Project 2025 and Election Enforcement as a Partisan Weapon (Guest Post by Donald J. Murdaugh)
One of Project 2025’s (“P-25’s”) most striking and underreported provisions is conveniently buried in its recommended administrative changes for the Department of Justice. Page 562 of the “Mandate for Leadership” advises the next conservative Attorney General to shift enforcement of 18 U.S.C. § 241 (Conspiracy Against Rights) from the Civil Rights Division to the Criminal Division’s Election Crimes Branch, “where it belongs.” Section 241 is an exceptionally expansive statute, making it unlawful to “conspire to injure, oppress, threaten, or intimidate any person . . . in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States . . . .”
The Civil Rights Division’s webpage reveals that, despite the broad language of the statute, § 241’s use as a prosecutorial tool has been limited to instances of misconduct or hate crimes by law enforcement or state officials. A brief review of the caselaw shows that some cases of official misconduct have involved election interference, but they also include instances of homicide, drug embezzlement, planting evidence, and more. In fact, former President Donald Trump (or, perhaps, candidate Trump, if the courts determine that post-election speeches fall outside of official action) was charged with violating § 241 for his role in the January 6 insurrection. P-25’s recommendation, therefore, leads to distressing questions about how the statute will be interpreted and enforced if Trump is re-elected. The jurisdictional move and P-25’s discussion of § 241 solely as a criminal enforcement vehicle for election interference suggest that the authors of P-25 believe that the statute’s broad language should cease to protect all civil rights and should instead protect only election-related rights. Something, something, textualism.
Let us put aside the civil rights implications of such a move and focus solely on P-25’s general proposition that election interference cases should move to the Criminal Division, where the focus would presumably be more on putting people behind bars and less on protecting rights. What can we expect in a world with P-25’s election enforcement mechanism in place? Fortunately or unfortunately, we don’t have to speculate too much. The conservative petri dish that is the State of Texas, my home state, has already grown a new pathogen for us to analyze.
In the wake of the 2020 general election, Texas Attorney General Ken Paxton, who somehow survived an impeachment last year for securities fraud and corruption, formed an Election Integrity Unit within his office. Since then, he has nominally targeted allegations of voter fraud and election interference. In reality, though, he has targeted Texas’s cities, which house the largest populations of Democratic voters, and raided the homes of Latino organizers in an effort to suppress the popular will. He hasn’t yet been notably successful: some cases even failed to be indicted by a grand jury. But on November 8, 2022, when Harris County voters encountered abnormally long lines or outright denials as they showed up to vote at polling stations, Ken Paxton felt fresh wind in his sails.
On August 13, 2024, District Attorney Kim Ogg, who presides over Harris County (which encompasses Houston), filed six felony charges (one for theft by public official, five for tampering with a document) against Darryl Blackburn as a result of a two-year investigation into allegations of election interference into the 2022 general election. He was the only person criminally charged for anything election-related, and he was not charged with voter fraud or election interference. In fact, no evidence of partisan tampering was discovered at all. To use DA Ogg’s words, “People are looking for complex, conspiratorial reasons for things happening, and often it boils down to incompetence and greed.” No, Mr. Blackburn wasn’t a deep state agent. His greatest evil? He was bad at his job and worked a second job to supplement his income. Indeed, he wasn’t charged with subverting democracy but instead with wage theft and fudging time sheets. But what really happened, and why did the state’s Republicans go after him?
In November 2022, many Houstonians showed up at polling locations to perform their civic duty, only to wait in line for hours, experience voting machine malfunctions, or be turned away outright. The situation got so bad that over 1,000 votes had to be tossed out due to deficiencies, and a local Texas court ordered a rare rerun of a judicial election where the Republican candidate lost by fewer than 500 votes.
The Texas Department of State reported multiple systematic failures that added up to a catastrophe. Multiple unsynchronized systems yielded different voter registration logs, paper ballot supplies didn’t meet election day demand, equipment malfunctions resulted in time-consuming paper jams, election workers didn’t fill out required paperwork to log and certify certain materials, election judges and clerks were inadequately trained, and (my favorite) the Houston Astros World Series parade caused some locations to delay their opening. Yes, the Astros got in the way of democracy. Even when they win fairly, they can’t avoid a cheating scandal.
What does Mr. Blackburn have to do with any of this? He was a data analyst in charge of ensuring that polling locations had enough paper ballots, and the lack of paper ballots was specifically cited as a reason the election ran so poorly. I want to be clear here: he failed at his job. When you are employed as an election worker, your Super Bowl – or, since we were just talking about baseball, your World Series Game 7 moment – is election day. You cannot mess that up, and he did. His failure was consequential, and I do not mean to minimize the impact of his underperformance. But a criminal indictment far exceeds even the most extreme limits of an appropriate punishment.
