- The Washington Times
Tuesday, April 23, 2019

Texas Attorney General Ken Paxton is waging a new legal battle against Democrats in Washington, refusing to turn over documents to a House committee trying to investigate his state’s efforts to kick noncitizens off its voter rolls.

Mr. Paxton argues that, as a constitutional officer of a sovereign state, he’s immune to demands for documents other than what’s legally required under Texas law. He told House Oversight Committee Chairman Elijah Cummings earlier this month he would not comply with the panel’s request.


The committee says Mr. Paxton’s objection won’t stand, and it expects him to cooperate and provide the information it is seeking on whether Texas erroneously tried to scrub thousands of names from its voter lists.

The fight is “largely unprecedented” and could end up breaking new legal ground, depending on how dug-in both sides are, says Charles Tiefer, a former top lawyer for the House and now a professor at the University of Baltimore School of Law.

Mr. Cummings‘ demand for documents is part of a broader investigation into how several Republican-led states have tried to cleanse their voting rolls. In Texas, the secretary of state spotted what officials believed to be 95,000 people who may not be U.S. citizens and sent notices telling them to respond or risk being kicked off.

Since then, some local officials said they have discovered that some of those notified likely are citizens.

A court has stepped in and halted any name-purging, and Mr. Cummings is trying to shine a spotlight on the state’s moves. He demanded both Mr. Paxton and acting Texas Secretary of State David Whitley turn over communications within and between their offices, as well as with the governor, the Texas Department of Public Safety and local election officials.

Mr. Cummings had set an April 11 deadline.

Instead, on April 11 Mr. Paxton’s office fired off a letter saying Mr. Cummings was overstepping.

“We do not interpret your letter to be a subpoena issued under any applicable House rules. Nor do we consider it a request for information under any applicable federal law,” wrote Jeffrey C. Mateer, first assistant attorney general.

He also asserted that the committee didn’t have “jurisdiction over constitutional officers of the state of Texas,” so he would consider Mr. Cummings‘ request an open-records request under Texas law. But because of the lawsuit, the attorney general believes all records would be shielded.

“We appreciate the committee’s interest,” Mr. Mateer wrote. “Notwithstanding political rhetoric to the contrary, our office has real, first-person experience showing the threat to election integrity in Texas is real.”

Mr. Cummings is unlikely to let matters rest.

“Congress is not limited by public records laws, and Congress has an independent responsibility to investigate violations even when there may be separate litigation involving the same or similar matters. We expect full compliance with the committee’s request,” an aide to the congressman told The Washington Times.

Should the committee insist, Mr. Tiefer said the opposing sides could force the courts to plow new ground.

“The state argues that it’s a sovereign and that the federal Congress can look into the federal government but not the state government. Congress will argue that it has comprehensive jurisdiction and it regularly does oversight, like oversight of banks or like recently with Silicon Valley companies, and that it has legislative jurisdiction over state voting practices,” he said.

He said there have been similar battles before, but someone has backed down and headed off a court ruling. He said an accommodation might be the better option now, in a case neither side can be sure of winning.

“As a case, I think of this like two big rams butting heads. It’s a big collision. It would be better if they could settle the issue rather than butt heads,” Mr. Tiefer said.

He said Mr. Cummings might get some information faster if he works with Mr. Paxton, adding that a fight could delay the chairman’s investigation for a long time.

Investigating the states is not new to Congress. In recent years the House Oversight and Government Reform Committee probed the drinking water problem in Flint, Michigan, and sparred with then-Gov. Rick Snyder over access to state documents.

One right-leaning activist group said that if Mr. Cummings wants to investigate voting issues, there are other areas he should pursue instead.

The Public Interest Legal Foundation said the 1993 motor-voter law, which required states’ motor vehicle offices to allow voter registration, has left voter rolls a mess. J. Christian Adams, the group’s president, said it has led to citizens being kicked off the rolls in Virginia, while noncitizens are allowed to sign up in places like Texas, Pennsylvania and New York.

Mr. Adams said activists are using reports of voting problems to stir up their supporters and raise money for their crusades — while getting the facts wrong.

He pointed to the situation in Dodge City, Kansas, where the American Civil Liberties Union led a lawsuit last year against a new polling location. The old location was undergoing construction and couldn’t be used, so the city picked a new spot, ran notices alerting the public to the change and offered free door-to-door bus service to help residents get from their homes to the polls.

The ACLU eventually withdrew the lawsuit.

“But based on the ACLU’s public comments and editorials, it seems that this case was far less about Dodge City than it was about a campaign to raise money by tricking the wider public and to secure broad voting-related changes that advance the organization’s agenda,” Mr. Adams wrote.


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