Some tentative thoughts on possible remedies in the Harris County curbside voting case.

Option #1: Count the votes. Option #2: Discard the votes. Option #3: Hold a do-over election.

|

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.

NEXT: Why this Religious Freedom Case is Different From the Others [updated with an important qualification]

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. The language “likelihood of injuring the voter’s health” becomes “physically unable to cast a ballot inside a polling place.”

    Can anyone say, with a straight face, that interpreting “likelihood of injury to health” as being equivalent to “physically unable to cast a ballot” is a SINCERE interpretation of this text or even a slightly plausible interpretation? It is completely off the wall.

    1. Hush, don’t worry about it. Now that he’s run out of excuses for kissing Amy Coney Barrett’s backside, Blackman’s focusing on the next career opportunity that’s fallen into his lap: the substantial chance that the presidential election in Texas will be decided by these 100,000 votes in Houston. I’m sure tomorrow we’ll have a follow-up post explaining why, on further reflection, option 2 is the only just outcome here.

    2. Can anybody, with a straight face, argue that a one in ten thousand risk constitutes “likelihood”?

      1. I would think that if there were devices installed at all polling places that would randomly kill 1 in 10,000 people that attempted to vote that everyone would agree that was extremely dangerous and that everyone should be allowed to vote curbside.

        So…I think the answer to your question is yes, 1 in 10,000 can definitely be considered a “likelihood” albeit not a very high one.

        1. The chance of dying in a car crash is 1 in 103. 100 times more likely.

          1. Yes, and nobody is forced to drive a car if they don’t want to.

            1. And no one is forced to vote.

              But, if you need to drive to the polls…

          2. You mean, 1 in 103 on election day?

          3. …and you have a 1 in 1 chance of eventually dying (100x more again!), which is equally irrelevant. You know your argument is pretty terrible if you have to compare lifetime odds vs. per-event odds to make a point. If 1 in 10,000 people were to die voting, that would substantially exceed all other causes of death combined on election day.

            To come back to actual small probability events, think about the aviation industry. They make all sorts of safety-related changes designed to reduce the “likelihood” (and they use this word explicitly) of accidents, even though the results of each change are generally quite small. Similarly, if we were talking about a disease that was nearly 100% fatal like Ebola, I’d think almost everyone would agree that a 1 in 10,000 chance of getting it was something reasonable to keep people safe from.

            And to be clear: I’m just trying to answer Brett’s question, not suggesting that going into a polling place is so dangerous that most people need to avoid it.

            1. Look, I just pulled that number out of my ass. The point is, most people regularly do things that are every bit as “dangerous” as walking inside a polling place to vote. Grocery shopping, for instance.

              So it’s pretty clear that most people do NOT have a valid excuse under this law. It’s meant for people who are handicapped, or immune suppressed, or something like that, not average people who are just freaked out thanks to hysterical coverage of a pandemic.

              1. Once again, you are conflating “curbside voting” with the “drive-thru” process, which is essentially no more than arriving at the polling place and voting in a car rather than on foot.

                What’s the BFD?

                1. Actually, if I understand the clerk’s position correctly, “drive through” is a misnomer; you can vote in the “drive through” polling area on foot or by bicycle as well as from a car. The salient point is that it’s effectively outdoors, significantly reducing any COVID risk.

            2. If I remember properly, Brett’s question was simply this

              “Can anybody, with a straight face, argue that a one in ten thousand risk constitutes “likelihood”?”

              Again, we’re not putting any conditions on the time or anything like that. Just is one in 10,000 likelyhood.

              I’m just pointing out the risk of dying in a car crash. If you want to have more fun with it, you can point out that the risk of dying in a car crash in a given year is roughly 1 in 10,000. Since people vote every 2 years (roughly)…. it’s about the same. Driving versus “voting”

              The actual risk of dying due to coronavirus from a polling place is much much lower than 1 in 10,000.

              1. Again: it’s the risk of injury, not the risk of dying, that’s possibly relevant. (For some reason right wingers seem to think that if you don’t die from Covid then there’s no issue with it.) But only possibly relevant, because that’s the standard for curbside voting, not for drive through voting.

                1. If we’re going by injury rate, your chance of being injured in a car crash is roughly 1 in 100 in a given year. (Roughly 3 million non-fatal injuries due to car crashes in the US in a year)

        2. You’re actually biasing the issue in Brett’s favor by framing it that way. It’s the risk of injury to health, not risk of death, that the rule covers.

      2. “Can anybody, with a straight face, argue that a one in ten thousand risk constitutes “likelihood”? ”

        How did you come up with that number, you bigoted rube?

        1. The same place you earned your law degree. The internet.

          1. You seem cranky. Fretting about the next campaign of the settled culture war? Aware of the wages of bigotry, backwardness, and childish superstition? Unhappy about being on the wrong side of history?

            1. Arthur…I would like to take your electoral challenge. Can you please repost your challenge? I intend to win. 🙂

              And further, I would like to collect in person.

  2. Has anyone proposed actually punishing any voters? Seems implausible. I’d expect the worst case would be the ballots being invalidated. I’d suggest provisional ballots on Election Day would be a reasonable safeguard against that.

    1. It may not be punishment in the sense that it is an intentional harm for wrongdoing, but it is in fact a harm perpetuated on the voter. Likely without notice or time to remedy.

      Imagine for a second the state took your guns without notice because your dealer did not comply with state regulations. Wouldn’t you feel harmed or punished for their wrongdoing?

      1. Yeah, and that’s exactly what would happen. If the FFL didn’t comply with the NICS for whatever reason, ATF would have no issue confiscating the guns until the issue was corrected, and you people would cheerlead that.

    2. You’re full of crap. Just like the TX GOP.

      Just count the damn votes.

      Incidentally, Balckman’s discussion of “curbside voting” is, unsurprisingly, inaccurate. This was drive-thru voting, fully authorized by Texas law.

      If you want to understand why some of us rage at GOP voter suppression just look at this case.

      And if Blackman, as I suspect, thinks the votes shouldn’t count, that just proves, again, what a Trumpist jerk he is.

      1. As long as the “damn votes” are people whose family was in America prior to the illegitimate 1965 Immigration and Nationality Act, sure.

      2. Incidentally, Balckman’s discussion of “curbside voting” is, unsurprisingly, inaccurate. This was drive-thru voting, fully authorized by Texas law.

        Oh, fascinating. Care to cite that Texas law? They’re all written down and conveniently numbered for circumstances just like this, you know.

