The Texas Court of Criminal Appeals, the court of highest resort in Texas for criminal cases, issued an order refusing to reconsider a decision from late last year that held that the “the specific powers given to the Attorney General by the Texas Constitution do not include the ability to initiate criminal proceedings—even in cases involving alleged violations of the Election Code.” The decision is curious—to say the least—but what is perhaps more remarkable is Judge Walker’s concurrence, which begins with a forthright acknowledgement of the risks of party polarization and rampant falsehoods to democracy

“My concern is the negative impact such a ruling could have on the fairness of elections in the future. It is possible that, in the not-too-distant future, a new politician could be elected as the Attorney General of Texas. If we ruled that the legislature could give the Attorney General the unfettered power to prosecute all election cases, we would be giving every future Attorney General the power to bring possibly fabricated criminal charges against every candidate running for public office in the State of Texas who disagrees with the Attorney General’s political ideals.

While some individuals are likely to favor that kind of power when wielded by one who agrees with their political views, would these same people want an individual they disagree with to be able to use this power to prosecute for purely political reasons? I, for one, do not think so, and I thank God for the Separation of Powers Doctrine.”

Still, the whole thing seemed very curious, so I was very pleased to get the following backstory from Chad W. Dunn, Legal Director, Voting Rights Project at UCLA. The story of politically motivated prosecutions of election crimes starts with Greg Abbott. When Abbott was Texas AG, his office, according to Dunn, started an election crimes division that targeted almost exclusively people of color about various election related issues. The unit substantially grew when Ken Paxton became the state’s AG. It has “prosecuted people all over the state, almost exclusively racial minorities, for election actions, many of which were simple mistakes and some of which were not real crimes at all.” It is this division that is also anticipated to prosecute women who violate the state’s new abortion restrictions.

But what is most fascinating is that the attorneys were able to use Texas’ 1876 White Redemption Constitution to secure this victory in a case involving one of these prosecutions.

“Our argument was the state constitution adopted after Reconstruction in 1876 purposefully did not give statewide prosecution authority. This was so because when the federal Reconstruction Governor governed the state, slaveowners were prosecuted for not releasing their slaves. If only local officials could prosecute, those local officials would be responsive to the local (White) citizens that elected them. And thus, very little criminal action would take place to prosecute federal laws that protected against race discrimination and indentured servitude.”

The text of Texas’s Constitution is apparently quite clear that this was a central feature of the constitutional arrangement.

The upshot?

For Texas, the decision “means that people prosecuted by the AG for election crimes will have to be discharged from incarceration.” In future, election crimes—and other crimes, such as targeting women violating the abortion laws—can only go forward with the consent of local district attorneys.

For me, I have learned a great deal this afternoon about the idiosyncrasies of the Texas Constitution and the long-arm of those late nineteenth-century white-supremacist constitutions.