The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Historically, Texas has permitted some forms of curbside voting. With this accommodation, poll workers would hand a tablet inside the vehicle, so people could vote without walking into the precinct. Under Texas law, curbside voting was permissible if the voter is "physically unable to enter the polling place without personal assistance or likelihood of injuring the voter's health." Tex. Elec. Code § 64.009(a).
In the run-up to early voting, several Texas counties considered expanding curbside voting to all registered voters. In light of COVID, the thinking went, all registered voters could claim that entering a polling place would likely "injur[e] the voter's health." At the time, the Texas Attorney General warned that such an expansion of curbside voting would be "unlawful and could result in legal liability for political subdivisions and their officials." He explained that "Fear of COVID-19 does not render a voter physically unable to cast a ballot inside a polling place without assistance."
Despite this warning, the Harris County clerk permitted curbside voting for all registered voters. Over 100,00 curbside ballots were cast. (I reside in Harris County, but did not cast a curbside ballot). No other county in Texas took this risk.
Now, several Republicans candidates and voters in Harris County challenged the legality of this procedure. They filed suit in federal district court, as well as in the Texas Supreme Court. Today, the latter denied a writ of mandamus. This unsigned order was not a ruling on the merits. Rather, there may be certain procedural reasons why mandamus was denied. The Texas Supreme Court may yet issue a ruling on the merits. And the federal district court scheduled a hearing for Monday.
For purpose of this post, I will assume that the Attorney General is correct, and the Clerk violated Texas law. What is the remedy? I can see three possible options.
- Option #1: A court could acknowledge that the clerk violated Texas law, but decide not to punish the voters. Therefore, all the curbside votes should be counted as if they were cast in the precinct.
- Option #2: The Plaintiffs have argued that all the curbside ballots cast by those ineligible to vote curbside should be thrown out.
- Option #3: Since such a large share of votes were thrown out, the entire election could be deemed invalid. The court could decide to order a do-over of the entire county election. This remedy was recently used in Patterson, New Jersey.
Let's consider each options in detail.
Option #1 sounds in estoppel. Registered voters relied on the clerk's interpretation of the law to their detriment. Thus, it would be unfair to punish the voters who did nothing wrong. At this point, it is impossible to notify everyone who cast a vote curbside that their votes were invalid, and they would need to vote in person on Tuesday. Of the 100,000-odd curbside ballots, at least some of them would be valid, even under the Attorney General's opinion. But the bulk–cast based on COVID concerns–would be tossed out. Here, the voters who relied on the Clerk's services would be punished. This remedy would not be limited to Harris County. First, there are statewide federal and state positions on the ballot. Excluding 100,000 votes from Harris County would directly impact the popular vote for the Presidency and the Senate. Second, seats in the Texas House may decide which party has a majority. And, the Legislature will have to take up redistricting soon. If a few Harris County seats flip, the map may look very different over the next decade.
Option #2 would be the most severe remedy, by far. Candidates could argue that Harris county clerk accepted illegal ballots. They would argue that the only way to remedy this violation, given the strict election calendar, would be to simply disqualify the curbside votes. If such a remedy was issued by Monday, in theory at least, voters could cast provisional ballots in person on Tuesday. But we all know that this outcome is unlikely. People who cast curbside votes will likely have their votes nullified.
Option #3 is at once fair and severe. Fair, in the sense that no votes would be nullified. Harsh in the sense that Harris County voters would likely have no say in who is elected President. To qualify for the so-called "Safe Harbor," the Governor would have to certify that there is a contested election by December 8. And the electors would vote on December 14. Then, certificates must be delivered to Washington by December 23. (This CRS report explains the various deadlines).I am very, very skeptical, that Harris County could schedule, organize, and conduct a do-over election in such a short period of time. For sure, there would not be sufficient time for early voting. With Option #3, far more presidential votes would be nullified than with Option #2. And, for practical purposes, if Harris County is excluded, the odds of Biden winning Texas are very, very low.
This situation is different from the traditional election litigation. Usually, parties fight over voter errors. For example, did a voter properly punch a chad? Or did a voter cast two ballots? Or vote in the wrong precinct? Or fail to show ID? Or fail to match a signature? Etc. In my hypothetical, the voters reasonably relied on a promise by a duly elected official–albeit one who established an illegal voter program.
Consider a hypothetical. Let's say that Texas law only permits people to march in foot on a parade route. People have a First Amendment right to peaceably protest. But the government can restrict the time, place, and manner of those protests. Vehicular parade are dangerous. Especially on the Garden State Parkway. It is reasonable to require protestors to be on foot, rather than in their vehicles. Texas's law is valid.
Despite this law, a county clerk decides that, due to COVID, it is dangerous to have people conduct a parade on foot. So he announces a policy in which people can apply for parade permits, in which members would stay in their vehicles. A community organizer announces that the wants to hold a massive vehicular parade on election day. The clerk issues a new policy: rather than having one person request permits for thousands of marchers, each resident in Harris County is asked to submit an individualized request for a permit for their vehicle. And those requests would be granted automatically.
The day before election day, the Texas Attorney General sues the County Clerk, and argues that the issued permits are invalid under state law. The trial court agrees that the Clerk violated state law. What about the remedy? The clerk argues that the vehicle parade permits (which are illegal) should be converted into pedestrian parade permits. That way, people could still exercise their constitutional rights, consistent with state law. In other words, the people should not be punished for the clerk's error. And, there is simply no time to apply for new permits. The parade is designed for election day, and we all know that the results of the election are certified exactly at midnight. (Lord help us all come Wednesday).
The Attorney General argues that the permits were void ab initio, and should be treated as nullities. And, even though there is a constitutional right to protest, the march must be performed in accordance with state law. If the people relied on a rogue county clerk, the remedy is at the ballot box. The voters should hold accountable a well-intentioned, but reckless local official.
I think this hypothetical captures, reasonably well, the situation in Harris County. Option #1 would, in effect, convert an illegal curbside ballot into a legal in-person ballot. The fact that they were cast in a vehicle, rather than in a precinct become irrelevant. And option #2 would, in effect, treat the illegally cast votes as nullities.
I am still thinking this issue through. It is tough. Please email me with any thoughts you may have. This litigation may fizzle out quickly. Or it may blow up quickly.