    3. Has anyone proposed actually punishing any voters? Seems implausible. I’d expect the worst case would be the ballots being invalidated. I’d suggest provisional ballots on Election Day would be a reasonable safeguard against that.

      Oh fuck off. That’s a ridiculous rationalization that only you could come up with.

      Of course it punishes voters. Instead of having their presumably perfectly legal ballots counted they now have to go and stand in line on election day, if they can get the time, to vote again.

      Look. There’s no indication or even allegation, AFAIK, of fraud here. So the obvious, reasonable, sensible, fair, thing to do is count the votes. But GOP assholes don’t want that.

      Well, fuck them. Count the votes.

      1. The crime is on the part of the election administrators, but that doesn’t make it not a crime, or those votes legal votes.

        “Just count the damn votes” is kind of like a robber’s, “Just give me the damn money.” Just give me what I want, and screw what the law might say.

        I offered a reasonable accomodation. What I don’t think we should do is just blow off the law. But Democrats do seem to be in full “blow off the law” mode right now, don’t they?

        1. Blackman doesn’t even bother to argue whether it’s actually against the law, just assumes it.

          By this clever trickery, he has convinced you.

          Despite protestations, it is quite clear the GOP wants as few people to vote as possible. And you’re right along with them.

          1. It’s also funny that Brett is so incensed about violating the law when granting this type of relief at this stage would also be against the law.

            1. Brett and Blackman make a fine pair — The Ghosts Of Clinger Past and Clinger Future, taking cameo turns as the Ghost Of Clinger Present.

              Enjoy the waning days of voter suppression, White supremacy, White majority, superstition-laced gay-bashing, anti-immigrant cruelty, bigoted wall-building, and the other elements of being a vestigial movement conservative misfit in modern America, gentlemen.

              1. Didn’t you get the memo? Of course, you did. We can be any race, sex or intersex is most expedient at any time! If it benefits me to check the box, why not? Rev. Clinger around Uranus.

          2. “Blackman doesn’t even bother to argue whether it’s actually against the law, just assumes it.”

            As I read the article, he makes that assumption only so that he can concentrate on discussing the possible remedies in the event that the plaintiffs prevail. He doesn’t even seem to particularly favor any one of the remedies he discussed.

        2. Fuck you, Brett. You’re off the deep end. You’re buying this whole, “They can just vote again” crap. That’s not a “reasonable accommodation.” That’s ridiculous, even for you.

          The voters, unlike your robbers, didn’t do anything wrong. They voted in what they had every reason to believe was a legal fashion. In fact, the TX Supreme Court, not exactly an arm of the Biden campaign, said it was fine.

          But now some GOP assholes are coming up with reasons for the federal courts to get involved. Never mind the treasured “Purcell principle” of not confusing voters near the election. Never mind federalism.

          Just steal the election any way you can. That’s the modern Republican Party, and you and your fellow Trumpists are all in on it. It’s disgraceful.

          1. No, the Texas Supreme Court did not say it was fine. They didn’t rule on the merits. If this type of thing happens and the votes are counted, what is the incentive for rogue election officials to not do it again?

            1. If indeed the election officials broke the law, you prosecute the election officials. You do not disenfranchise 127,000 people who relied on the election officials for accurate information.

              1. The election officials were voted for by the people whose votes would be tossed. Sorry liberals, but there should be consequences for selecting bad election officials.

                1. Except that voting is a fundamental right, which means you adopt the remedy that impacts on it the least, not the greatest.

                  1. Voting is not a fundamental right. The Constitution does not grant such a right. There is only a right to not have voting abridged based on a few things. Election official mistakes is not on that list.

                    1. So your claim is that there would be no constitutional violation if a state decided to abolish voting altogether? Because if that’ s your position, then you’re just nuts and have a nice day.

                    2. When it comes to President, absolutely, there’d be no constitutional violation.

                      For other offices? They can curtail the franchise, but there’s a list of things they can’t do it on the basis of:

                      Race, color, or previous condition of servitude. (15th amendment)

                      Sex, 19th amendment.

                      Ages greater than 18, 26th amendment.

                      Failure to pay a poll tax. Harper v Virginia State board of elections

                      Literacy tests were outlawed under the “time, place, and manner” power of Congress, but are not unconstitutional, if honestly administered.

                      If a state were to limit the franchise on some other basis, they’d likely be free to do so, but the 14th amendment would proportionately reduce their representation in Congress.

                    3. But the claim that voting is not a fundamental right implies that self governance is not a fundamental right. So if Alabama decided to pass a law declaring that Republicans will be in power in state government in perpetuity, or California did the same for Democrats, what possible argument could there be that that would be unconstitutional if voting isn’t a fundamental right? Why not just cancel elections altogether and allow the current legislature to elect its successors?

                    4. There’s an argument that the Constitution requires a republican (small “r”) form of government, and that would preclude what you’re suggesting. That doesn’t translate to a general right to vote.

                    5. If it doesn’t translate to a general right to vote, then how else would a republican form of government be implemented? Some process has to exist to put government officials in place.

                    6. “But the claim that voting is not a fundamental right implies that self governance is not a fundamental right.”

                      What exactly does a “fundamental” right mean?

                      My own opinion is that a right is fundamental if it would exist even in the absence of government, could be exercised in a state of nature.

                      Voting can’t be a “fundamental” right, because it doesn’t even exist in the absence of an office to vote on, or outside the context of a current election. It’s a procedural, structural right in the context of a specific government. You can’t wake up one morning in April and decide, “I’m going to vote today!”

                      Of course, even if not fundamental, it’s still a right, and can be violated. And often is, though not by laws that require you to vote in person on a specific day. By laws that constrict WHO you can vote for!

                      When this country was founded, it was quite clear that, if you did have the right to vote, you could vote for anyone you damned well pleased. Try doing that tomorrow, in California.

                    7. “If it doesn’t translate to a general right to vote, then how else would a republican form of government be implemented?”

                      The point isn’t that there’s no right to vote. It’s that it’s not the sort of right which is unconditional.

                      I’ve got a fundamental right to free speech. That means the government can’t tell me I can only speak in a specific place, at a specific time, using only words found in a dictionary they’ll issue.

                      I don’t have to prove who I am to speak, or that I haven’t already spoken today. So who I happen to be is irrelevant, the government can’t demand that I identify myself before doing it.

                      By contrast, because the right to vote is only a structural right in the context of a democracy, there are numerous reasonable restrictions. I can only vote where I reside, once per election, casting my own vote. So identifying myself is fundamental to it.

