AG Race 2022

2021 CAMPAIGN LINEUP FOR 

ATTORNEY GENERAL RACE IN 2022 

• GOP PRIMARY: Incumbent Ken Paxton, Challengers: Eva Guzman (former Texas Supreme Court justice), and George P. Bush (current Texas Land Commissioner) 

• DEM PRIMARY: Joe Jaworski (former mayor of Galveston) and Lee Merritt (Civil Rights litigator)

RUNNING ASSESSMENT AS OF JULY 19, 2021 

Both parties feature primary contests in this race. Incumbent AG Ken Paxton's personal legal and ethics troubles in office are a key issue at this stage of the campaign and at least part of the reason why the competition to replace him is heating up. He is seen as vulnerable. More so than Governor Abbott.  

The male candidates denounce Paxton for not being fit for the job and promise to restore integrity to the office. Eva Guzman treads more lightly and keeps above the fray with a highly personalized campaign that focuses on herself, rather than on Paxton, and seeks to capitalize on the prestige and respect that come with having served as a judge for most of her professional life. Judging, of course, has little to do with running a large organization in the executive branch, not to mention an office that - under recent Republican stewardship - has become highly partisan and combative. 

In terms of relevant experience and qualifications for the position of chief lawyer for the state, Paxton has the edge over all of them as a previously-reelected incumbent, in addition to enjoying solid support from the religious right due to his strong credentials on the anti-abortion front. While Paxton is despised by his detractors for his legal antics, including his bid to overturn the 2020 presidential election results with a highly unorthodox filing against serveral other states in the SCOTUS, no one can deny that he is a fervent crusader for conservative causes. Indeed, his Republican rivals sound the same conservative themes that figure prominently in Paxton's agenda and litigation record as incumbent AG.  

Four Competitive Males and a Lady Justice  

Polling shows that Bush and Paxton are evenly tied in support among Republican primary voters, and that Eva Guzman trails far behind, possibly due to a lack of name recognition or a lack of salience relative to well known figures in Republican politics. Being prominent in legal circles doesn't necessarily translate into widespread support; at least not when more plausible contestants for the office are already dueling each other, not to mention competing for an endorsement by Trump, with whom Paxton and P. Bush have long ago aligned their own political fortunes. 

Thanks to her position as a judge, Guzman has no such entanglements, and comes to the race for the now highly politicized office of Attorney General with a clean slate and in the posture of an outsider. While she might play that to her advantage, it nevertheless also involves a rather daunting challenge of having to transition from what is nominally a nonpartisan and lofty judicial role to that of a fighter in the rough and tumble of competitive politics; in an arena where dignity, deference, and observance of decorum cannot be taken for granted. On the other hand, Governor Abbott himself provides a model from making the move from the judicial to the executive branch, and Senator Cornyn, too, previously served as a state supreme court justice. 

Visions of Integrity 

As to Democrat Joe Jaworski, he was the first one to announce his bid -- as early as 2020 --  and made Paxton's ethical troubles the centerpiece of his campaign. Now, however, with contested primaries on both sides of the partisan divide, it is not even certain that Jaworski will face off against Paxton in the general election. His Democratic rival, Lee Merritt, is a black lawyer whose principal claim to fame is his track record of advocacy and litigation on behalf of victims of police brutality. The contrast with Eva Guzman, who professes to always stand with the police, couldn't be starker. 

While Republicans harp in unison about the need for election integrity (and other well-publicized shared concerns), and while Guzman joined her Texas Supreme Court colleagues in handing down restrictive election law rulings in 2020, Jaworski promises to set up a divisions in the AG's office to vindicate the civil rights of all Texans, and to turn Paxton’s "wasteful voter fraud division into General Jaworski’s voter access division." While the Republican contenders do not distinguish themselves much in terms of ideology or agenda, Jaworski has concrete ideas for change, and a an action plan with priorities:  . 

