Texas Attorney General Ken Paxton wrote a letter urging Treasury Secretary Steve Mnuchin to investigate and potentially revoke CARES Act funds awarded to Harris County, Texas, Treasury Department records obtained by CREW show. Harris County used the funds to buy millions of mail-in ballots to help the county’s millions of residents safely vote during the pandemic. Paxton never publicized the letter to his Texas constituents.
If Paxton expected support for his bid for the federal government to revoke emergency aid to his state, why wouldn’t he publicize the letter?
In the May 21 letter, Paxton “alert[ed]” Mnuchin about Harris County’s plan to use $12 million in CARES Act funds to pay for up to two million mail-in ballots. Paxton’s request was part of his multi-pronged effort to fight mail-in voting in Texas amid the raging coronavirus pandemic, which has claimed nearly 26,000 lives in Texas to date. It’s no coincidence that Paxton’s efforts focused on Harris County, home to Houston, the largest city in Texas and one of the most diverse cities in the country. Biden would go on to win Harris County by more than 200,000 votes.
Paxton’s public efforts to restrict mail-in-votes include suing in advance of the election and acting as the lead attorney general on the lawsuit filed last week in the Supreme Court against four battleground states whose votes delivered the 2020 election to President-Elect Biden. Paxton’s most recent lawsuit was so unusual that some have speculated that Paxton filed it in order to lobby for a pardon from President Trump to clear him of an indictment for securities fraud and an FBI investigation of criminal bribery and abuse of power allegations. On Fox News, Paxton called that idea “ridiculous.”
Now we know that while Paxton waged this public battle in the courts, he was also privately lobbying the Trump Administration to intervene. CREW obtained Paxton’s letter to Mnuchin as part of a Freedom of Information Act lawsuit against the Treasury Department, which remains ongoing.
Not only did Paxton take the unusual step of asking the government to revoke money from his state, but he used baseless arguments to make his case. Paxton’s letter claimed that, under Texas law, the public health emergency created by the pandemic did not justify plans by several Texas counties to utilize expansive mail-in voting. Yet Paxton did not argue that the counties’ plans violated the CARES Act itself or any other federal law within the Treasury Department’s purview. Nor could he have: the CARES Act authorizes local governments to use federal relief money to cover expenses they deem “necessary expenditures incurred due to the public health emergency with respect to the Coronavirus Disease 2019.” In public guidance, the Treasury has interpreted this language “broadly to mean that the expenditure is reasonably necessary for its intended use in the reasonable judgment of the government officials responsible for spending Fund payments.”
In other words, federal law empowers local officials–not the federal government, and not state attorneys general like Paxton–to decide whether CARES Act expenditures are “necessary” to address the public health emergency. And local officials in Harris County did just that.
On April 28, county commissioners approved funding for mail-in ballots by a 3-2 vote following extensive deliberation. While acknowledging Paxton’s ongoing legal challenges, Harris County Clerk Diane Trautman explained: “I am not waiting on the state for answers. I am preparing for an expanded mail ballot program in addition to a safe and secure in-person voting process. No matter what the courts and the state decide for the July and November elections, we must be prepared for an increase in mail ballots, which we have already seen in our office.”
Unable to cite any federal law supporting his request to Mnuchin, Paxton’s letter spun out a tenuous legal argument that the expenditures were barred under Texas law. His theory: Harris County planned to purchase up to 2 million mail-in ballots for the 2020 election, which was higher than the 1.3 million votes cast in the 2016 election, and the 1.2 million votes cast in the 2018 election. Citing this data, Paxton jumped to the conclusion that “the vast majority of new ballots funded” by the Harris County commissioners “almost certainly would be provided to persons ineligible to vote by mail under Texas law.”
But Paxton’s focus on state law was off-base, as federal law clearly grants local officials authority to determine what expenditures are “necessary” to respond to the ongoing public health emergency. Paxton also overlooked that Harris County officials, faced with the unprecedented challenges posed by overseeing an election during a deadly pandemic, reasonably determined it was necessary to prepare for the “possibility” that “substantially more people will request a mail-in ballot in 2020” than in prior elections.
County officials shouldn’t be penalized for being cautious during a pandemic. Yet that’s precisely what Paxton wanted: he closed his letter by asking the Treasury to “scrutinize its award of CARES Act funding to Harris County” and to “seek return of any amounts” he claimed were improperly spent. This request is striking: the state’s attorney general–elected by the people of Texas–used his public office to urge the federal government to revoke emergency aid awarded to his own state and constituents.
It’s one thing for Paxton to publicly wage his war against mail-in voting in the courts; it’s another for him to privately urge the federal government to rescind scarce aid given to his state amid a global pandemic. That’s beyond the pale, even for Paxton.