Update, Nov. 2, 2020, at 3:46 p.m. EST: U.S. District Judge Andrew Hanen refused to halt drive-thru voting in Harris County on Monday, finding that the plaintiffs have no standing. “I’m not happy with that finding,” Hanen said, “but the way I look at it, the law requires it.” The judge noted that he “probably” would have prohibited drive-thru voting on Election Day if the plaintiffs had standing, but would not have thrown out any ballots. (At least 127,000 people had voted drive-thru by Monday.) Hanen also advised Texans not to vote drive-thru on Tuesday to ensure that their votes will be “valid.”
Original story: Texas Republicans have asked a federal judge to throw out at least 117,000 ballots cast in Harris County, a heavily Democratic area that has experienced an unprecedented surge in early voting this month. The brazen effort to undo legally cast ballots in a diverse, populous county is an eleventh-hour attempt to diminish Joe Biden’s chances of carrying the swing state on Nov. 3. Republicans claim that Harris County’s use of drive-thru voting violates the U.S. Constitution, requiring the judge to throw out every ballot cast this way—more than 117,000 as of Friday. This argument is outrageous and absurd. But the case landed in front of U.S. District Judge Andrew Hanen, one of the most notoriously partisan conservatives in the federal judiciary. Democrats have good reason to fear that Hanen will order the mass nullification of ballots as early as Nov. 2, when he has scheduled a hearing.
Because Texas strictly limits mail-in voting, Harris County—which has a population of over 4.7 million people—has sought to make in-person voting safer during the pandemic. Harris County Clerk Chris Hollins, who runs the county’s elections, established 10 drive-thru voting locations for the 2020 general election. Drivers pull into a large tent, where election officials confirm their identity, then give them privacy to vote. The process has proved wildly popular.
Harris County raised the idea of drive-thru voting in June, and Texas Secretary of State Ruth Hughs promptly approved it. The county tested it in July and approved it in August. Yet Republicans did not contest drive-thru voting in court until Oct. 15, two days after the start of early voting. On that day, the Harris County Republican Party, joined by several GOP operatives, asked the Texas Supreme Court to halt drive-thru voting. The court, which is entirely Republican, refused, over a single dissent. Republicans then went back to the Texas Supreme Court, asking it to toss out every ballot cast via drive-thru voting. The court is currently considering that request, though it seems unlikely to side with the plaintiffs given its previous decision.
So Republicans ran to federal court. On Wednesday, they asked Hanen to declare drive-thru voting unconstitutional and void every ballot cast this way. They relied upon a radical theory that is quickly gaining popularity among conservative judges. Republicans alleged that the state Legislature has sole authority over election law under the U.S. Constitution. They also claimed that the Legislature never approved drive-thru voting. As a result, they argued, the procedure is an unconstitutional usurpation of the Legislature’s power, meaning every ballot cast via drive-thru voting is illegitimate.
There are so many flaws in Republicans’ argument that it’s hard to know where to begin. The GOP operatives probably don’t have standing to challenge a voting procedure that merely makes it easier and safer to vote. But leave that aside and look at the merits. The U.S. Supreme Court has repeatedly ruled that the legislature does not have sole authority over elections. To the contrary, it has held that different parts of the state government can regulate voting procedures. Thus, the lawsuit’s chief claim—that Harris County has infringed on the Legislature’s constitutional rights—is simply false.
But even if it were true, the lawsuit would still fail, because the Texas Legislature has authorized drive-thru voting. State law explicitly allows counties to create temporary polling locations “in any stationary structure,” including a “movable structure.” Drive-thru voting takes place in large, stationary tents that obviously fit this definition. Indeed, other Texas counties have set up stationary tents at walk-in polling locations to provide extra booths to early voters. No one seriously argues that it is illegal to use tents for walk-in voting. So why are they illegal to use for drive-thru voting?
Republicans cannot provide an answer because there is none. That’s why Texas’ secretary of state approved drive-thru voting, informing Harris County election officials that they could use it for the general election. Republicans are trying to conflate drive-thru voting with curbside voting, a separate procedure subject to a different slate of regulations in Texas. They are lying. Harris County’s drive-thru voting is fundamentally distinct from curbside voting; it more closely resembles traditional in-person voting, with voters entering a polling place in their cars instead of on foot.
As a backup claim, Republicans also alleged that Harris County ran afoul of the equal protection clause, as interpreted in Bush v. Gore, because officials in that county offered a way to vote that other counties in Texas did not. Because Bush v. Gore is not precedent, this argument is utterly frivolous. If Bush v. Gore were precedent, the argument would still be frivolous, because that decision never said counties within a state could not provide different voting procedures. The nuts and bolts of voting vary widely across counties within states, and no court has ever suggested that a county violates equal protection when it makes voting easier in compliance with state law. Bush v. Gore involved vote counting, not vote casting. No SCOTUS precedent supports the proposition that voting procedures must be uniform across an entire state. Some smaller, rural counties in Texas, in fact, have a much easier time voting by mail because of a Republican-implemented rule that allows just one ballot drop box per county.
There are two more reasons the lawsuit should fail. First, Republicans brought this case nearly four months after Harris County announced its intent to provide drive-thru voting this fall. Yet the Republican officials only brought their lawsuit on Oct. 28, as early voting neared its end in Texas. More than 117,000 eligible voters have taken advantage of it, and will be disenfranchised if the lawsuit succeeds. Under a doctrine known as laches, litigants cannot wait to bring a claim until the last minute, then ambush their opponents with a surprise lawsuit. Republicans’ four-month delay in suing Harris County should be enough, on its own, to doom their case. Second, the U.S. Supreme Court has repeatedly warned lower federal courts not to alter voting procedures shortly before an election. Republicans are now asking a federal court to shut down drive-thru voting just before Election Day, when it is in the highest demand, in addition to a request to invalidate votes that have already been legally cast. That request is precisely the kind of preelection challenge that SCOTUS has forbidden.
And yet there is good reason to worry that Republicans will prevail, at least initially. Hanen, the federal judge overseeing the case, is a rabid partisan. During the Obama administration, Hanen attempted to dox more than 100,000 immigrants living in the U.S. and chastised the Justice Department for declining to prosecute an immigrant mother. His behavior on the bench radiated partisan bias. Now Hanen holds the fate of more than 117,000 ballots (and counting) in his hands. Alarmingly, he scheduled a hearing in this case for Monday morning—without even giving Harris County a chance to file a response brief. It is possible that Hanen is rushing to throw a wrench into Texas’ election, purporting to void a vast number of votes in a critical battleground state.
However Hanen rules, his decision will be appealed to the 5th U.S. Circuit Court of Appeals. Thanks to President Donald Trump, the 5th Circuit is one of the most extreme and partisan appeals courts in the country and an avowed enemy of voting rights. Its members may be eager to seize upon this case to prevent Joe Biden from carrying Texas. At that point, only the U.S. Supreme Court could end Republicans’ mischief. And SCOTUS’ ultraconservative bloc has already expressed its zeal to throw out as many Democratic ballots as possible under the theory that only legislatures get to run elections.
The 2020 election is entering dangerous territory. Harris County is key to Biden’s Texas strategy, and its residents have already voted in record-shattering numbers. It is heavily Democratic, which makes it a prime target for GOP voter suppression. Republicans think the federal judiciary will thwart a Biden victory in Texas. If they prevail, they will have stolen an election in broad daylight.