MEDIA COVERAGE 

July 16. George P. Bush outraises Attorney General Ken Paxton in primary challenge debut, though Paxton has bigger war chest. Bush started his Paxton challenge with a fundraising lead of $2.3 million to $1.8 million, but Paxton easily maintains the most cash on hand in a primary that also includes Eva Guzman, the former state Supreme Court justice. TEXAS TRIBUNE 2021-07-16 by PATRICK SVITEK. https://www.texastribune.org/2021/07/16/george-p-bush-ken-paxton-texas-2022/

July 13. Civil rights attorney Lee Merritt, a Democrat, launches campaign against Republican Attorney General Ken Paxton. Merritt officially began his Democratic campaign Tuesday with an emphasis on the voting rights battle that caused state House Democrats to leave Texas a day earlier. TEXAS TRIBUNE 2021-07-13 by PATRICK SVITEK https://www.texastribune.org/2021/07/13/texas-attorney-general-2022-lee-merritt-ken-paxton/

July 12. Eva Guzman raises $1 million in first 10 days of attorney general campaign, with some major donor support. The former state Supreme Court justice is one of two Republican primary challengers to Attorney General Ken Paxton, the other being Land Commissioner George P. Bush. TEXAS TRIBUNE 2021-07-12 by PATRICK SVITEK https://www.texastribune.org/2021/07/12/texas-eva-guzman-attorney-general-fundraising/

July 9. Eva Guzman, former Texas Supreme Court justice, joins GOP primary challenge against Texas Attorney General Ken Paxton. Guzman's candidacy adds a new dynamic to the primary that is already unfolding between incumbent Paxton and Land Commissioner George P. Bush. TEXAS TRIBUNE 2021-06-14 by PATRICK SVITEK https://www.texastribune.org/2021/06/09/eva-guzman-texas-supreme-court/ [inconsistent date in URL] 

July 8.  Texas Republicans Are Already Declaring for 2022. Democrats Are Dazed and Confused. GOP challengers have announced bids against Greg Abbott, Ken Paxton, and Sid Miller, while a forlorn Democratic party casts its eyes on Matthew McConaughey. TEXAS MONTHLY 2021-07-08 by Christopher Hooks. 

July 7. Texas Supreme Court Justice Eva Guzman resigns. Her resignation is effective Friday, she told Gov. Greg Abbott in a letter. TEXAS TRIBUNE 2021-07-07 by CASSANDRA POLLOCK https://www.texastribune.org/2021/06/07/texas-supreme-court-eva-guzman-resigns/

Link for Guzman resignation letter to Governor Abbott: 

Eva Guzman resignations letter to Governor Abbott dated June 7, 2021 

effective June 11, 2021 at 3 PM (after Friday morning SCOTX opinion release)  

RECENT JUDICIAL RECORD 

Guzman's Parting Shot on Taxes  

Just before stepping down from the state supreme court, Justice Guzman delivered a dissenting opinion in one of multiple cases in which decisions were released that day. The case involved a disagreement whether real property leased by a charter school is exempt from property taxes in Texas. See Odyssey 2020 Academy, Inc. v. Galveston Central Appraisal District, No. 19-0962 (Tex. June 11, 2021)(maj. op. by Boyd), affirming the judgment of the Houston-based 14th Court of Appeals in No. 14-18-00358-CV, 585 SW3d 530 (Tex.App.,- July 23, 2019). Chief Justice Hecht and Justice Huddle joined Guzman's dissent. 

Recent Opinion Production by Justice Guzman 

During the current 2020-21 Fiscal Year, Guzman authored seven signed opinions for the court (majority), an unknown number of unsigned opinions, and a total of five separate concurring or dissenting opinions. In the prior fiscal year, she penned 8 majority opinions, 7 per curiam opinion, and 2 concurrences with no dissents. Some of the concurring opinions in 2020 involved election law disputes, a topic to be addressed in a separate section below..  

Recent Dissents and Concurrences by Justice Eva Guzman 

ERCOT v. Panda Power Generation Infrastructure Fund, LLC, No. 18-0781, In re Panda Power, No. 18-0792 (Tex. Mar. 19, 2021)(Guzman Dissent,  joined by Lehrmann and Devine); Hinojos v. State Farm Lloyds, No. 19-0280, 619 S.W.3d 651 (Tex. Mar,. 19, 2021)(Dissent by Guzman, who also joined separate dissenting opinion by Blacklock); In Re GXH, No. 19-0959 (Tex. Apr. 30, 2021)(Concurrence by Guzman, joined by Busby).  

