Update: Texas law profs support Democrats opposing GOP effort to void 100,000 Houston curbside ballots

 

November 2, 2020 UPDATE

The Texas Supreme Court yesterday denied certification of the Republicans "emergency petition for a writ of mandamus" to establish that the Harris County (Houston) use of curbside voting stations violates Texas law which calls for use of "structures" as voting places.

Texas Democrats and the Democratic Senate and House Campaign Committees have filed a brief in Opposition to the Republicans' federal action proposed emergency order to disqualify over 100,000 ballots.

They have been supported by three University of Texas law professors - Fishkin, Vladeck, and Rave as amici curiae.  The professors' brief argues straightforwardly:

 The Elections Clause does not grant federal courts the power to override a State’s construction of its own law or to create a private constitutional right of action in favor of individuals solely because they disagree with the State’s construction of its election laws. 

Fishkin, et al. go on to disparage the argument - recently bruited by Justice Brett Kavanaugh - barring a federal judge's allowance of additional time for Wisconsin voters' mail ballots to be received if postmarked by the election day. Kavanaugh,concurring in the majority's decision,  declared that "the text of Article II means that “the clearly expressed intent of the legislature must prevail” and that a state court may not depart from the state election code enacted by the legislature. Bush v. Gore, 531 U. S. 98, 120 (2000) (Rehnquist, C. J., concurring)."  It is a stunning argument, that usurps the principle of deference to state authority in the conduct of elections.

The Republican nominee for Texas's 18th Congressional District, a member of the state House of Representatives, and a Republican voter have filed suit in federal court.  Their theory - first voiced by Neil Gorsuch on October 26 in the action overturning a voter-protective Wisconsin decision - is that the Constitution compels any state court or official to literally enforce any term of an election law adopted by a state Legislature. 

​Shocked but not surprised.  A literal textual theory first voiced by Neil Gorsuch six days ago has gained momentum. Cited by Kavanaugh, then Alito, then the Eighth Circuit, it now is relied upon in Texas.

The GOP complaint in Hotze v. Collins, Harris County Clerk would void the ballots of some 100,000 Houston voters.  The Complaint asserts:

NATURE OF THE ACTION 1. By indiscriminately encouraging and allowing any and all Harris County registered voters to cast their ballots via curbside drive-thru voting, Defendant is violating both federal and state law, and Plaintiffs will suffer irreparable injury if such ultra vires action is not stopped. By circumventing the Texas Legislature and implementing a manner of voting not recognized under the Texas Election Code, Defendant is violating Article I, section IV, clause 1 of the United States Constitution. Additionally, by adopting a manner of voting that is inconsistent with the T33exas Election Code, and upon information and belief not adopted by any other county in Texas, Defendant is violating the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.