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Harris County to join TDP lawsuit over vote by mail

They do lots of stuff at Commissioners Court.

Harris County Commissioners Court voted on Tuesday to join a lawsuit by Texas Democrats suing Gov. Greg Abbott to expand vote-by-mail in Texas.

The Democratic-led commissioners court voted 3-2 to join the lawsuit. The litigation seeks to allow all Texas voters to cast a mail-in ballot during the pandemic, arguing that absentee ballot restrictions in Texas violate the Voting Rights Act of 1965 and the U.S. Constitution. Texas Democrats filed the suit against Abbott and the Texas Secretary of State in April.


Democrats attempted to leapfrog over the appeals court by asking the U.S. Supreme Court to intervene before the July primary runoff elections, but the justices declined to do so until a decision by the lower appeals court was reached. The Fifth Circuit Court of Appeals is expected to revisit the case sometime this month.

See here for the most recent update that I have, and here for a tweet from Chron reporter Jasper Scherer, which is the only other place I’ve seen this noted. It’s unclear to me what difference it makes from a practical perspective for Harris County to join in, but from a political and symbolic perspective it means a lot. Let’s do hope we hear something from the Fifth Circuit soon.

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One Comment

  1. Re: Harris County joining the federal universal-right-to vote-by-mail lawsuit

    It’s not clear from the reporting what form that participation in the lawsuit will take, or what legal claim is going to be made if the County moves to intervene.

    As it stands, Harris County has already submitted amicus curiae briefs at multiple levels, including in the US Supreme Court (where the only legal challenge involves the 26th Amendment claim, i.e. discriminatory treatment of all under 65 who are not allowed to vote absentee without excuse).

    There are arguably several benefits of Harris County being more actively involved in the VMB litigation:

    First, even if the Dems control commissioners court 3 to 2, the County is nominally non-political, unlike the lead plaintiff (Texas Democratic Party), and represents the entire county citizenry, not just one side of the political divide. That could blunt the ostensible partisan character of the VBM litigation at least somewhat.

    Second, the Harris County Clerk is the official actually in charge of organizing the elections in the best possible way, not just a party (political party) with a vested interest. The latter is necessarily motivated by self-interest that is antithetical to that of its political opponents (though the Republican Party at least has amicus status too). And the Election Clerk has actually a much greater and more hands-on involvement than the Texas Secretary of State, one of the defendants.

    Third, Harris County has the opportunity to show, through its own data and experience, what the logistical challenges are for the elections under COVID-19 conditions, and that both in-person and absentee-voting (mail vote, drop-off vote, drive-through voting, etc.) is needed to optimize the performance and maximize safety. This confers more gravitas and strengthens the claim to administrative expertise relative to that of the Secretary of State, even if the latter is the ultimate authority on election law regs and rules. This is a relevant consideration in regard to the well-burnished principle that the judiciary should defer to bureaucratic expertise in the executive branch, and that judges should not micro-manage the affairs of executive-branch administrators. (Judge Biery has already been taken to task in a highly polemical manner for allegedly taking things into his own hands).

    Fourth, the County is in a position to provide a counter-weight to the assertion of the “State’s interest” by the Attorney General (who represents the state-level defendants, which is to say the Republican-controlled State of Texas), while the administrative burdens of conducting the elections are actually shouldered primarily by the counties/local election officials. Harris County is in a position to argue that the add-on expenditures/cost are already committed AT THE LOCAL LEVEL. This is a big deal because the question of the relevant “state interest” figures large in the traditional framework of constitutional analysis (and associated motions for equitable injunctive relief on an expedited basis), the costs and administrative burdens are an obvious component.


    Republican state government typically invoke the “undue” costs and administrative headaches in litigation that seeks to expand voting rights under pandemic conditions. So, here, that’s not a valid argument because Harris County (and a few others) already are on board for alternative methods of voting and have already undertaken the necessary investments in infrastructure and budget allocation (by Commissioners Court) to handle a shift toward a higher volume and percentage share of mail-in ballots. The “State” in contrast to “local election authorities” actually has little at stake in material and administrative terms.

    Stated differently, the jurisprudential argument that “the political branches” are better suited to handle the exigencies of the crisis and its changing course, and that the judiciary should not interfere with and second-guess the actions of the relevant officials, could and should work in favor of the political “branches” at work here, i.e. Commissioner’s Court and County Clerk. They are the ones primarily facing and having to handle the challenges of pulling off safe elections, not Governor Abbott, not to mention AG Ken Paxton (who is a named defendant for his vote-suppression/voter-intimidation) role in the matter.

    Under the given set of conditions in litigation in Texas, the Republican-controlled State is left to argue the specter of voter fraud as their pretext for suppressing the absentee vote. The other argument in favor of deferring to the policy decisions of the “State” are much less credible because the “Counties” are the relevant actors, so if Harris County gets to develop that point as an intervening party, and has an opportunity to adduce the relevant record evidence in support of shifting a larger portion of ballots from in-person voting to mail-in/early voting, so much the better. At the minimum, it undercuts the Defendant State Officials’ claim that their opposition to expansion of voting by alternative means should be judicially vindicated.


    Additionally, at this point it could be argued that the State of Texas (Abbott et al) are actually responsible for the deterioration of the pandemic conditions in Texas, and have caused an even greater burden on those forced to vote in person (ie, those under 65, who don’t enjoy no-excuse absentee voting privileges under the Texas Election Code) because the State’s failed and ineffective response to COVID-19.

    Governor Abbott’s premature opening and testing/tracking failures have heavily increased the burdens (higher risk of infection due to greater community spread) to the point there is now a much strong argument regarding “state action” that works against the proposition that the State did not cause the COVID-19 crisis, and is therefore not responsible for making in-person voting more burdensome (for purposes of constitutional analysis) compared to voting from home.