State judges across the United States face growing GOP resistance to rulings in election cases
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-to-1 opinion, the all-Republican court weakened Attorney General Ken Paxton’s power to independently prosecute voter fraud, a problem he said is endemic but is actually extremely rare.
The decision angered Paxton, who caught on Twitter say the decision “could be devastating to future elections in Texas.”
But he didn’t stop there. As well as filing a motion for a rehearing, he embarked on a campaign in conservative media calling on his constituents to pressure the judges to overturn their decision.
His crusade is the latest example of how Republican officials are trying to discredit state court judges who rule against them or make rulings they disagree with in election-related cases.
Officials in other states, including Tennessee and Pennsylvania, are also using the tactic to undermine the court system and sow doubt among voters about whether judges can be independent arbiters of fact when it comes to decisions regarding the administration of elections.
“Things like this are what people think of when they say our democracy is on fire right now,” said Anthony Gutierrez, executive director of Common Cause Texas.
“It really illustrates how the courts in Texas are not independent right now,” he added. “The fact that they think it’s going to work really shows how serious this problem is, and it looks like it might work because these judges are sensitive to pressure.”
“Call Them By Their 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 American statesman of Austin.
“Call them by name. I mean, you can search for them. There are eight who voted the wrong way. Call them, send mail, send emails.
Paxton also urged listeners to harass the judges during an appearance on former Trump White House strategist Steve Bannon’s “War Room” podcast. Paxton claimed the court’s decision was part of a plot by Democrats to allow massive voter fraud, enabled by Democratic district attorneys, to win statewide elections.
“I think it was planned,” Paxton said. “They’ve been working on this for probably a decade to get ADs in place and then recruit the right people to the criminal appeals court.”
Republican Gov. Greg Abbott and Lt. Gov. Dan Patrick also joined Paxton’s media blitz.
On Tuesday, Michael Shirk, a retired Austin attorney, filed a lawsuit with the state bar arguing that Paxton should be disbarred for inciting members of the public to pressure judges, according to the Austin American Statesman. Texas attorney conduct rules place strict limits on the amount of contact attorneys can have with judges outside of court.
Paxton’s effort appears to mimic Trump, who was known to insult and attack judges who ruled against him or in ways he disliked.
Trump called on the late Supreme Court Justice Ruth Bader Ginsburg to resign and tweeted slurs about judges who blocked his executive orders.
Laws limiting the judiciary
Attacks on judges do not only come in the form of harassment. Republican lawmakers have pushed for 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.  it would have limited the power or independence of state courts or made them more partisan. Of those bills, at least 19 have become law in 14 states.
New laws limit how judges can affect elections or attempt to prevent judges from getting involved in voting-related matters
In Georgia, the voter suppression package signed into law by Republican Gov. Brian Kemp has made it harder for judges to extend polling hours on Election Day when unforeseen circumstances such as power outages or delayed voting starts occur.
“These attacks on state court judges in election-related cases are part of the broader power grab we’ve seen in seeking to undermine or manipulate future elections,” said Patrick Berry, a lawyer 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 steer clear of the courts when it comes to elections.
A Nashville judge issued a ruling ahead of the August 2020 primary dramatically expanding who could vote by mail due to the coronavirus pandemic. In response, Republicans in the state General Assembly initiated 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 legislative-judicial boundaries when she attempted to ignore state law and implement her own rules, personal opinions and policies that were in direct conflict with the existing state law,” Republican state Rep. Tim Rudd, who introduced the resolution, told the Tennessee Lookout last year.
Lawyers across Tennessee rallied to defend Lyle, and Democrats fought the resolution, ultimately defeating it.
“Seeking to remove a sitting judge because the judge has found a state law to be unconstitutional is unconstitutional in and of itself,” Rep. John Ray Clemmons, a Nashville Democrat, said at a press conference. when the resolution is announced.
But Republican lawmakers still moved forward with other efforts to dilute the power of judges. They have introduced a bill to limit the types of cases judges can hear regarding elections and which takes power away from judges.
Lyle’s impeachment attempt also had a chilling effect on other judges in the state, said Renee Parker Sekander, executive director of the nonpartisan group Organize Tennessee.
“It’s really scary to think that the courts are supposed to have your back, and they’re supposed to be non-partisan and independent, but then our state leaders and elected officials can retaliate against a judge for making their decision. “, she said.
“If judges are afraid to judge and protect Tennesseans because they’re afraid they’ll have to fight to protect their jobs, we’re afraid people won’t come out in our favor anymore.”
An attempt to remove judicial authority over elections has taken place in Nevada. During last year’s legislative session, five Republican members of the Assembly proposed a constitutional amendment that would have removed the responsibility for certifying election results from the state Supreme Court and transferred it to lawmakers. . The effort went nowhere in the Democratic-controlled legislature.
Impeachment push in Pennsylvania
After the Pennsylvania Supreme Court struck down the state’s congressional district map in 2018, Republican lawmakers in the state attempted to impeach all of the justices who had a majority on the decision.
The effort failed, but in October 2020, a Republican lawmaker introduced another resolution to remove a state Supreme Court justice, citing a number of rulings, including the redistricting one and another election-related one. of 2020.
Berry said the efforts are troubling because historically the removal of judges has been for serious ethical or criminal misconduct.
“These efforts are basically telling judges to stand in line or risk being kicked off the bench, and that’s really dangerous because the courts can’t do their job of controlling abuse of power unless they don’t. be able to make high-profile decisions regardless of political pressure,” he said.