The State alleges that Mr. Blackburn held a second full-time job while concurrently working at the now-defunct Harris County Elections Department. But rather than focus on the simple wage theft that was alleged, the thrust of DA Ogg’s press conference was that Mr. Blackburn’s second job necessarily interfered with his duties and caused untold damages to voting rights and wasted tax dollars. Specifically, she said, “While working for the Elections Office, Mr. Blackburn not only stole thousands of dollars from Harris County in the sense that he lied on time sheets; much more importantly, he stole individuals’ right to vote.” When discussing the result of Mr. Blackburn’s failure, DA Ogg noted first that “[t]here are hundreds of thousands of dollars spent in terms of investigations, not just the cost of the Texas Rangers and our prosecutors, but the Secretary of State’s office and private litigants.” Last, to up the ante on her argument, she intoned, “By holding Darryl Blackburn criminally responsible, we can at least attribute criminal responsibility to this individual – a public servant who did not serve.”
There is a lot to discuss here. I will first point out that the impact of Mr. Blackburn’s failure on the election is completely irrelevant to the charges. Whether an election ran smoothly is not a question that will help answer whether he falsified his time sheets or stole money.
Additionally, the assertion that Mr. Blackburn was the cause of a tainted election is simply wrong. He was a single cog in a much, much larger machine. The amount of paper delivered to polling locations depended on the estimated turnout at those locations. Despite doubling the estimated amount of paper required at each location (sending 1,200 sheets instead of the calculated 600 sheets), the initial supply still wasn’t enough at some locations. As mentioned above, there were many, many other problems on that day involving the technology used, lack of coordination, and more. The Texas State Department’s report noted that, of 1,612 calls logged by the Help Desk on the day of the election, only 86 of them related to ballot paper. One polling location called prior to their 7AM scheduled opening to report that it didn’t receive any ballot paper in its initial supply bin; the vast majority of calls came in the afternoon, indicating that the issue was not that paper ballots were not delivered at all (except in one instance) but instead that the primary issue was that someone had underestimated how many voters would show up. Additionally, Pollbook Console, the centralized system that monitored voter check-ins, was overloaded on election day, which meant that supply requirements could not be anticipated at headquarters, which could have otherwise sent resupply missions to locations with high turnout. No matter how focused Mr. Blackburn could have been if he only had one job, he never could have prevented all of those issues.
As a legal matter, I also want to note the malevolent irony that police – who are public servants themselves – are entitled to qualified immunity for civil cases when they intentionally flout the Constitution, whereas a poll worker who is negligent can now face criminal charges for inadvertently violating rights not enshrined in the U.S. Constitution at all.
Mr. Blackburn should not have been charged. These kinds of wage theft cases are almost always handled in civil courts, if they go to court at all. The typical remedy for Mr. Blackburn’s offense, being bad at one’s job and getting paid for it, should normally be losing that job. For a mistake as public as this one was, I could possibly see the State suing in civil court for its money back for work not performed. But the fact that Mr. Blackburn is in the criminal hot seat is pure political chicanery. And that, I reluctantly conclude, is intentional.
The unfortunate reality is that extreme right-wing Republicans benefit tremendously from the kind of media attention a criminal prosecution like this receives. They have been pushing unfounded allegations of mass voter fraud and election interference for almost a decade now, and by charging an election worker with felonies – regardless of his actual contribution to a failed election – the prosecution is trying to make it appear that (1) election interference is real and Republicans are taking a stance to protect us from it; (2) a single person can unilaterally sabotage democracy; (3) the right-wing state will be the only one to do anything about it; (4) the blame of a failed election can fall squarely on the shoulders of some low-level bureaucrat; (5) the politicians who are ultimately responsible for ensuring smooth elections are blameless; and (6) this can and will happen again, so the public should place its trust on the side that will put people in prison. These are all lies. But the lies will be told, regardless of the truth or the gross injustice visited upon a fall guy like Mr. Blackburn.
Perhaps the worst result of this public relations scam is that genuine civil servants who are dedicated to doing the right thing will think twice before they ever go near a polling location again. One of the main issues raised by the State Department’s report is the lack of training its poll workers had received by the time election day came around. When Harris County’s conscientious civil servants flee due to a sudden (but reasonable) fear of prison, the problems will only get worse.
If States are the laboratories of democracy and law, let Mr. Blackburn’s story highlight the result of the experiment P-25 plans to inflict on the entire nation.
Donald J. Murdaugh is a former Army Captain and a member of the class of 2025 at the University of Florida Levin College of Law. This is his second guest post on this blog. His first appeared last spring.