                      Because casting the vote is associated with a particular election in a particular place, and consumes government resources, time and place restrictions are reasonable.

                      You’re claiming this is a kind of absolute right, not subject to balancing. That’s a reasonable way of looking at rights like freedom of speech, gun ownership, freedom of religion, because they’re not tied to the existence of government, don’t inherently consume government resources, and aren’t naturally tied to a particular place and time.

                      It’s not a reasonable approach to voting.

                    8. But “rights” is a meaningless concept without some sort of enforcement mechanism, otherwise you have whatever rights you have the ability to defend. If you think you have free speech, and I think you don’t, the conflict will be resolved by whichever of us has the biggest weapon, and that’s not what rights are about at all. The government may not be the source of your rights, but it sure is useful for preserving them.

            2. None.

              Who cares?

        3. Brett, blowing off the law is what the plaintiffs and court would be doing if they invalidated the votes. It’s blowing off the law of laches, Pullman abstention, Rooker-Feldman…

          1. ” Tex. Elec. Code § 64.009(a)” is a law.

            Laches, Pullman abstention, these are doctrines.

            1. I was going to say something sarcastic, but I can’t even do that. This is literally the dumbest thing I will read on this thread.

            2. @Badlegaltakes

          2. Sincere questions. IANAL
            Laches: Who would raise this? The defendant is the county clerk, presumably. In what way would a delay in filing prejudice the clerk?
            Rooker-Feldman: Does this doctrine apply to cases which have not been judged on the merits in state court?
            Pullman abstention: this seems like a bit of a Catch-22. The TX supreme court may yet rule on the merits, but may not, if I understand correctly. Might the federal district court, at its discretion, hear the case with the recognition that waiting on the TX SC would effectively moot it?

            Also, I’m not entirely convinced that the voters who participated are without some responsibility for the situation. The relied on potentially bad information from the Clerk, sure, but aren’t they presumed to know state law? Also , the TX AG put out a press release saying “don’t do this, we think it violates the law” prior to the start of voting.

            1. Laches also includes prejudice against the rights of third parties that have vested since the claim arose, in this case the drive-thru voters. These voters would be able to intervene in the suit, since their right is at stake, and indeed they did.

              Under Pullman Abstention, if the federal question only comes about depending on an interpretation of state law, then the Court should abstain until that is finally resolved. Here, it has not been finally resolved.

              You actually have a good point about Rooker-Feldman. Under Exxon v. SABIC, parallel proceedings where state court litigation has not been exhausted Rooker-Feldman does not act to bar jurisdiction, although there are traditional preclusion doctrines that may or may not apply due to the state court litigation.

        4. Texas Supreme Court disagrees that there’s a crime at all.

        5. The crime is on the part of the election administrators, but that doesn’t make it not a crime, or those votes legal votes.

          There’s no crime either way.

    4. That would have to be combined with an effective way to ensure that all the ineligible folks were notified, but none of the eligible ones.

    5. As of November 2nd, those 100k+ ballots are considered legal and will be counted.

      There is no time for the state to notify any of those voters that their ballots have been tossed, so unless those folks are glued to election news, they won’t know that they need to vote in-person tomorrow.

      AKA, tossing the ballots will very likely disenfranchise at least some, if not most, of those voters.

      I’d call disenfranchisement a “harm”, wouldn’t you?

      And it’s not like the plaintiffs don’t know this. They had weeks to file with federal courts after they lost in state courts. They deliberately chose to wait so long so that if they did win there would be no time to (A) tell voters or (B) take it to the SCOTUS.

      It’s not a good faith play.

  3. This seems like a pretty clear example of laches.

  4. Assuming arguendo that there was a violation of state law here, if the plaintiffs unreasonably delayed pursuing relief — and it is really beyond any reasonable dispute that they did, given that Harris County announced this form of voting in August well before any votes were cast — then under the doctrine of laches they are entitled to no remedy whatsoever.

    (FWIW, the statutory basis for this form of voting is that § 43.031 of the Texas Election Code requires that polling places be inside public buildings, and the drive-through voting is conducted in tented structures built on public land for this purpose. The plaintiffs contend that these structures shouldn’t count as buildings because [reasons].)

    1. It’s almost like the plaintiffs waited until they could get the maximum number of votes invalidated without a chance for those voters to cure.

      1. The plaintiffs are scum. Their arguments are ridiculous.And Blackman is scum for seeming to support them.

        1. The lawsuit shares a similar trait to the plaintiffs in the current ACA litigation (which he also supports.) Both sets of plaintiffs are essentially requesting a remedy that greatly harms a huge number of non-parties to fix minimal or non-existent injuries to themselves.

    2. The code also specifically allows “movable” structures like, say, tents.

  5. It seems like the theoretical remedy here is the one that the Texas AG already proposed in his letter to the counties: that the county and election officials themselves are potentially legally liable, without any suggestion that the votes themselves are suspect (as the letter notes, election officials should generally defer to the voters’ judgement about whether or not they need the curbside option, so there’s no way to distinguish between valid or invalid votes cast this way). That seems fair to the voters and sufficiently “severe” to the people who made the decision to allow/encourage curbside voting in this manner.

    It’s pretty remarkable to see how Republicans have at this point abandoned all pretense at combatting election fraud and instead are just attempting to use the courts to invalidate enough Democratic votes to win the election. Here everyone agrees that these are ballots cast by authorized voters in good faith according to the procedures laid out by their local election officials. Despite this, the Texas GOP is attempting to retroactively invalidate over a hundred thousand votes. At least the quiet part has been said out loud, though–we’re not having a debate about fraud or election integrity, we’re just trying to decide to what extent one team is allowed to prevent the other team from voting or, if they succeed at that, having their votes counted.

    1. Exactly right.

      The Trump team is engaging in no less than an assault on democracy.

      No one with any integrity at all should be supporting that.

      1. The Trump team has squat to do with this. The suit was filed by candidates for local office and local voters.

        1. Are we supposed to pretend they don’t support this effort and haven’t been saying they plan on litigation to invalidate votes?

          1. The people who invalidated the votes were the people in charge of Harris County who willfully and deliberately violated election laws and set up illegal voting stations despite being warned repeatedly over the course of months.

            I think we should count the votes. Everything else is worse. However, the people who made that call need to see the inside of a prison for a few days.

            1. There has been no determination that anyone violated Texas election law and there have been numerous opinions offered claiming that the procedure was legal. Petitioners, including Quack Htze claim it’s illegal, but there is no good reason to believe it. Paxton has also claimed it’s illegal. Perhaps his las pre-incarceratiion proclamation.

