantage over Democrats when it comes to attracting well-known candidates because of their hold on power in Texas, Huerta said. It’s an issue also afflicting the party when it comes to finding a Democrat to run against Republican Gov. Greg Abbott.
“There’s not a deep bench of high-profile candidates,” Huerta said. “Also, some of the higher profile names may already have elected positions and don’t want to risk those. Other than (former 2020 presidential candidates) Beto O’Rourke and Julian Castro, there are not many Democrats in Texas who have a high statewide profile.”
‘A Ken Paxton problem’
Practicing law was part of the family legacy for Jaworski, whose grandfather is the late Watergate special prosecutor Leon Jaworski.
Jaworski was elected mayor of the Gulf Coast island city in 2010 after pulling 53 percent of the vote in a five-way contest. Prior to that, Jaworski had served three terms on the city council before unsuccessfully challenging state Sen. Mike Jackson, R-Pasadena, in 2008.
His tenure as Galveston mayor was marked by a controversial plan to rebuild public housing destroyed by Hurricane Ike as a mixed-income development, a move that cost him politically.
In 2012, despite backing by prominent Democrats including U.S. Rep. Sheila Jackson Lee and then-state Rep. Sylvester Turner, Jaworski was defeated by retired businessman Lewis Rosen who opposed the project — and took 57 percent of the vote to his 43 percent after a heated runoff.
“Some of it was racism, some of it was Galveston has a landlord industry there,” Jaworski said. “It was hostile. It was incredible. I just couldn’t believe I’d gone from this wonderful, popular, new-energy guy to this single-issue bean bag, but I knew I was doing the right thing.”
Jaworski now runs his own law firm that concentrates on mediation for claims brought by military contractors.
If elected, Jaworski said he plans to push for policies that increase voter access to the polls, support the Affordable Care Act, expand Medicaid and legalize cannabis. Jaworski, like Merritt, says the attorney general’s office is wasting tax dollars on investigating rare voter fraud cases.
“We don’t have a voter fraud problem; we have a Ken Paxton problem,” he said. “He is using this as an ideological pivot for his base and to justify whatever few prosecutions he can muster.” Jaworski said Paxton should instead be doing more to address gun violence, adding “people are actually dying in those instances.”
Both Merritt and Jaworski have said they would create a civil rights division within the office.
Merritt was top fundraiser
Merritt, though he entered the race this summer, almost a full year later than Jaworski, has wasted no time fundraising. In the last reporting period that spanned July 7 to Aug. 6, Merritt raised more than $285,000, more than any Republican in the race, including Paxton.
Over the same period, Jaworski raised about $30,000, while Bush raised about $158,000 and Guzman raised $193,000. Paxton raised about $39,000, but the incumbent maintained the most cash-on-hand by millions at last count.
Merritt rose to prominence in recent years for taking on high-profile police accountability cases and representing families of Black Americans killed by police, including George Floyd, Ahmaud Arbery, Atatiana Jefferson and Botham Jean. If elected, he would be the state’s first Black attorney general.
In 2017, online magazine The Root named Merritt the eighth-most-influential African-American between ages 18 and 45 in the U.S, three spots ahead of Beyoncé.
Having worked on criminal justice reform issues with attorneys general in other states, even Republicans such as Chris Carr of Georgia, Merritt said he could see a stark contrast between the work they were doing and what little Paxton has done.
For instance, Carr in May signed a law repealing the “citizen’s arrest” that was used as a defense in the fatal shooting of Arbery. Meanwhile, Merritt said, he sees Paxton’s office regularly allowing law enforcement to keep video evidence of police abuse of force outside of public view.
“It was that frustration of: The most basic responsibility of the attorney general is to uphold the constitution and protect life, liberty and property,” he said about his decision to jump in the race. “And we have an attorney general who has been completely asleep at the wheel, and people are dying.”
Though it’s not his only campaign issue, Merritt says he’s confident that police reform will appeal to voters of both major political parties.
“When we’re all in a room together, we find that we’re not really that far apart,” he said. “Law enforcement officers agree that they aren’t equipped to deal with the mental health crisis.”
Merritt said he hopes to address other areas where Paxton falls short, such as advocating for Texas consumers, especially in the wake of the February 2021 winter storm, and finding root causes for unpaid child support rather than focusing on criminal penalties.
“This is going to be a campaign about meeting the practical needs of Texans,” Merritt said.