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Republicans now think Texas courts don’t decide their own election law

The Harris County drive-through voting case has national ramifications.

On Nov. 2, one day before Election Day, federal court Judge Andrew Hanen holds a hearing on whether Houston drive-through polling stations will be counted. (Video: The Washington Post)
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On Monday, a day before Election Day, federal district court Judge Andrew Hanen will hold a hearing on whether Harris County, Tex., clerk Chris Hollins violated the Constitution by making provisions for some Houstonians to vote in drive-through polling stations.

Although the same lawsuit has been rejected twice by the all-Republican Texas Supreme Court, the plaintiffs — who include a prominent Republican activist and a Republican state legislator — are asking Hanen to invalidate more than 100,000 ballots cast, in some instances, in temporary structures set up by Harris County. His decision may not tip the outcome of the presidential election, but it could influence a number of down-ballot races, and maybe even control of Texas’s house of representatives.

Like so many 11th-hour voting-related suits filed by Republicans in recent weeks, this suit has almost nothing to do with voter fraud. Rather, it’s the latest in a consistent and cynical line of suits — in Wisconsin, Pennsylvania, Minnesota, among others — that appear motivated by partisan gain, assuming that the exclusion of any set of ballots from Harris County, the third-largest in the country and one of Texas’s key Democratic strongholds, is good for Republicans.

The Harris County case, in particular, gives away the game: It lays bare how little this case and others have to do with the public interest. And it’s easy to see how the plaintiffs’ argument, if taken seriously by the court and followed to its logical conclusion, would actually invalidate any number of state election laws on the ground that no two jurisdictions have exactly the same voting rules.

It would certainly be less chaotic if all Americans voted pursuant to a uniform set of federally imposed procedures — if forms, machines, drop-box specifications, mail-in ballot receipt deadlines and early voting schedules were exactly the same, from county to county and state to state — but inefficiency is not, of itself, unconstitutional.

The suit is already beset with procedural problems: Although the drive-through voting policy was announced months ago, piloted this summer and had the tacit approval of Texas’s director of elections, the plaintiffs waited until last week to first bring this federal suit. It’s also unclear how these plaintiffs (or anyone else, for that matter) are injured by having eligible voters cast timely ballots. And under something called the Rooker-Feldman doctrine, lawsuits like this — in which someone who lost in state court brings the same suit against the same party in federal court — are supposed to be barred. In other words, without ever reaching the merits of the plaintiffs’ claims, this suit could — and should — be quickly dismissed.

The merits of the suit are a sloppy rehash of two different arguments that have shown up in a number of these recent lawsuits: The first claim is that, by allowing drive-through voting, Hollins usurped the power of Texas’s legislature under the federal Constitution to set the rules for elections. Never mind that, by statute, Texas already gives election administrators some flexibility over the exact physical spaces used for polling places; that drive-through voting used security procedures and equipment comparable to that at permanent indoor stations; and that Texas’s Supreme Court, the definitive expositor of Texas election law, turned away the plaintiffs’ objections.

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In the alternative, the plaintiffs argue, allowing citizens of Harris County to vote via drive-through voting in this respect violates the Equal Protection Clause of the 14th Amendment, because Harris County has adopted a “manner of voting” not adopted by other counties. Never mind that different counties in Texas have different rules about the number and locations of polling places, their hours of operation during early voting and so on. Indeed, for one night, Harris County also offered 24-hour early-voting centers. Was that likewise unconstitutional entirely because other counties didn’t?

In essence, the plaintiffs are taking the equal protection argument controversially adopted by the Supreme Court in Bush v. Gore (which, despite the justices’ specific admonition to the contrary, these plaintiffs cite as authority), and stretching it well beyond its breaking point. In Bush v. Gore, the equal protection violation the justices identified was that different counties were using different standards to evaluate the intent of voters for ballots that had “hanging” or “dimpled” chads. If the same two voters indented their ballots in the exact same way, it was possible that the vote would count in one jurisdiction but not in another.

Today, the argument is not about the same two voters having the same ballot counted differently; it’s about access to voting. And if what Harris County did violates equal protection, then unless every single voter in a state has the exact same access to a polling place in every single respect, the state law is unconstitutional. Were that so, then a host of state election laws would have to be struck down. States would have to ensure a comparable number of polling places per capita; that polling places were roughly the same location from voters in every jurisdiction; that the voting hours and staffing for polling places were uniform; and any number of other technical requirements that rather miss the point — which, in case we need to be reminded, is to enable eligible voters to vote.

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Galling, also, is that like other recent election lawsuits, the plaintiffs (and some courts) completely fail to acknowledge the other side of the equation — the 100,000-plus Harris County voters who stand to have their votes invalidated — having voted under rules announced in advance, approved by local officials, and left intact during weeks of early voting, potentially too late for them to do anything about it. Just like Minnesota voters whose otherwise valid mail-in ballots may be tossed because a federal appeals court suggested that the state may have erroneously extended the receipt deadline for such ballots, the mind-set appears to be that no cost is too high, and no amount of disenfranchised voters too large, in cases where, at most, local election officials erred on the side of counting more legal votes from eligible voters. What some courts forget is that these citizens who voted in good faith, before these suits were filed, also have 14th Amendment rights.

That’s perhaps the most stunning feature of this latest suit. When courts consider whether to enjoin government action, they’re supposed to consider more than just the merits of the case. Among the traditional factors in such cases are whether the plaintiffs have suffered an irreparable injury; whether that injury has no other remedy; whether the balance of hardships weighs more strongly in favor of the plaintiffs or the defendant; and whether the public interest would be served by injunctive relief.

In a case like this one, the last two factors drown out the first two. As between the “injury” that some Texas voters outside Harris County didn’t have the same availability of drive-through voting as voters in Harris County (never mind that none of the plaintiffs allege that it was actually harder for them to vote as a result), and the specter of denying the franchise to more than 100,000 Houstonians, it’s just not a close call.

But even if Judge Hanen does the right thing in this case — dismiss it — a broader point is getting lost in a lot of these election cases, and, indeed, in suits challenging state and federal government actions more generally: Whether or not a court enjoins a government action or policy, especially at the outset of litigation, is supposed to turn not just on the legal merits, but on the real-world impact of its decision, and whether an injunction is truly in the public’s interest.

It’s not enough for plaintiffs to demonstrate that they might have suffered some technical harm from a technical government infraction; that harm is supposed to outweigh the harm that would result from granting the plaintiffs their requested relief. And where the “relief” would be to not only disenfranchise thousands of voters whose only supposed sin was following the rules, but to also potentially change the results of elections to not reflect the will of the democratic majority, that balance resolves itself.

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