              Legally registered voters excercise the franchise in the manner prescribed and uncontested and then certain crackpots decide to allege that the ballots were cast illegally. One not familiar with the Federal Court procedures in Texas could be forgiven for assuming that sanctions should be in order, if they are not.

              1. Actually, giving legal opinions when requested is actually among the official duties of the AG, so, yes, there HAS been a determination that this is a violation of Texas law.

                Maybe not a final determination, but a determination.

                1. Yeah. And the officials actually administering the election have decided it’s not a violation.

                  1. No, most of the people administering the election decided that it was, and refrained.

            2. What’s the criminal law in Texas for getting your voting procedures approved by the Texas Secretary of State?

            3. On what basis were these illegal voting stations?

          2. Can you cite an actual statement by Trump or a Trump campaign official explicitly supporting this particular suit?

        2. “The Trump team has squat to do with this. The suit was filed by candidates for local office and local voters.” The original suit that was tossed a couple weeks ago had the Harris County Republican Party involved as well. Though it might not be possible to find the Trump campaigns greasy finger prints all over this, it’s typical of the crap that Republicans have been doing all over the country. It’s not impossible that this is occurring without the approval of the Trump campaign just as it’s not impossible for the moon to be made of green cheese.

  6. “ For purpose of this post, I will assume that the Attorney General is correct, and the Clerk violated Texas law.” yup. Stop reading right there …

    1. I think that the AG is wrong and that the voting was done legally, but remember that the author is a law prof, they like these type of hypotheticals.

      1. More important than his being a law prof, he is a major Trump ass-kisser.

        1. “Trump ass-kisser” = person who thinks Trump might not be the worst person since Hitler

      2. remember that the author is a law prof, they like these type of hypotheticals.

        All the worse for them. Let them leave their hypotheticals in the faculty lounge, and not try to validate bizarre theories in the courts, where they affect others.

        1. Wouldn’t it be better for a court to explicitly rule against a bizarre theory so as to conclusively foreclose it?

  7. Query option 1 as estoppel — even if the affirmative act of offering to take the ballot from the accepted voter is enough to have estoppel run against the local election board, it wouldn’t run against a reviewing court on the motion of another party.

    It’s equitable, certainly, but no need to weigh the equities, since the answer is in the statute, viz:

    The only questions here are whether (1) a ballot must be prepared at a voting station and (2) someone else can place your ballot in the box.

    As for the first, say an indoor voter has a last minute change of heart and unfolds their ballot on the way to the box and marks another box. Irregular, sure, but the statute doesn’t list that as one of the reasons that a properly deposited vote shouldn’t count. (See: Sec. 65.010.) There’s simply no requirement that all marking has to happen in the station.

    As for the second, the statute clearly permits the elections clerk to take a ballot from an accepted voter and put it in the box. The challenge is whether that person should have been given a ballot in the first place, or perhaps whether they should have been accepted as a voter, but as to the specific question of whether the clerk can legally put the ballot in her hand in the ballot box, the statute is clear — not only permitted, but commanded.

    Now say the election clerks decide that all women wearing purple get to use complimentary Segways to move around in the polling area, use freely flowing expensive fountain pens to mark ballots, and are followed around by a phalanx of servants to attend their every whim. Or say the clerks carry the registered republicans on palanquins from the booths to the ballot box. The point is that no one who presented themselves to the polling place was kept from voting — one person’s ease doesn’t eo ipso create a burden on the others.

    Not advice, top of the head, not expert, don’t rely, likely wrong.

  8. What is the supposed harm in allowing curbside voting?

    The only thing I can think of is that it puts undue hardship on the polling logistics and therefore the state limits the circumstances in which a voter may insist upon it.

    I don’t see any reason why this method of voting increases the likelihood of fraud etc.

    So, in the absence of any harm, who has standing to bring suit?

    1. The harm isn’t in allowing curbside voting. It’s in allowing curbside voting in only one county, while all the other counties follow the law.

      We used to see a similar thing back in Michigan, every Presidential election year: By law the polls would close at 8PM, but anybody already in line at that time could still vote. Nobody new could enter the line after 8, though.

      Inevitably, some judge somewhere in a heavily Democratic precinct would order the polls kept open later than everywhere else in the state. Because “voting was heavy”, or some other excuse. So that their precinct would have more voting hours than anywhere else.

      It’s not so much that there’s a right to particular rules, but there IS a right to uniform rules.

      1. “This county with four million people should have the exact same procedures as a county with two hundred people” is what you would say if you didn’t want a system where every voter in the first county could exercise their right to vote.

        1. Man, you really don’t like the rule of law, or equal protection, do you?

          Yes, a county with four million people SHOULD have the same voting hours as a county with two hundred people. How is this a problem? They’ve got ten thousand times the resources with which to pull it off!

          1. Brett, you’re the one going around pretending laches isn’t part of the rule of law and simply making stuff up about “lawful orders” of the AG that he has no authority to make. And you also don’t care about the fundamental right to vote, which is also part of our laws. So spare me the lecture on rule of law. You only care about your narrow interpretation of the laws you like prevailing.

            Let’s test something: would it be okay, in your mind, if a legislature said there could only be one polling place per county on Election Day and that it would only be open from 9-5? No early or absentee voting or anything.

            1. I think it would be OK if a legislature said voting had to be in person during those hours. Absentee voting is a courtesy, not a right. And under Texas law, employers have to let you leave work to vote.

              But they’d absolutely have to provide enough resources to handle everybody voting. If it was one voting place, they’d have to have one heck of a lot of parallel lines and available parking to get away with it.

          2. Brett, you are basically arguing that every county in the state has to follow the same rules as the county with the absolutely most restrictive voting procedures.

            That’s absurd.

            If there is an equal protection claim against anyone it is against the officials in the restrictive county, not others.

            It’s also interesting how, as engineer, you abandon any consideration of practicalities.

            You want millions of voters to vote on the same day, at the same place if, somewhere in Texas, a county requires a few hundred voters to vote on the same day, at the same place.

            You want to think about that, or is it just part of your “voters in cities shouldn’t count as much” philosophy?

            It’s interesting, as an aside, how quickly you abandon your support of local control and letting officials make decisions based on local conditions and so on when you don’t like what they do.

      2. Different counties having different voting procedures has been the way the system has worked previously. Suddenly consistency is required?

        Argument via ‘inevitably’ speculation is not an actual legal argument.

