In the midst of a Republican Party lawsuit against the State of Texas to close its publicly administered primary elections to party members only, Attorney General Ken Paxton has decided not to defend Texas law.

Oddly enough, the person whose literal job it is to represent the State of Texas, Paxton, has actually filed a joint motion to support the plaintiff, the Republican Party of Texas (RPT), instead.

“The unconstitutional law stopping the RPT from closing its primaries is completely indefensible and a slap in the face to the Republican Party and voters,” he stated in an October 9 press release.

The Secretary of State must follow the Constitution by swiftly implementing this consent decree.”

The thing is, Texas law requires the use of open primaries that allow all registered voters in the state to pick a party ballot each primary election cycle, without having to be a party member. This is because voters do not actually register by party in the State of Texas.

Are There More Democrats In Texas Than Republicans?

To close its primaries, the State of Texas would first have to adopt a new voter registration system in which voters join a party upon registration. This, of course, would add additional administrative and financial layers to the way primary elections are conducted in the state.

Open primaries have been the law of the land in Texas since 1905.

Paxton is the state's chief legal officer, which means it is his duty to represent Texas and state agencies in court regardless of how he personally feels about the case. In this lawsuit, he not only is siding with the plaintiff, but he also wants to force Texas voters to join a political party as a condition of voting in its taxpayer-funded primaries.

To be fair, this isn’t the first time Paxton has decided not to do his job. The Texas Tribune reports that he has refused to defend state agencies at least 75 times.

His office allegedly gave Secretary of State Jane Nelson’s legal team less than an hour’s notice that she would have to defend the State of Texas herself. In response, Nelson has hired outside private counsel from Underwood Law Firm and Clement & Murphy (two separate firms) to defend the case.

This is a move Paxton criticized:

Instead of fighting this lawsuit with expensive out-of-state lawyers, the Secretary of State's office should respect the will of Texas voters and defend their freedoms by creating a process that will allow the RPT to immediately close its primaries.”

Notably, he has not articulated when or how Texas voters expressed such a desire to register their party affiliation with the government, or to have the government pay for a primary that only serves the members of a political party. 

He may, however, be referencing the RPT’s desire to close its primaries based on their vote at the party’s state convention in 2024. GOP leaders had tried for years to close Texas primaries, but did not gain enough support even among their convention-goers until last year. 

Paxton’s decision points to a clear conflict of interest. He has confused the will of his party with the will of Texas voters. He is also running against incumbent U.S. Senator John Cornyn in 2026, a race in which a closed primary, presumably, will be to his benefit.

So that leaves Paxton’s fellow Republican, the highly regarded Secretary of State Jane Nelson, with the responsibility to do his job. Her office states that it is committed to “fair, orderly and legal elections,” and notes that the state is already making preparations for the March 2026 primary in accordance with current law.

Nelson has served in public office for 33 years, beginning in 1992 when she was elected to the Texas Senate, representing District 22, followed by District 9, and then District 12 from 2003 to 2022.

She was appointed Secretary of State on January 5, 2023.