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1/ A new Texas lawsuit seeking to invalidate 100,000 curbside votes is flatly wrong & should be immediately dismissed. This legally baseless suit was filed by a Republican state rep, two Republican candidates, and a voter (not the Texas Republican Party) https://assets.documentcloud.org/documents/20401146/sd-tex-20-cv-03709.pdf
2/ In my view, the plaintiffs definitely have standing (though their claims are completely meritless). Candidates have a right to have their election resolved based solely on legally valid votes, & voters have a right to not have the weight of their votes diluted by invalid ones.
3/ From there on out, the suit's a tire fire. As the Complaint itself EXPRESSLY acknowledges, Texas law specifically authorizes curbside voting if "voting inside the polling location would create a likelihood of injuring the voter’s health." Tex. Elec. Code 64.009.
4/ This is EXACTLY among the types of election emergency statutes I have strongly urged states to adopt. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3160436. We are in the middle of a GLOBAL PANDEMIC. Of course being INDOORS interacting with other people WITHOUT MASKS risks injury to one's health.
5/ That's ESPECIALLY the case since Texas currently lacks any requirement for people to wear masks inside polling locations! Because the Fifth Circuit enjoined it. https://www.texastribune.org/2020/10/28/texas-voting-mask-abbott/
6/ Not so fast, the Plaintiffs would retort. The Texas Supreme Court has "already ... expressly rejected" this argument in In re State of Texas, 602 S.W.3d 549 (Tex. 2020). It held that COVID isn't a basis for all voters in the state to cast an ABSENTEE ballot due to health risks
7/ Unfortunately for Plaintiffs - and fortunately for voters - the laws governing curbside voting are DIFFERENT from the laws governing absentee voting. Their claims about the Texas Supreme Court's ruling are misleading, at best.
8/ The absentee voting law construed by the Texas Supreme Court says a person may vote absentee if they have a "sickness or physical condition" that prevents them from voting in person without creating a likelihood of injuring their health. Tex. Elec. Code 82.002(a).
9/ Texas Sup Ct held that this means that the general public can't vote absentee due to the risk of COVID. Rather, to vote absentee, a person must be able to point to some underlying particular "physical condition" they ALREADY have. Lack of COVID immunity isn't such a condition
10/ The key language from that ruling does not appear in the law governing curbside voting. The curbside voting law, in contrast, states ONLY, "If a voter is physically unable to enter the polling place without... likelihood of injuring the voter's health," they can vote curbside
11/ So the curbside voting statute is easily facially distinguishable from the absentee voting statute, and the Texas Supreme Court's ruling concerning the latter -- which focused on what constitutes a "physical condition" - is irrelevant.
12/ In short, county election officials were acting squarely within the plain text of state law - and certainly within a reasonable interpretation of the text - in authorizing general curbside voting on request.
13/ I commend the state legislature for granting them such discretion, and county officials for exercising it with such alacrity and sensitivity to both voting rights and public health concerns. The plaintiffs' claims that it's illegal are BASELESS.
14/ But wait, there's more. The plaintiffs go on to argue that county officials' decision to authorize curbside voting violates . . . the Independent State Legislature Doctrine. They are emphatically wrong and fundamentally misapprehending the doctrine.
15/ I have argued that the Doctrine DOES exist and serves valid functions. The fact that the Constitution specifically delegates authority specifically to legislatures, rather than to states as a whole, is significant in various respects. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3530136
16/ In particular, this grant of power specifically to "legislatures" bars state officials & courts from ignoring or mangling the plain meaning of state laws, to apply their own preferred policies & reach potentially partisan conclusions under a guise of statutory interpretation
17/ But that's NOT what happened here! The doctrine doesn't let a federal court apply a completely de novo review to force its own preferred construction of state law.
18/ In the context of statutory interpretation, all the doctrine requires is that state officials/courts actually base their actions on statutory authorization, apply primarily textualist canons in construing the law's plain meaning, and reach a FACIALLY PLAUSIBLE result.
19/ The independent state legislature doctrine, in many ways, complements the 11th Circuit's ruling in Roe v. Alabama, which holds that Due Process prevents state courts, after votes have been cast, from reinterpreting state election law in an unpredictable and dubious new way
20/ The doctrine doesn't mean federal courts may step in whenever they want to decide what state laws mean. Here, county officials' interpretation was clearly based on the law's text and plausible - even supported by compelling policy concerns - so the doctrine's inapplicable
21/ In designing a robust election system, officials must always balance: (i) providing adequate opportunities to vote safely, (ii) preventing mistakes, irregularities, fraud, confusion, and other problems, and (iii) ensuring public confidence in the outcome.
22/ Sometimes those goals require adopting and enforcing security restrictions concerning the voting process to ensure the ultimate integrity of the process and preventing problems, mistakes, or irregularities. This is not one of those times.
23/ This is an outrageous, frustrating, shameful suit based on facially invalid theories. No one - including Republicans - should ever have a knee-jerk reaction of trying to make voting harder for its own sake or throw out as many votes as possible.
24/ Curbside voting is a completely reasonable response to COVID. Indeed, because it occurs in the vicinity of election officials, it AVOIDS many of the objections that have been raised with regard to absentee voting.
25/ It may occasionally be necessary to invalidate votes that have been cast due to legal problems, security concerns, or the like. That's an extreme remedy that would require a firm legal foundation. This lawsuit doesn't even begin to come close.