  9. These hypotheticals are interesting but I don’t see how you skip past laches (or similar doctrines). The form of voting was announced in August, and the plaintiffs waited until the Friday afternoon before the election — knowing tens of thousands of votes had been cast and that they wouldn’t get a ruling until the day before the election at earliest, thus preventing any reasonable cure — to file for a TRO? This timing evidences extraordinary gamesmanship and would be dispositive for most non-partisans in the federal judiciary.

    If we had a functional congress, they might set timelines for the announcement of voting plans for presidential elections by counties, and for the filing and resolution of lawsuits related to those plans to avoid this situation in the future.

    I also understand there may be some overlap between these plaintiffs and those who have lost successive petitions to the TX Supreme Court, which could play some role in the analysis.

    1. I believe option 1 is something similar.

      1. Sort of, but it focuses on estoppel by non-party voters, which is not a concept I’m familiar with. Laches would apply directly to the plaintiffs.

        1. Agree. I also wouldn’t think the court would need to make a finding under laches that the Clerk violated the law.

    2. Does laches actually apply? The defendants (And others!) announced this form of voting in August, sure, but it was first challenged on October 12th, the day before early voting starts in Texas, (This is just the latest challenge, not the only challenge.) and by October 16th, the Texas AG had already told elections administrators to stop, that what they were doing was illegal.

      Only the defendants ignored that.

      Does laches apply to illegal conduct persisted in despite challenges and lawful orders to stop? And I’m really not enthusiastic about the idea that you get to keep ill gotten goods if you’re just persistent enough in the face of being told you’re breaking the law.

      That said, maybe the best solution is just some jail time for the Clerk.

      1. What lawful order to stop? There was no lawful order to stop, the Texas AG just issued guidance. He’s not the boss of the clerk. He’s not in charge of election procedures. The SoS is and she approved it. So the first suit on October 12 was likely barred by laches too. The plaintiffs sat on their claim for an unreasonable period of time given the circumstances and it is going to materially prejudice the defendants and third parties to grant relief.

        “And I’m really not enthusiastic about the idea that you get to keep ill gotten goods if you’re just persistent enough in the face of being told you’re breaking the law.”

        WTF are you even talking about here? Just because one political hack tells you’re breaking the law doesn’t mean you actually are. I’m sorry you’re not enthusiastic about the law surrounding laches but it’s the law too. Something you say you care about.

        1. Lawfully binding guidance, which is why every other county stopped.

          1. Dude. You’re just making stuff up. There is no such thing as lawfully binding guidance from the Attorney General of Texas on election law. Elections are administered by the Secretary of State. The AG can’t bind anyone to anything with this letter.

            1. Dude. You’re just making stuff up.

              That’s our Brett.

      2. you get to keep ill gotten goods if you’re just persistent enough in the face of being told you’re breaking the law.

        What “ill-gotten goods?”

        The voters did nothing wrong, and were fully entitled to vote.

  10. How exactly is this a problem? How exactly is the democratic process harmed by allowing these votes? Given the ambiguity in the statute what basis is there to not allow these votes.

    And finally, why aren’t all but the most rabid conservatives embarrassed and ashamed at the fragrant attacks on democracy by the Republican party, the attacks on the voting right itself. The only way a minority like conservatives can win is to cheat, but that doesn’t mean they shouldn’t be condemned by real conservatives for that cheating.

    1. Because like Mike Lee said, “We aren’t a democracy.”
      This won’t just be an analytic point about our government structure or a pedantic “um actually” about being a constitutional republic. This is going to become a normative position from them from now on: “We aren’t a democracy, and it should stay that way. Our unpopular party gets to stay in power no matter what most people think.”

    2. The problem is that in every other county which followed the AG’s order there were probably voters that failed to vote because they could not vote curbside. Thus voters who were too fearful to go into a polling place in those counties were disenfranchised. All voters in a state (and perhaps the nation for Presidential elections) should have uniform rules applied to them and the AG tried to do this.

      Declaring Harris County’s election invalid also puts the heat where it should be. The voters in Harris County elected a county clerk that was a crook. It is they who should suffer the consequences of their stupidity rather than benefiting from the illegal actions of the crook by having their votes more likely to be cast/count than votes in, say, Tom Green County.

      It’s unfortunate the AG didn’t send state troopers to polling places in Harris County the moment the AG became aware of the violation. Poll workers accepting illegally cast curbside ballots could have been warned and if they continued to violate the law and jeopardize the election, been arrested – I would think that would take care of it pretty quick.

      I think it is unlikely that the county clerk in Harris County was unaware that their action would bias the election towards Biden and disenfranchise voters in other county.

      Not that it matters legally… I am going to assume that this was done for partisan political reasons rather than a county pride thing because the clerk thought it would be cool to have the name of the President (in two years) sharing the name of the county.

      The voters of Harris County are free to vent their wrath on the crook they elected to County Clerk – perhaps via a recall if Texas law allows for that. Or, maybe they could protest in the streets and burn some county facilities — that seems to be the preferred alternative to the ballot box in some locales.

      1. Your first error is assuming that the current Harris Cpunty clerk was elected — he was not. In spite of the fact that he was not elected, he’s been doing a grand job, as far as I can tell. His mission, with respect to the election, should be to provide every opportunity for every legally registered Harris County voter to legally vote and, as far as I know, that’s what’s been happening.

        As is clearly explained, but ignored by crackpots, cranks, quacks (at least one) and just general wankers — drive-through voting is not the same as curbside voting. Every drive-through voting station is a legal, separate, polling place and voting conducted at those places is entirely within Texas law, even though our attorney general, so long as he remains un-incarcerated, falsely claims otherwise.

        1. You are correct regarding the clerk being elected. I don’t live in Texas and didn’t realize the elected county clerk resigned earlier this year and that Hollins was appointed on an interim basis by the Commissioner’s Court — all elected officials. So the voters picked the people who appointed Hollins – same argument holds that county voters are responsible for his appointment.

          I don’t know if he’s doing a fine job – I guess the courts will ultimately decide this based on at least this case. He seems pretty tight with some of the county’s Democratic elected officials – having also gotten a contract to represent the county at what could be a very lucrative rate in an insulin overcharging case.

          I guess it helps to be a party insider – cronies all the way down…

          Of course his job is first and foremost to follow the election law.

          We will see if the history shows that these curbside locations were identified early on as separate drive through voting locations in lists of published polling places (albeit sometimes just feet away from another polling place), applications (if any) required to be a poll watcher, and were assigned staff and supervisors separately, etc…

          1. I don’t think an election in Harris County has ever been more fair and voting for all legally registered voters has never been easier.

