Republican-Appointed Texas Federal Judge Endorses ‘Vote Harvesting’ Conspiracy Amid Primaries
This article is part of the TPM Café, the TPM opinion and news analysis site. It was originally published on Balls and Strikes.
Last Tuesday, early voting began in the primary elections to choose candidates for the upcoming U.S. Senate race in Texas. One of the Republican candidates for that Senate seat, Texas Attorney General Ken Paxton, marked the occasion by issuing a “legal notice” informing Texans that a host of normal election activities are actually crimes.
Texas actually prohibits encouraging people to vote for a particular person or proposition if you are near a vote. Under state law, any in-person interaction that occurs “in the physical presence of an official ballot or absentee ballot” and is “intended to deliver votes for a specific candidate or measure” constitutes “vote harvesting services.” If you offer or receive “compensation” or “other benefit” in exchange for such “services,” you could face up to ten years in prison and a fine of up to $10,000.
“Other benefit” is a broad term, and local civic organizations are concerned that the law could cover a wide range of interactions. If a campaign gives its voting volunteers free t-shirts to wear while canvassing, the campaign and its volunteers may have broken the law. If a voter gives these volunteers a few glasses of water so they can keep knocking on doors in the Texas heat, that voter may also have broken the law. “Vote harvesting is a crime,” Paxton’s notice warns, in bold text.
Texas’ ban on voter canvassing is part of a series of measures passed by Republican lawmakers in response to President Donald Trump’s repeated false claims that widespread fraud cost him the 2020 election. Local civic organizations filed a lawsuit in 2021, arguing that the law infringed on their free speech and was unacceptably vague, violating the First and Fourteenth Amendments. In September 2024, Federal District Court Judge Xavier Rodriguez agreed and struck down the law, emphasizing that restricting cold calling did not solve a “real problem.” Rodriguez, appointed by President George W. Bush, also found that Texas “provided no evidence” that canvassers confused voters or improperly influenced them, and that there was no evidence that existing limits on absentee voting assistance were insufficient to eliminate the “few alleged instances of misconduct” in the state.
In other words, the district court found that Texas was stifling people’s fundamental political discourse and interfering in elections without good reason. But earlier this month, the Fifth Circuit Court of Appeals overturned the district court’s decision. In LUPE v. AbbottA panel of three Republican judges insisted that voter fraud is a huge problem that states have every right to solve by punishing voters and the people who help them.
Judge Edith Jones, appointed by President Ronald Reagan, said mail-in voting is “unsurprisingly” “fraud-rich territory.” Joined by two Trump appointees, Jones, in the ledger of a conservative conspiracy theory email sent to you by the least pleasant member of your extended family, described “vote harvesting” as a scheme in which “agents” prowl “targeted precincts” and persuade people to register to vote by mail — or, “more nefariously,” to falsify applications themselves. Once voters receive ballots “requested by solicitation or counterfeit,” Jones continued, agents return to collect them and “ensure” that the ballots were cast for their preferred candidate. To support her assertion that this is a serious problem, she claimed that “72% of all election prosecutions undertaken by the Texas Attorney General” between 2004 and 2021 “involved mail fraud.”
Jones cited no sources to support any of these propositions. But in July 2021, Austin news outlet KVUE obtained from the Texas Attorney General’s Office a list of alleged election law violations from 2004. Records show that as of March 2021, the office had filed 1,044 charges under election law, 724 of which were related to mail-in fraud since 2004. That’s about 69 percent. Seeing about 720 out of 1,000, one can understand how Jones was able to arrive at the figure of 72 percent.
Dodgy arithmetic can be excused. But we cannot excuse a misleading argument. Context matters, and it’s context that Jones’ opinion obscures. Data on the prevalence of absentee voting charges among election fraud prosecutions provides no information on the actual prevalence of absentee ballot fraud. Additionally, the majority of mail fraud charges on KVUE’s March 2021 list – 414 out of 724 – were marked as “pending” prosecutions. The pending charges are unproven allegations and provide no information on the true extent of mail fraud.
Likewise, the number of cases marked “resolved” provides no useful information about the prevalence of fraud if it does not specify how those charges were resolved. An April 2022 version of the Election Violation Tracker was filed as an exhibit in the case, for example, and shows four defendants who were indicted on 134 counts. Their cases were “resolved” when they each pleaded guilty to a misdemeanor.
A quick look at Texas voting data over the past two decades shows how misleading Jones’ statistics are. The district court opinion states that the Texas Attorney General’s Office prosecuted 401 counts – not cases – of voter fraud between 2005 and 2022. In July 2021, Texas Representative Diego Bernal testified before Congress that there had been only 154 voter fraud prosecutions in Texas over the previous 17 years, out of 94 million votes cast, or several thousandths of a percent. hundred. You’re more likely to be struck by lightning than Texas prosecutors are likely to convict anyone of election fraud.
For decades, study after study has shown that voter suppression – not voter fraud – is the real threat to the integrity of elections. Yet in LUPE v. Abbotta panel of three Republican judges embraced the fiction and empowered Republican lawmakers to cause real harm to voters.
