Why top Texas election denier Ken Paxton could cause chaos if he loses his Senate race

Texas’ top election denier, its GOP candidate for the U.S. Senate, and its most powerful attorney are all the same person: Attorney General Ken Paxton (R).

Paxton currently trails his Democratic opponent, state Rep. James Talarico*, in recent polls. Democrats flipping reliably red Texas would be an earthquake in a year that’s trending toward a blue wave in Congress.

As the state’s top attorney, Paxton is armed with a unique suite of powers to challenge the outcome if he loses, making him far more of a threat to democracy than the average election denier on the ballot this year. Texas law gives Paxton the power to probe and prosecute alleged election crimes, as well as to seek a court order letting him seize ballots. And nothing in state law appears to require his recusal from investigations touching on his own political interests. 

Meanwhile, Texas Republicans will likely employ a barrage of voter intimidation and disenfranchisement tactics during the voting and counting process to sway the tally in Paxton’s favor.

Legal experts interviewed for this story all stressed two things equally. First, Paxton has destructive election-interference tools at his disposal, and he’s proven his willingness to use them. Second, they have confidence that state and federal courts are up to the task of protecting the will of the voters.

Of course, a Texas post-election legal battle is not a certainty. Paxton could win the race. Or he could lose it and accept the results. 

That said, there are plenty of reasons to expect that he would refuse to accept a loss. A loyal ally of President Donald Trump, Paxton spoke at Trump’s Washington, D.C., rally shortly before the Jan. 6 attack on the U.S. Capitol. Paxton’s lawsuit seeking to overturn four other states’ 2020 presidential election results so egregiously misrepresented the facts that the Texas State Bar filed a disciplinary action, accusing him of professional misconduct. He was impeached by the GOP-controlled Texas House of Representatives in 2023 for abusing his office. (The Texas Senate later acquitted him.) And most recently, the state’s top election official — an important check on potential interference — was ominously replaced this summer without explanation.

Paxton and Talarico’s campaigns did not immediately respond to requests for comment. 

Mimi Marziani, a Texas voting rights expert and attorney who has represented nonprofit groups against Paxton’s anti-democratic attacks, summed up the potential risks — and safeguards — as the Senate race enters its final stretch. 

“It is prudent for everybody – lawyers, candidates, pro-democracy groups, the press, everyday voters – to be kind of hyper-aware, particularly as we’re in an election cycle where it looks like our statewide races are going to be the most competitive they’ve been since the mid ‘90s,” Marziani said. “That is just kind of a recipe for chaos and attempted extreme tactics, when you have individuals in a political party that’s desperately trying to hold on to power and when that power is being threatened for the first time in decades.” 

“And at the same time,” Marziani continued, “I do think that people should take comfort in the fact that there are systems in place. We’ve seen these systems, the legal systems, play out in favor of the rule of law and our democracy in many other states over the years.”

Criminal investigations

If Paxton loses and does not accept the results, he will have two options available to all candidates — a recount if the margin is narrow enough, or contesting the election in court. 

Beyond those, the Texas election code gives the attorney general more options to investigate and prosecute possible violations of state law connected with an election. That means that Paxton, as a candidate, will have unusually powerful tools to investigate his own race, even without legitimate evidence of any crimes.

While the attorney general’s office gets “a thumb on the scale when it comes to litigating some of this stuff,” the final outcome is “still subject to the court system and to the rules,” Marziani said, adding that in some instances state and federal judges have slapped Paxton’s hand “pretty damn hard.”

Jonathan Fombonne, an election law expert and former Harris County Attorney, said there’s reason to believe that Paxton could initiate election investigations, even without evidence of a crime.

“What we’ve seen with the attorney general is that he talks a lot about voter fraud but doesn’t point to any significant numbers of examples — but that’s not necessarily going to stop him. Similarly, there’s authority under the election code for him to do things like, for example, criminal investigations,” Fombonne said. “I don’t think, even if there’s no basis to institute an investigation or prosecution, that’s going to stop him.”

The Texas election code gives Paxton the authority to prosecute criminal offenses related to an election, launch a criminal investigation based solely on his own initiative, direct the Texas Department of Public Safety to assist with an investigation and seek a district court order to impound ballots and other election records. 

For example, Paxton could file criminal complaints against election officials or even individual voters he accuses of fraud.

Even if a potential criminal investigation does not impact the final result of an election, it could leave a trail of wreckage behind — including less public confidence in elections, residents accused of illegal voting, local officials accused of election crimes and new unprecedented scenarios to reckon with in the future.

Ballot seizures

This year, election experts and officials across the country have had to prepare for the first time for attempted ballot seizures — a new threat that was unheard of until now. In a January raid fueled by conspiracy theories, the FBI seized ballots cast in Fulton County, Georgia’s 2020 election. One month later, a GOP sheriff in California seized 650,000 ballots cast in a 2025 statewide referendum after a judge allowed him to proceed with dubious search warrants, violating a California law that prohibits removing ballots from election officials’ custody.   

Notably, while Texas law gives the attorney general the power to ask a district court to seize ballots, it also orders the ballots to remain in the custody of the court, not the attorney general.

Joaquin Gonzalez, a Texas voting rights attorney and law professor at St. Mary’s University School of Law, said the attorney general’s office sought to block counting of provisional ballots in the past, and could attempt a similar move again.

“If on election night it’s super close, you could envision many scenarios in which the AG could try to seek some sort of injunctive relief over further counting of mail ballots or the way that provisional ballots are cured or counted,” Gonzalez said.

If the attorney general’s office sought a court order to seize or segregate voted ballots, it would be a quick-moving case and voters would be counting on the courts to protect their ballots.

“Sometimes things are being thrown at them at the last minute, [courts] don’t have time to go through everything, and it’s easy for them to say, ‘Well, the attorney general’s office is saying something is happening. I will grant a writ of mandamus or an injunction, pause things or let things get delayed for a bit,’” Fombonne said.

“My concern is not so much that in the end the right person won’t win,” he continued. “It is that a bad actor with the right skills and the right knowledge can throw all sorts of wrenches in the works, and that, in the end, they can really interfere with what’s supposed to happen.”

Safeguards in place

Fortunately, local election officials are on heightened alert for potential issues, Gonzalez said. But voters have a role to play as a safeguard, as well.

“A lot of times these things sort of fall under the radar because they’re technical and wonky,” Gonzalez said. “But I think people need to also be ready to mobilize to ensure that the votes that they cast get counted.”

While Paxton could pressure fellow Republican officials to disrupt the counting or canvassing of votes, he may not be able to count on them to go along with his plan — particularly if other Republicans like Gov. Greg Abbott (R) won their statewide elections and therefore had little incentive to question the same ballots.

“With the governor being on the ballot, that will be an interesting soap opera that played out if it did go down that way, especially if those results are split and the governor wins and the AG loses,” Chris McGinn, executive director of the Texas Association of County Election Officials, said. “So that would be very interesting.” 

And any county officials who might consider refusing to certify results would quickly discover that it’s a ministerial duty — meaning that courts can compel them to certify the election.

Ultimately, David Becker, an election law expert and executive director of Center for Election Innovation & Research, said that while Paxton’s 2020 litigation was “incredibly troubling,” he would not be able to overturn a legitimate and verified election outcome.

“We’ve been through more challenges than we’ve ever faced with regard to election conspiracy theories and election denial in the last six to 10 years,” Becker said. “And in all of that time, there has still not been a single case where an election loser has been able to somehow create a victory for themselves.”

*The Elias Law Group (ELG) is retained by the Talarico campaign. ELG Firm Chair Marc Elias is the founder of Democracy Docket.