            As for the courts deciding anything about election law, first you have to have somebody with standing and have somebody who has been harmed.

      2. What order? There was no order. It was a guidance letter. The AG can’t order anything in this context, he’s not in charge of elections.

      3. WTF?

        How is it the Harris county clerk’s fault that other counties didn’t implement drive-thru voting? You people are insane. Let the voters in the other counties complain to their county clerks.

        Suppose some county decided to close polling places an hour earlier than others. Would votes cast in other counties after the first one closed be invalid? That’s what you’re arguing: That all counties are required to use the most restrictive voting procedures used anywhere in the state.

      4. The argument that making it easy for some people to vote is somehow harmful to others has already been tested out in Texas and found wanting, the main difference being that the political valence was reversed.

        Remember Texas Democratic Party v. Abbot, in which the Democrats argued that allowing no-excuse absentee voting for people under 65 was a violation of the 26th Amendment’s rule against voting restrictions based on age? In that case, the Fifth Circuit declared that making it easier for one group to vote does not abridge the voting rights of other groups, and therefore ruled in favor of the state. If that logic holds, the fact that the people in Harris County had some benefit doesn’t hurt anyone else so that’s not a good basis to reject their votes.

        1. You meant forbidding no-excuse absentee voting for people under 65, but otherwise, spot on.

      5. Not that it matters legally… I am going to assume that this was done for partisan political reasons rather than a county pride thing because the clerk thought it would be cool to have the name of the President (in two years) sharing the name of the county.

        I had a long response in the works, but this paragraph really moots it. You’re unhinged.

  11. I agree that this lawsuit is nothing more than an outrageous attempt to suppress the vote. I will point out that this type of shenanigan is only possible because we have an electoral college. With a national popular vote it’s unlikely 100,000 Harris County votes would impact the outcome. If it’s a close race in the electoral college, 100,000 Harris Cpunty votes could be determinative.

    1. I think this suit would happen even if Texas was definitely going red Presidentially because there is a chance that Texas Republicans might lose the loose the Texas House of Representatives.

      1. That’s right, but isn’t this suit based at least in part (i.e. standing) on the Electors clause (which wouldn’t apply to the TX state house), or are they also seeking standing under TX law?

        1. Apparently it’s also an equal protection clause claim. Which makes sense because I don’t see how non-federal office candidates have standing to sue under Article I Section 4, even though they also make their claim under that section. But if an EPC violation turns on the construction of state law, I think Pullman abstention would apply until TX Supreme Court weighs in definitively. I don’t believe there has been a full decision on the merits yet.

        2. Once we’re talking about the federal case, it’s hard to imagine a clearer example of what Purcell is supposed to be protecting against.

    2. Those votes could influence the Senate election also. Unlikely as dipshit Cornyn, with all the qualifications of wall paper paste, seems to be highly likely to garner (ha, ha) a well undeserved victory. Not my fault.

      How in Hell did we Texans end up with these two senators? A Canadian named Rafeal who calls himself Ted who reads Dr Seuss on the Senate floor in order to shut down the government so that he can later deny shutting down the government and a knob like Cornyn with no identifiable intellectual qualifications not also held by average IQ Afghan hounds.

      Sometimes I think we’re rightly doomed.

    3. I agree that this lawsuit is nothing more than an outrageous attempt to suppress the vote. I will point out that this type of shenanigan is only possible because we have an electoral college. With a national popular vote it’s unlikely 100,000 Harris County votes would impact the outcome. If it’s a close race in the electoral college, 100,000 Harris Cpunty votes could be determinative.

      Except that there are other elections besides presidential on the ballot. To be sure, it would easier to undertake a “do over” of elections besides the presidential, but the issue still arises.

  12. Hey, bigots . . . Everyone ready for next week?

    1. Are you and your fellow bigots going to get together and have a hate party? Maybe cry because your old white guy didn’t beat the other old white guy? You’re pathetic.

      1. Chickens, Baby Boy, chickens.

  13. This is hard for me to say, because I hate them.

    Amazon should get the contract for the national election on the internet, on the phone, or at any Amazon truck. It knows who and where you are, whether you are qualified to vote. You will not vote twice. The results will be available in seconds not in weeks.

    Nothing the government, which is really the lawyer profession, does is competent.

    1. And if there’s any problem, you’ll be diverted into a menu of problem resolutions which like as not has no option which matches your actual situation, and no obvious way to speak to a real human.

      1. We don’t agree on much, but you’re spot on here.

        I wouldn’t trust Amazon (or Google or Facebook or Microsoft or whomever) to do it right, assuming for the sake of the argument that they would actually try to do it in good faith.

  14. Is there any depth to which Blackman won’t sink to defend Trump? Like, if Trump ordered the military to go into Philadelphia and start burning filled-out ballots, is there any doubt that he would find some justification to try to defend it? And he doesn’t even work for him! You’d think you’d have to get paid to be this much of a weasel.

    1. Only personal attacks from the left. All of them violate the Fallacy of Irrelevance.

      1. Oh no, did I just do an incivilty?

        Blackman and his ilk deserve nothing but personal attacks. Could not care less if it’s some sort of argumentative fallacy.

        1. It’s not any kind of fallacy, it’s a perfectly reasonable metaphor based on observed behavior.

  15. Any candidate in a statewide race, presumably from the GOP given the heavy Dem leaning of Harris County, has a right to be upset.

    The AG issued a statewide opinion about the validity of this process. Only one heavily Dem county out of the whole state chose to ignore that opinion and instituted a procedure designed to, presumably, increase turnout (not an inherent bad thing unless you believe rights aren’t up for a vote). This will have a uniquely imbalanced impact on the statewide vote. Had all other counties done this, where all voters of all persuasions were granted such a helping hand to voting, then there would be no harms committed. But that all other districts behaved uniformly for all their voters across the entire state EXCEPT a partisan enclave is where the issue arises.

    The law is the law and is expected to be uniform for ALL people… this is justice. To have different laws for different people within the same jurisdiction is unjust. The right option would be to cancel all votes curre fly counted this way and allow everyone a chance to vote again. There is no hardship that is so burdensome that it can not be overcome on election day. The law protects you from your employer who did not let you vote. You can have kids in line with you. Waiting to have your “voice” heard is a small price to pay. All human endeavors require some level of human labor… and as long as the amount required is less than that which is possible, there exists no actual barrier to voting again on election day. Those who need to avail themselves of legally allowed drive through or curbside can still do so on Tueaday. No voter is being denied a chance to vote by discarding those votes illegally cast (presuming the court applies the law rather than good intentions) and letting everyone still vote between the ruling and election day.