 INVOLVEMENT OF AG PAXTON AND WOULD-BE SUCCESSORS 

IN 2020 ELECTION LAW DISPUTES   

Several of the AG candidates were involving in recent litigation of election law disputes in Texas, most notably Attorney General Paxton, litigating in the name of The State of Texas and handling the defense of state officials sued for alleged violations in their official capacities, including himself, the Governor, and Secretary of State Ruth Hughes, in federal courts.  

Eva Guzman, then a sitting justice of the Texas Supreme Court working remotely and meeting over Zoom, participated in the election law disputes that the Supreme Court decided with opinions or dismissed, and wrote separately in two of them to elaborate on her agreement with her colleagues and the Governor. In re State, No. 20-0394 (Tex. May 27, 2020)(mandamus)(Concur by Guzman), Abbott v. Anti-Defamation League No. 20-0846 (Tex. Oct. 27, 2020)(Concur by Guzman, joined by Lehrmann). 

Democratic candidate Joe Jaworski submitted an amicus curiae letter brief in one of the most salient disputes over the conduct of elections during the pandemic in the 2020 election season. See State v. Hollins, No. 20-0729, 2020 WL 5919729 (Tex. Oct. 7, 2020)(per curiam) (prohibiting clerk from  mailing vote-by-mail application forms to voters who had not individually requested them). 

Jaworski Amicus Letter in Support of Vote-by-Mail Promotion
in Paxton v. Chris Hollins case
(Texas Supreme Court Docket for No. 20-0729) 

In his campaign materials and messages, Jaworski takes Ken Paxton to task for his obsession with election security, and proposes to replace Paxton's voter fraud division with one tasked with the enforcement of civil rights laws. In stark contrast to Paxton, Jaworski promises to work on assuring ballot access for Texas voters, rather than making it more difficult and perilous to exercise the franchise. 

Lee Merritt, his opponent in the Democratic primary, echoes the theme of protecting the right to vote. He timed the official announcement of his candidacy to coincide with the Democratic House members' fly-out to Washington, DC, whence they went to block their Republican colleagues' election reform agenda by denying them a quorum, and to push for a federal remedy for restricting Republican-sponsored election laws at the state level. Merritt has not yet come forth with a proposed action agenda of his own, however, so as to give would-be supporters an idea of how the OAG might move ahead with him at the helm. 

Civil Rights vs. Consumer Protection 

Given that one of the formal responsibilities of the OAG is to defend state officials and public employees accused of civil rights violations and other kinds of wrongdoing in civil litigation, campaign commitments by a prospective Attorney General to individual rights are potentially dicey. For Merritt specifically, a successful bid for Paxton's job would essentially mark a switch from the plaintiff side of the docket to the defense.

It would be more credible for a litigator running for AG as a Democrat to champion the rights of consumers on the campaign trail, given that the AG has statutory authority to bring DTPA enforcement actions to protect Texans from being exploited through shady business practices and abuses. Vindication of consumer rights against abusive corporations would not pose a similar conflict of interest. 

STATE-LOCAL POWER BALANCE     

The scope of the respective powers of the state vs. local governments is an ongoing source of contention and struggle between Republicans and Democrats in Texas. Contrary to their purported commitment to local control, the Texas Republicans favor aggrandizement of the powers of the State at the expense of cities and other political subdivisions because the State organs of government continue to remain under exclusive GOP control while most large metropolitan areas are now run by Democrats. To the extent that state power preempts local powers, Republicans are in a position to overrule and countermand what is being done by local policymakers. Unsurprisingly, they push this line of argument in that direction, with the state supreme court getting to have the final say.  

One dimension of this struggle involves Governor Abbott's use of emergency powers under the Texas Disaster Act to impose pandemic policy measures statewide (and to take them back as he saw fit), and his reliance on that authority to prohibit local governments from devising their own approaches to public health in their jurisdictions. Dissatisfaction with local and statewide pandemic-mitigation measures  spurred numerous lawsuits in 2020, several of which ended up in the Texas Supreme Court, thus implicating both AG Paxton's office and Justice Eva Guzman in their resolution. Some of the COVID-related litigation also overlaps with the election law litigation already addressed above.  

[to be continued]