In one of the more miraculous legal attempts to overturn election results in the wake of the 2020 election, the state of Texas sued the state of Pennsylvania. Seventeen states joined Texas in requesting that the U.S. Supreme Court take up the case and invalidate election results in four key states. Washington, D.C. and 22 states and territories opposed the Lone Star state’s motion.
What does it mean for a state to sue another? For 17 states to join Texas’ effort and 22 others to oppose it? This choice largely comes down to the state’s attorney general, a statewide elected position that serves as the top legal office for a given state or territory. (In seven states, the attorney general is an appointed position.) Attorneys general are the legal advisors for state governments and defend their state laws in court. They can also determine a state’s approach and priorities for law enforcement, including — and crucially — regarding abortion access in the wake of the Dobbs decision.
Attorneys general can be powerful forces for good; they shut down harmful pharmaceutical companies, challenge fossil fuel polluters and protect against voter intimidation. But, they can also do immense harm. Following the 2020 election, Texas Attorney General Ken Paxton (R) led the legal crusade to overturn presidential election results. In the sphere of voting, attorneys general can influence election laws, investigate and prosecute voter fraud and launch legal challenges in favor or against certain voting rules (or as we saw, against the outcomes of free and fair elections).
This November, there are 30 attorney general seats on the ballot. It’s another one of the statewide positions — just like governor and secretary of state — where numerous GOP candidates are running on platforms focused on investigating, to a dangerous extreme, voter fraud and if necessary, overturning election results.
- Incumbent candidate: None
- Who we need to elect: Kris Mayes (D)
- Trump’s “Big Lie” candidate of choice: Abe Hamadeh (R)
Abraham “Abe” Hamadeh, a former prosecutor from the populous Maricopa County, is one of a slate of extreme, far-right candidates who swept the Arizona GOP’s statewide nominations. Hamadeh has made elections central to his campaign; he does not believe President Joe Biden won Arizona in 2020 and disagrees with the governor’s certification of those results. “The day I take office in January 2023 we will prioritize the Election Integrity Unit and increase the number of prosecutors and investigators in order to be prepared and protect the 2024 election,” reads his campaign website.
A few days before his primary election, Hamadeh tweeted a screenshot from Steve Bannon that reads, “The actual count will happen, and the Biden Electors decertified.” There is no real or legal process to “decertify” election results.
A former Republican tops the Democratic ticket for attorney general. Kris Mayes, who previously served on the Arizona Corporation Commission, switched parties in the face of Trump’s growing hold on the GOP. “We have incredibly well-run, safe elections yet the Republican party continues to perpetuate the big lie,” said Mayes in an interview with The Guardian. “There’s been a very clear trend to curtail voting rights and as attorney general I will use my bully pulpit and the courts to fight those efforts.”
- Incumbent candidate: Dana Nessel (D)
- Who we need to elect: Dana Nessel (D)
- Trump’s “Big Lie” candidate of choice: Matthew DePerno (R)
In early 2021, nine individuals misrepresented themselves to persuade election clerks to give them access to voting machines. The group “tested” and tampered with the machines in a desperate search for proof of voter fraud. One of the “prime instigators of the conspiracy” is the presumptive GOP nominee for Michigan attorney general. Matthew DePerno was endorsed by the state party in April; in Michigan, the attorney general candidates are selected by political party conventions and DePerno is expected to receive the formal nomination at the end of this month.
DePerno argued in court that every Michigan voter should be able to request an audit of election results, a last-ditch attempt in a failed lawsuit that demanded a new audit in a contested county. (There were already official statewide audits and a hand recount in the county in question.) Despite this, DePerno has pledged to continue probes into the 2020 election, including investigations into the three women who currently serve as Democratic statewide leaders in Michigan — Gov. Gretchen Whitmer, Secretary of State Jocelyn Benson and Attorney General Dana Nessel.
Complicating the upcoming race, Nessel’s office has asked a special prosecutor to consider charging DePerno’s crew for tampering with voting machines. In contrast to her opponent, Nessel has routinely defended the presidential election results in the state and her responsibility to not interfere with election certification. “That’s the job, to make sure the will of the people is heard and that the election is properly certified,” Nessel said.
- Incumbent candidate: Ken Paxton (R)
- Who we need to elect: Rochelle Garza (D)
- Trump’s “Big Lie” candidate of choice: Ken Paxton (R)
Incumbent Attorney General Ken Paxton (R) launched the legal effort to overturn the 2020 election results in four battleground states. The U.S. Supreme Court denied that motion for lack of standing (meaning, Texas had no basis to challenge another state’s election laws) and the Texas state bar is considering disciplinary action against Paxton for this unprecedented suit.
Additionally, Paxton’s office has spent countless hours and millions of dollars searching for cases of voter fraud. He prosecuted Crystal Mason, a woman who cast an uncounted provisional ballot without realizing she was ineligible because of probation, and Hervis Rogers, a man who waited six hours to vote — a viral feat — though he was ineligible because he, too, was on parole.
Paxton’s other favorite pastime is “judge shopping” around the state of Texas to challenge different aspects of Biden’s agenda. Law professor Steve Vladeck recently filed a “friend of the court” amicus brief criticizing this very act: “The State of Texas has abused the federal courts by intentionally and repeatedly filing lawsuits against the federal government… Those judges have repeatedly issued nationwide injunctions against virtually every challenged action taken by the Biden administration.” Of course, scandal-ridden Paxton still gained Trump’s endorsement.