    1. From the Texas Tribune article that Josh linked to:

      The Harris County Clerk’s Office argued that its drive-thru locations are separate polling places, distinct from attached curbside spots, and therefore can be available to all voters. The clerk’s filing with the Supreme Court in the earlier lawsuit also said the Texas secretary of state’s office had approved of drive-thru voting. Keith Ingram, the state’s chief election official, said in a court hearing last month in another lawsuit that drive-thru voting is “a creative approach that is probably okay legally,” according to court transcripts.

      1. Very creative. Did the county list them separately in all lists of polling places? Did they assign separate supervisors/personnel in the same manner they would normally do so for separate polling places? I suspect their creativity would look like a convenient afterthought upon close examination.

        I’ve not looked up when Ingram made this statement. The Texas AG’s letter seems to be dated October 16 (which is, admittedly, also “last month”). In any event, would not the AG letter override a statement that drive-through voting is “probably okay legally”? Isn’t the AG generally the source of “final word” on legality until and if the courts are asked to step in and do so?

        1. “I suspect their creativity would look like a convenient afterthought upon close examination.” Do you have any assertion to make about these polling places not meeting legal requirements that is backed up by anything other than fatuous crap? The fact that these polling places were going to be implemented has been publicly known for months.

          As for the un-jailed felon currently occupying the position of Texas AG and his opinions, I suggest that they are not unlike Justice Marshall and his decisions. loosely: AG Paxton has offered his opinion; let him enforce it.

          1. So rule of man, not rule of law? Sounds wise.

            1. Is this intentionally ironic? It’s the AG trying to make law by fiat, not Harris County.

        2. “Isn’t the AG generally the source of “final word” on legality until and if the courts are asked to step in and do so?”

          Why do you assume that the AG’s statement about a different practice (curbside vs. drive through voting) is more controlling than a statement from the chief election authority for the state of Texas on what Harris County actually did?

          1. Where is this completely bizarre notion that the AG can just order people to do things coming from? Texas doesn’t even give the AG’s office freewheeling criminal jurisdiction, let alone the authority to bind other agencies to his opinion of what is legal and what isn’t.

          2. I don’t know about Texas but I understand that in some states a formal AG opinion is presumed to be binding on the state unless/until overruled by a court.

            This letter doesn’t seem to be a formal opinion.

        3. In any event, would not the AG letter override

          No. The AG letter is his personal opinion. It has the same legal effect as a letter to the editor of the Houston Chronicle by Prof. Blackman, or a Facebook post by me.

          Isn’t the AG generally the source of “final word” on legality

          No. Why on earth would you think that?

        4. Isn’t the AG generally the source of “final word” on legality until and if the courts are asked to step in and do so?

          For folks in their chain of command? Sure.

          For folks outside their chain of command? Nah, it’s just advice.

          So seeing as they got the go-ahead from their actual chain of command…

      2. I have to say that is the sort of creative description that gets people in regulated sectors arrested for “artificial circumvention”.

  16. Switching directions a bit, but what happens to the Harris County Clerk who (it seems illegally or extra-legally) administered this system? Were the election workers ‘just following orders’ as well?

    Fringe violations will continue if there isn’t punishment or sanction.

    1. Despite the AG’s statement, it is not remotely clear that this setup was “illegal or extra-legal.” Josh has accepted it for purpose of this post, but you should not assume it is so.
      In the future, the sanction would seem to be a prospective injunction by plaintiffs who do not wait to the literal eve of the election and then file a TRO in an attempt to bring about Option #2.

      1. When was it evident that Harris was going to violate the AG’s order and how widely known was this?

        It seems the county should have gone to court to get an order to override the AG’s order if they felt it was illegal.

        1. Is this a thing the AG can give orders on?

          1. No it is not. And Josh didn’t even try to characterize it as one. He said it was a warning and the hyperlink goes to a letter that is clearly a warning and not an order.

        2. An AG opinion is not an order.

        3. 1. There is no AG order.

          2. The plan was announced in July an dtested in August, when it was approved by the Secretary of State.

          Any more questions?

    2. I suggest that the Harris County Clerk be denied a subsequent term. You will need a bit of further knowledge to appreciate this joke.

  17. These abuses should be curbed.

  18. Fine, don’t punish the voters, punish the officials who arranged the illegal voting.

    1. What is the harm here?

  19. For the hypothetical to work you need the AG to sue after the parade has started, at the least; in fact I think the parade has to be largely completed before the suit — the votes here have been delivered to the clerk (cast). The hypothetical should reflect that.
    I am not clear why you think the remedy of a suit against the clerk should involve punishment of third party voters who reasonably relied on the clerk’s advice and conduct.

    1. The first challenges to what the Clerk was doing came before he did it; This was just the latest challenge, not the only challenge.

      1. You are re-writing the hypothetical. The issues concern the outcome of a particular suit.

      2. Those would be the “first challenges” that failed all the way up to the Texas Supreme Court?

        Why should the Clerk have stopped when challenges failed?

  20. I love the “Libertarians” on this blog who favor tightening laws rather that loosening them.

    You shouldn’t try to meet my expectations.

    1. It’s not “tightening” the law to just enforce it as written until you actually change it. It’s “the rule of law”.

      1. Rule of law also includes the doctrine of laches.

  21. I haven’t looked at any case law, but just from a first read of the statutory language, I think the assumption of the post, that Texas law was violated, is just incorrect. Since Texas courts don’t seem to have ruled on the merits, I hope the federal court rules for the county on the merits.

    If we go with the assumption of the post, that Texas law was violated, it seems reasonable to me to say that the plaintiffs get no remedy because they waited too long to sue. It sounds like the county was public about allowing this in August, and the state waited until November?

    If neither of those arguments work, perhaps the best remedy is to order a second election, done quickly and with less but still some early voting, so that the new ballots can be counted in the presidential election. If we accept that the ballots are invalid (which, again, I don’t think we should), then there is no plausible way to get everything we want, something of value has to be tossed, and it seems to me that tossing some early voting is less bad than tossing all votes for president (the full re-do option) or tossing all early voting and all notice of the need to vote tomorrow.

    1. “Since Texas courts don’t seem to have ruled on the merits, I hope the federal court rules for the county on the merits.”

      Since Texas courts don’t seem to have ruled on the merits, I hope the federal court follows the clear Supreme Court precedent in Purcell and doesn’t do anything.

