by Kira Lerner, Georgia Recorder [This article first appeared in the Georgia Recorder, republished with permission]
February 16, 2022
In mid-December, Texas’ highest criminal court revoked the state attorney general’s ability to use his office to prosecute election-related cases without the request of a district or county attorney.
In an 8-1 opinion, the all-Republican court weakened Attorney General Ken Paxton’s power to independently go after perpetrators of voter fraud, a problem he says is rampant but is actually exceedingly rare.
The decision angered Paxton, who took to Twitter to say the ruling “could be devastating for future elections in Texas.”
But he didn’t stop there. In addition to filing a motion for a rehearing, he embarked on a campaign across conservative media calling on his voters to pressure the judges to reverse their ruling.
His crusade is the latest example of how Republican officials are trying to discredit state court judges who rule against them or issue rulings they disagree with in election-related cases.
Officials in other states, including Tennessee and Pennsylvania, are also using the tactic to undermine the judiciary and to sow doubt among voters about whether judges can be independent arbiters of fact when it comes to decisions about the administration of elections.
“Things like this are what people think about when they say our democracy is on fire right now,” said Anthony Gutierrez, executive director of Common Cause Texas.
“It really illustrates how Texas courts are not independent at the moment,” he added. “The fact they think this is going to work really highlights how bad this problem is, and it does seem like this could work because these judges are susceptible to pressure.”
‘Call them out by name’
In Texas, “contact the Court of Criminal Appeals,” Paxton told viewers of MyPillow CEO and Donald Trump supporter Mike Lindell’s conservative broadcast platform Lindell TV, according to the Austin American Statesman.
“Call them out by name. I mean, you can look them up. There’s eight of them that voted the wrong way. Call them, send mail, send email.”
Paxton similarly urged listeners to harass the judges in an appearance on former Trump White House strategist Steve Bannon’s “War Room” podcast. Paxton claimed the court ruling is part of a conspiracy by Democrats to allow massive voter fraud, enabled by Democratic district attorneys, to win elections across the state.
“I think this has been planned,” Paxton said. “They have been working on this for probably a decade to get DAs in place and then to get the right people on the criminal court of appeals.”
Republican Gov. Greg Abbott and Lt. Gov Dan Patrick also joined Paxton’s media blitz.
On Tuesday, Michael Shirk, a retired Austin lawyer, filed a complaint with the state bar arguing that Paxton should be disbarred for inciting members of the public to pressure the judges, according to the Austin American-Statesman. Texas rules for attorney conduct impose strict limits on how much contact attorneys can have with judges outside of court.
Paxton’s effort seems to mimic Trump, who was notorious for insulting and attacking judges who ruled against him or in ways he didn’t like.
Trump called on the late Supreme Court Justice Ruth Bader Ginsburg to resign and tweeted insults about judges who blocked his executive orders.
Laws limiting judicial power
The attacks against judges aren’t just coming in the form of harassment. Republican lawmakers have pushed legislation to limit the power of judges when it comes to election-related matters.
According to a December report from the Brennan Center for Justice, “legislators in 35 states considered at least 153 bills between January 1 and December 10  that would have limited state courts’ power or independence or made them more partisan. Of those bills, at least 19 have become law across 14 states.”
The new laws limit how judges can affect elections or try to keep judges from getting involved in voting-related cases.
In Georgia, the voter suppression package signed into law by Republican Gov. Brian Kemp made it more difficult for judges to expand polling place hours on Election Day when unforeseen circumstances like power outages or delayed starts to voting occur.
“These attacks on state court judges in relation to election-related cases are part of the larger power grab we’ve been seeing seeking to undermine or manipulate future elections,” said Patrick Berry, an attorney who works on democracy and justice issues for the Brennan Center for Justice.
In Tennessee, GOP lawmakers are also using harassment as a tactic to keep courts out of their way when it comes to elections.
A judge in Nashville issued a ruling before the August 2020 primary substantially expanding who could vote absentee because of the coronavirus pandemic. In response, Republicans in the state General Assembly launched a resolution in February 2021 to remove the judge, Davidson County Chancellor Ellen Hobbs Lyle, from the bench.
Lyle is a highly regarded judge who was appointed to the bench in 1996.
“Chancellor Ellen Hobbs Lyle violated the boundaries between the legislative and judiciary when she attempted to disregard state law and implement her own rules, personal opinions and policies that were in direct contradiction of existing state law,” Republican state Rep. Tim Rudd, who introduced the resolution, told the Tennessee Lookout last year.
Lawyers across Tennessee stepped up to defend Lyle and Democrats fought the resolution, causing it to ultimately fail.
“Seeking to remove a sitting judge from office because the judge ruled a state statute was unconstitutional is unconstitutional in and of itself,” Rep. John Ray Clemmons, a Democrat from Nashville, said at a news conference at the time the resolution was announced.
But Republican lawmakers still moved forward with other efforts to dilute the power of judges. They introduced a bill to limit the types of cases that judges can hear concerning elections and that strips power away from judges.
The attempt to remove Lyle also had a chilling effect on other judges across the state, said Renee Parker Sekander, executive director of the nonpartisan group Organize Tennessee.
“It’s really scary to think the courts are supposed to have your back, and they’re supposed to be nonpartisan and independent, but our state leadership and our elected officials can then retaliate against a judge for ruling,” she said.
“If judges are afraid of ruling and protecting Tennesseans because they’re afraid that they’re going to have to fight to protect their jobs, we’re scared that people will no longer rule in our favor.”
Pennsylvania impeachment push
After the Pennsylvania Supreme Court struck down the state’s congressional district map in 2018, Republican lawmakers in the state tried to impeach all the justices who were in the majority on the decision.
The effort failed, but in October 2020, a Republican lawmaker introduced another resolution to remove a justice from the state Supreme Court, citing a number of decisions including the redistricting one and another related to the 2020 election.
Berry said the efforts are troubling because historically, the impeachment of judges has been for serious ethical or criminal misconduct.
“These efforts are essentially telling judges to fall in line or risk getting kicked off the bench, and that’s really dangerous because courts can’t serve their function as a check on abuses of power unless they’re able to issue decisions in high-profile cases without regard to political pressure,” he said.
Georgia Recorder is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Georgia Recorder maintains editorial independence. Contact Editor John McCosh for questions: firstname.lastname@example.org. Follow Georgia Recorder on Facebook and Twitter.