Just another quiet Saturday…
Judge Hanen has already scheduled an emergency hearing for Monday morning—without even giving Harris County a chance to file a response brief. This, too, is extremely concerning. It looks like he may be rushing to throw out 100,000 disproportionately Democratic votes.
— Mark Joseph Stern (@mjs_DC) 1:16 PM – 31 October 2020
Two partisan federal judges are already trying to nullify thousands of Minnesota ballots under this radical theory. I am deeply concerned that Judge Hanen, too, will use it to disenfranchise 100,000 Texans on the eve of Election Day. This is frightening.
— Mark Joseph Stern (@mjs_DC) 1:22 PM – 31 October 2020
Mark can be a bit of an alarmist, but that doesn’t mean he’s wrong. For what it’s worth, Rick Hasen thinks this suit is without merit, though again worth worrying about given the deranged nature of parts of the federal judiciary these days.
Mark Stern flagged this new lawsuit filed in federal court which seeks to throw out over 100,000 ballots cast by Harris County, Texas voters who voted using drive-thru voting in Texas. There was an earlier lawsuit in state court seeking to block this means of voting on grounds that it purportedly violated Texas law, but the Texas Supreme Court rejected that claim. This new lawsuit is making the same novel claims under the “independent state legislature” doctrine that any actions by any state court or state agency not specifically authorized by the legislature is an unconstitutional usurpation of the legislature’s power. It’s this same audacious and unproven theory that formed the background for the outrageous 8th Circuit order this week over segregating ballots in Minnesota. The lawsuit has been assigned to Judge Hanen (a judge who had struck down all of Obamacare at one point before being reversed), who has already scheduled a hearing.
On the merits, this case should be a sure loser, but given how crazy things are getting in the federal courts these days, I cannot be 100 percent confident in my predictions. Here are some of the reasons this suit should be thrown out decisively
You can click over and read Hasen’s reasons, and you can read these threads by law professor Michael Morley and Buzzfeed News reporter Molly Hensley-Clancy for more reasons. You should also remember that at the end of the day, Jared Woodfill is a complete moron, and anything that relies on his legal acumen is likely to fall well short of the mark. Again, that doesn’t mean that a pliant federal judge won’t give him what he wants. It just means that would be the only reason why he’d succeed. Democracy Docket has intervened, and Josh Marshall, whose post alerted me to Mark Joseph Stern’s tweets, has more.
In the meantime, the State Supreme Court will also be dealing with this tomorrow.
The Texas Supreme Court drew alarmed attention Friday after directing Harris County to respond to a petition that seeks to invalidate more than 117,000 votes cast in drive-thru lanes.
The court’s interest came as an unwelcome surprise to voting advocates and Harris County officials who were banking on a quick dismissal of the petition, filed by two GOP candidates and a Republican member of the Texas House.
The petition — filed by state Rep. Steve Toth, R-The Woodlands, GOP activist Steven Hotze and two Republican candidates in Harris County — argued that drive-thru voting is an illegal expansion of curbside voting, which state law reserves for voters who have an illness or disability that could put them at risk if forced to enter a polling place.
The court responded by giving Harris County until 4 p.m. Friday to file a legal brief responding to the petition, raising fears that the Supreme Court was giving consideration to tossing out tens of thousands of ballots.
However, it takes only one justice on the nine-member court to request a response to a petition, and there is no way of knowing how many justices were interested in Harris County’s response because the court does not disclose that information.
In addition, before tossing out the votes, the court would have to acknowledge that 117,000 Harris County voters had visited a drive-thru polling site by Thursday night, including more than 42,000 drive-thru votes that were cast since justices first had a chance to stop the practice a week earlier but did not.
In a memo prepared for Harris County on the issue, noted Austin lawyer C. Robert Heath said the bid to void drive-thru votes faces the daunting challenge of overcoming a key legal supposition — that state laws are to be interpreted in favor of preserving the right to vote.
“If a court or other authority were to decide to invalidate those votes, it would require ignoring or overruling more than a century of Texas law,” Heath concluded.
In the brief requested by the Supreme Court, Harris County lawyers argued that there is nothing illegal about drive-thru voting, nor can votes cast that way be considered illegal.
“Uncountable votes are those that resulted from clear fraudulent behavior,” they argued. “There is nothing about an eligible voter casting an in-person vote from their car that renders their vote illegal, fraudulent, or not countable.”
The brief argued that drive-thru voting is just another polling choice with a different structure. Vehicles enter the voting area, typically a large individual tent, one at a time. A clerk checks each voter’s photo ID and has them sign a roster before handing over a sanitized voting machine.
More importantly, the county said, drive-thru voting was approved by the Texas secretary of state’s office before being adopted and was used, without objection, in the July primary runoff election.
Reform Austin also covered this, with a focus on Harris County’s response, so go check that out. This is another reason why we need comprehensive legislation, at both the state and national levels, to clarify, affirm, and assert the right to vote, and to explicitly ratify different methods to expand voting access. If nothing else, that is needed to ward off future bullshit lawsuits like these.
As for this one, I maintain my belief that SCOTX is unlikely to do anything radical. You are free to freak out as you see fit over either of these.
UPDATE: Here’s the Chron story on this.
UPDATE: If you participated in drive-through voting and want to intervene in this federal lawsuit, fill out this form.