  22. Even the assumption that this was illegal is unwarranted.

    The drive-through voting is not the same as curbside voting, despite Blackman’s attempt to conflate the two. It’s the same as “walk-through voting,” but done from a car.

    Funny. In AL the law specifically allows curbside voting, but the state AG, or someone prohibited it, and the Supreme Court upheld the ban.

    If there wasn’t overwhelming support fro court-packing before, there may be after this election.

    1. “If there wasn’t overwhelming support fro court-packing before, there may be after this election.”

      If the dems take both the White House and the Senate, they can probably undo a lot of the damage done by Trump and can probably do a lot to defang the rabid cranks on the SC. Then, it may not be necessary to pack the court — a solution that I don’t believe any sane Democrat actually favors. We’ll have to wait and see.

      As for DC statehood, don’t see any way around it if the Dems win it all. Any constitutional challenge can be avoided by gerrymandering.

  23. The election “cheating” came with the illegitimate passage of the 1965 Immigration and Nationality Act. It was presented to the people under false pretenses, and thus, all people made citizens who would not have been but for it should be retroactively stripped of citizenship, and their votes disqualified.

  24. Here is the statute:

    A polling place established under this section may be located, subject to Subsection (d), at any place in the territory served by the early voting clerk and may be located in any stationary structure as directed by the authority establishing the branch office. The polling place may be located in a movable structure in the general election for state and county officers, general primary election, or runoff primary election. Ropes or other suitable objects may be used at the polling place to ensure compliance with Section 62.004.

    The polling places were tents – movable structures. Voters drove up, presented ID, signed in, and were given a machine to vote on.

    The plan was tested in July and approved by the Republican Secretary of State. And now comes the GOP, with Blackman cheering them on, with this BS case.

    1. What are you doing, bringing actual legal authority onto this legal blog? You’re supposed to just assume that anything making voting slightly easier is necessarily illegal.

  25. I don’t think your hypothetical actually helps. It’s not enough different from the real scenario to create any mental or moral distance.

    That said, I am inclined to option 1 – when we plebs rely on the official pronouncements of a government official, hold the official to blame. Lock him up for voter fraud if you must (for example, in order to deter future abuses) but do not punish the citizens who relied on his wrong advice.

    Of course, doing so would require abandoning rather a lot of precedent that says we little people have no such right to rely on the advice of our betters. I’m thinking of IRS cases where folks were prosecuted for doing what the IRS’ own help line told them to do and countless others. If you want to stick with the applicable precedents rather than what’s right, the answer is clearly option 2.

  26. It’s funny. In the prior Thursday open thread, I recounted how (pre-Trump) I had a lengthy and somewhat productive conversation about “Voter Suppression / Voter ID” with one of the conservative commenters here, and it was somewhat productive. It made me realize that while there were some Republicans who were truly about the ends-justifying-the-means and voter suppression, there was also a large number of them who (because of propaganda and lack of empathy/knowledge of how voting works in places not like where they live) simply didn’t understand what the actual issues were.

    Unfortunately, we are seeing the end-results of minority-party rule and the Trump election. It is no longer sufficient to simply engage in voter suppression; it is now acceptable to openly advocate for any and all activities necessary to both suppress legitimate votes and discard legitimate votes in a targeted manner. It is the necessary end-result when you have one party advocating for voting and exercising the franchise, and another party advocating for lawsuits and muttering QAnon conspiracies and having its backers (such as those in the threads, here) openly discuss how they can limit the franchise to those who look like them and live like them.

    No longer is there any pretense to the Happy Warrior of Reagan, who attracted voters to an idealistic version of America as a shining city on a hill, but only base intimidation and bullying, while simultaneously whining at how unfair it is.

    Also? Someone please help out Blackman. I know that he needs topics to satisfy his five post per day minimum, but to ignore the difference that has already been widely discussed between curbside voting and drive-in voting would be embarrassing for most 1Ls, if not necessarily got a law professor at South Texas College of Law.

  27. I like Option 4, (not mentioned).

    That would be a Federal court ruling that voting is not a right subject to adjudication, but instead a sovereign power which Texas may not constrain. Texas government may not interfere with its sovereign in the exercise of its power over the Texas government. Texas government has a duty to guard, foster, and maximize its sovereign’s exercise of its power, and to use government power to put the sovereign’s will into effect.

  28. I would favor option 1 on the basis that the voters followed directions from the responsible official. Then consider fining the county official a few hundred dollars, since he is supposed to know the law.

    1. Yeah, a few hundred dollars is a real impediment to a Democrat Party official doing it again. It needs to be serious jail time, along with a felony conviction and a sex offender registration.

      1. Aktenberg78, if it were up to you, it would be a felony just to *be* a Democrat.

        1. Well, yes, because identifying as a Democrat makes on a traitor, and treason is a felony.

      2. “a felony conviction and a sex offender registration”
        Sounds good, just don’t try to take away his right to own a semi-automatic assault rifle and hundreds of 30-50 round magazines all purchased at a gun show from an unregistered “hobby” dealer with no background check or paperwork of any kind. Fundamental rights and all that, you know.

        1. What’s a semi-automatic assault rifle? And where do you see in the 2nd Amendment “except for a background check?”

          1. Jesus, a bite. And so soon?

            I served in the army for a long time and throughout that time, nobody in any unit I was assigned to was issued an automatic weapon (and for that, I am thankful). In order to convert the M14 and M16 weapons we were issued to automatic required, as I understand it, a sear modification. Only a moron intent on silly pedantry (as Wilde might have described it, if offered the chance) would suggest that the weapons we were issued were not assault weapons as issued but would become so after a minute or two attention by the armorer.

            Besides which, the term “assault rifle”, as you are no doubt aware, even if intent on giving fatuous crap a bad name, is a descriptive term for a style, and not a definition.

            As for what the 2d amendment says and does not say:

            It says nothing about violent felons’ rights.

            It says nothing about paranoid institutionalized psychotics’ rights,

            and, it does not say that requiring that every transfer of a firearm be processed by a FFL holder, with a background check violates the guarantee that “a well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

  29. And we have a ruling: no standing for the plaintiffs.

    1. By a Republican judge, no less.

    2. Some sanity at last.

      The only remaining question is will these clowns try to appeal up to the SCOTUS, hoping that ACB is a fifth vote against?

      1. They have noticed an appeal to the 5th circuit.

        This judge pretty much bulletproofed his ruling. He said “No standing, and if I’m wrong about that, laches.”

Please to post comments