Voting rights advocates are sounding the alarm and taking emergency legal action as a right-wing federal judge Monday morning is set to hear a lawsuit by Texas Republicans seeking to invalidate nearly 130,000 legally cast ballots in heavily Democratic Harris County, an alarming last-ditch ploy one observer described as an "attempted judicial coup in progress."
The hearing, scheduled for 10:30 am local time, will come less than 24 hours after the Texas Supreme Court rejected a nearly identical GOP effort to toss out ballots cast through Harris County's drive-thru voting system, which has been in place for months as a safer voting option amid the coronavirus pandemic.
"Throwing out these votes would be patently unlawful and unprecedented. Texans have shown up in record numbers to make their voices heard, and we will fight to ensure that these votes are counted."
—Andre Segura, ACLU of Texas
"Ten of Harris County's 120 early voting sites are drive-thru locations," CNN noted over the weekend. "As of Friday, nearly 127,000 votes had been cast via drive-thru, marking nearly nine percent of the total votes cast in the country's third most populous county. While curbside voting in Harris County is limited to voters with a disability and located at all polling sites, the drive-thru voting locations are open to all voters."
The Republican lawsuit—filed by wealthy conservative activist Steven Hotze, state Rep. Steve Toth, and a pair of GOP candidates for office—alleges that drive-thru voting is unconstitutional because only the state legislature has the authority to make changes to election law. Slate court reporter Mark Joseph Stern wrote late Saturday that "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," Stern wrote. "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."
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"And yet there is good reason to worry that Republicans will prevail, at least initially," Stern warned. "[U.S. District Judge Andrew] Hanen, the federal judge overseeing the case, is a rabid partisan... Alarmingly, he scheduled a hearing in this case for Monday morning—without even giving Harris County a chance to file a response brief. It is possible that Hanen is rushing to throw a wrench into Texas' election, purporting to void a vast number of votes in a critical battleground state."
Texas Republicans have asked a federal judge to throw out 100,000 ballots in Harris County cast through curbside voting. They drew Judge Andrew Hanen, one of the most notoriously partisan Republican judges in the entire federal judiciary. This is alarming. https://t.co/VODOZrCoUF
— Mark Joseph Stern (@mjs_DC) October 31, 2020
On behalf of several voters who cast their ballots using the drive-thru voting process, the ACLU of Texas late Sunday filed a motion to intervene (pdf) in the Republican-led lawsuit, the third GOP effort to invalidate more than 120,000 ballots in the key battleground state.
According to FiveThirtyEight, President Donald Trump and Democratic presidential candidate Joe Biden are neck-and-neck in Texas, which has seen record-shattering early voting in the days leading up to November 3.
"This lawsuit is another desperate and ludicrous attempt by extremists to block the will of the people and disrupt democracy," Andre Segura, legal director for the ACLU of Texas, said in a statement. "Throwing out these votes would be patently unlawful and unprecedented. Texans have shown up in record numbers to make their voices heard, and we will fight to ensure that these votes are counted."