Mark Stern flagged this new lawsuit filed in federal court which seeks to throw out over 100,000 ballots cast by Harris County, Texas voters who voted using drive-thru voting in Texas. There was an earlier lawsuit in state court seeking to block this means of voting on grounds that it purportedly violated Texas law, but the Texas Supreme Court rejected that claim. This new lawsuit is making the same novel claims under the “independent state legislature” doctrine that any actions by any state court or state agency not specifically authorized by the legislature is an unconstitutional usurpation of the legislature’s power. It’s this same audacious and unproven theory that formed the background for the outrageous 8th Circuit order this week over segregating ballots in Minnesota. The lawsuit has been assigned to Judge Hanen (a judge who had struck down all of Obamacare at one point before being reversed), who has already scheduled a hearing.
On the merits, this case should be a sure loser, but given how crazy things are getting in the federal courts these days, I cannot be 100 percent confident in my predictions. Here are some of the reasons this suit should be thrown out decisively
- It’s too late. Under the doctrine of laches, you can’t just sit on a potential lawsuit and wait to see how things are going. Over 100,000 voters have now voted and it would be too late for them to vote otherwise. this lawsuit could have come weeks ago and there’s no excuse to have waited.
- Plaintiffs don’t have standing. If the complaint is that the legislature’s power is being usurped, then the legislature needs to sue, not voters, a candidate and one member of the legislature as in this case. The plaintiffs in this suit cannot claim injury and so they should not be able to sue.
- The claim relies on an unsupported legal theory, and even accepting the theory this case doesn’t fit as confirmed by the Texas Supreme Court. The Supreme Court majority has never endorsed this theory, and even if the independent state legislature doctrine is adopted by the Supreme Court, it likely would not apply in a situation where the legislature has delegated significant authority to run elections to counties. The state supreme court had a chance to pass on the question of whether the drive-thru voting violated the election code, and on a 6-1 basis rejected the suit. (The equal protection theory advanced by the plaintiffs in this case is even weaker.)
- This is a clear, naked partisan attempt to disenfranchise voters at the last minute. This kind of maneuvering is exactly why there are doctrines like laches and respect for voter reliance interests to stop such shenanigans.
More from Michael Morley on why this claim should be immediately dismissed (despite his disagreement with me on the standing question).