Texas Republicans have asked a federal judge to throw out at least 117,000 ballots cast in Harris County, a heavily Democratic area that has experienced an unprecedented surge in early voting this month. The brazen effort to undo legally cast ballots in a diverse, populous county is an eleventh-hour attempt to diminish Joe Biden’s chances of carrying the swing state on Nov. 3. Republicans claim that Harris County’s use of drive-thru voting violates the U.S. Constitution, requiring the judge to throw out every ballot cast this way—more than 117,000 as of Friday. This argument is outrageous and absurd. But the case landed in front of U.S. District Judge Andrew Hanen, one of the most notoriously partisan conservatives in the federal judiciary. Democrats have good reason to fear that Hanen will order the mass nullification of ballots as early as Nov. 2, when he has scheduled a hearing.
Because Texas strictly limits mail-in voting, Harris County—which has a population of over 4.7 million people—has sought to make in-person voting safer during the pandemic. Harris County Clerk Chris Hollins, who runs the county’s elections, established 10 drive-thru voting locations for the 2020 general election. Drivers pull into a large tent, where election officials confirm their identity, then give them privacy to vote. The process has proved wildly popular.
Harris County raised the idea of drive-thru voting in June, and Texas Secretary of State Ruth Hughs promptly approved it. The county tested it in July and approved it in August. Yet Republicans did not contest drive-thru voting in court until Oct. 15, two days after the start of early voting. On that day, the Harris County Republican Party, joined by several GOP operatives, asked the Texas Supreme Court to halt drive-thru voting. The court, which is entirely Republican, refused, over a single dissent. Republicans then went back to the Texas Supreme Court, asking it to toss out every ballot cast via drive-thru voting. The court is currently considering that request, though it seems unlikely to side with the plaintiffs given its previous decision.
So Republicans ran to federal court. On Wednesday, they asked Hanen to declare drive-thru voting unconstitutional and void every ballot cast this way. They relied upon a radical theory that is quickly gaining popularity among conservative judges. Republicans alleged that the state Legislature has sole authority over election law under the U.S. Constitution. They also claimed that the Legislature never approved drive-thru voting. As a result, they argued, the procedure is an unconstitutional usurpation of the Legislature’s power, meaning every ballot cast via drive-thru voting is illegitimate.
There are so many flaws in Republicans’ argument that it’s hard to know where to begin. The GOP operatives probably don’t have standing to challenge a voting procedure that merely makes it easier and safer to vote. But leave that aside and look at the merits. The U.S. Supreme Court has repeatedly ruled that the legislature does not have sole authority over elections. To the contrary, it has held that different parts of the state government can regulate voting procedures. Thus, the lawsuit’s chief claim—that Harris County has infringed on the Legislature’s constitutional rights—is simply false.