In a state that’s still more red than purple, Paxton’s legal troubles and extreme stances may nonetheless create enough of an opening for Democratic nominee and former ACLU lawyer Rochelle Garza. On her website, Garza writes, “I will dismantle Ken Paxton’s ‘election integrity unit’ — which is really about enforcing the GOP’s cruel voter suppression measures — and replace it with a Voting Rights Unit under a fully-funded Civil Rights Division. I will ensure voting rights are protected in the courts if there are further attempts to make it harder for any Texan, especially people of color, to cast a ballot.”
- Incumbent candidate: Josh Kaul (D)
- Who we need to elect: Josh Kaul (D)
- “Big Lie” candidate of choice: Eric Toney (R)
GOP nominee Eric Toney didn’t outwardly deny the results of the 2020 election to the same extent as one of his opponents, but Toney has a concerning tone towards the Wisconsin Elections Commission (WEC) and a hawkish approach towards voting mistakes.
“I’m also fighting to hold the [WEC] accountable for their actions in 2020,” writes Toney on his campaign website. Since the WEC issued common-sense guidelines related to pandemic-era voting in 2020, the commission has become a target of the GOP. In light of a radical state Supreme Court opinion banning drop boxes, giving more authority to partisan actors remains a very real threat to Wisconsin’s elections. As the current district attorney in Fond du Lac County, Toney prosecuted five eligible voters who used a UPS store address for voter registration purposes. While it’s clear that these transient residents made an innocent mistake, Toney has labeled himself as “one of the most aggressive prosecutors of election fraud.”
Toney will face incumbent Attorney General Josh Kaul (D). “We need an AG who defends the will of the voters, not who attempts to undermine them,” Kaul counters.
Keep a close eye on several other states.
Attorney General Steve Marshall (R) signed onto Paxton’s anti-democratic effort to overturn election results in 2020. Marshall is one of four incumbent attorneys general on that lawsuit now running for reelection — though, he remains the only one without a Trump endorsement. Marshall led the branch of the Republican Attorneys General Association that sent out robocalls encouraging participation in the Jan. 6 rally, though he stated he was unaware of the calls. During a Senate hearing, U.S. Sen. Sheldon Whitehouse (D-R.I.) asked Marshall whether Biden was the “duly-elected and lawfully-serving president.” Marshall responded, “He is the president of this country” and avoided saying he was “duly-elected” when pressed further. He will face Wendell Major, a Democrat with a law enforcement background, in November.
Attorney General Ashley Moody (R) similarly joined Paxton’s post-2020 lawsuit, despite Moody’s legal team mocking the effort. Moody has been a fervent defender of the state’s omnibus voter suppression law in court. Moody opposed the ultimately successful ballot measure to restore voting rights to individuals who completed their sentence for felony convictions. After the measure passed, Gov. Ron DeSantis (R) pushed for a law imposing a fines and fees restriction. Relatedly, Moody has called for an investigation in a Michael Bloomberg-backed effort to help returning citizens repay outstanding legal fines. On Aug. 23, Florida Democrats will select their nominee for the position.
Former U.S. Rep. Raúl Labrador (R-Idaho) defeated five-term incumbent Lawrence Wasden (R) in the primary election. Wasden had clashed with the Republican-controlled Legislature in recent years and refused to join Paxton’s lawsuit. In contrast, Labrador, a founding member of the House Freedom Caucus, says he would have signed on. During his campaign, he positioned himself as a right-wing “activist” candidate. Labrador will face Tom Arkoosh in November (Arkoosh jumped into the race after the Democratic Party used a placeholder candidate in the May primary). Arkoosh is a 70 year old lawyer who says he has no political ambitions, but simply wants an ethical and competent attorney general’s office.
Kris Kobach (R) is, once again, attempting a political comeback. The former Kansas secretary of state is most well-known as an architect and advancer of voter suppression laws. Along with his anti-immigrant streak, Kobach, as secretary of state, pushed the Kansas Legislature to pass one of the nation’s first modern photo ID laws in 2011. For more than a decade, Kobach has made concerns over widespread voter fraud (a virtually non-existence phenomenon) central to his platform and persona. He has been the most fervent advocate for a policy that lies at the intersection of his anti-immmigration and anti-voting views — documentary proof of citizenship laws to register to vote, a recent concern in Arizona. In 2017, Trump named Kobach as vice-chair of the “Presidential Commission on Election Integrity,” a body set to investigate fraud in the 2016 election.
“Here in Kansas, voters will face a very stark choice for attorney general. They have the option of electing Kris Kobach, a career politician who has promised to focus on his political ideologies. Or, they can elect me, a career public servant,” explained Chris Mann, Kobach’s Democratic opponent.
Sigal Chattah, with racism scandals and a too-extreme-for-Nevadans stance on abortion, will face incumbent Attorney General Aaron Ford (D) this fall. Chattah is deeply embedded within the far-right and has called Paxton “her hero.” Trump has not yet endorsed in this race, but Chattah has already alienated a group of Republicans so much so that they support Ford instead, calling Chattah “an unprepared, dangerous candidate who lacks the experience, foresight, and temperament.”
South Carolina Attorney General Alan Wison (R) rounds out the list of current attorneys general running for reelection who supported the Supreme Court hail mary alongside Marshall (Alabama), Moody (Florida) and of course, Paxton himself (Texas). Wilson, however, has argued that his involvement was more narrowly concerned with Pennsylvania’s voting changes, not allegations of fraud. With Trump’s endorsement, the popular incumbent is poised to take office for a fourth term as he faces no opponents in the general election.