Some tentative thoughts on possible remedies in the Harris County curbside voting case.
Historically, Texas has permitted some forms of curbside voting. With this accommodation, poll workers would hand a tablet inside the vehicle, so people could vote without walking into the precinct. Under Texas law, curbside voting was permissible if the voter is “physically unable to enter the polling place without personal assistance or likelihood of injuring the voter’s health.” Tex. Elec. Code § 64.009(a).
In the run-up to early voting, several Texas counties considered expanding curbside voting to all registered voters. In light of COVID, the thinking went, all registered voters could claim that entering a polling place would likely “injur[e] the voter’s health.” At the time, the Texas Attorney General warned that such an expansion of curbside voting would be “unlawful and could result in legal liability for political subdivisions and their officials.” He explained that “Fear of COVID-19 does not render a voter physically unable to cast a ballot inside a polling place without assistance.”
Despite this warning, the Harris County clerk permitted curbside voting for all registered voters. Over 100,00 curbside ballots were cast. (I reside in Harris County, but did not cast a curbside ballot). No other county in Texas took this risk.
Now, several Republicans candidates and voters in Harris County challenged the legality of this procedure. They filed suit in federal district court, as well as in the Texas Supreme Court. Today, the latter denied a writ of mandamus. This unsigned order was not a ruling on the merits. Rather, there may be certain procedural reasons why mandamus was denied. The Texas Supreme Court may yet issue a ruling on the merits. And the federal district court scheduled a hearing for Monday.
For purpose of this post, I will assume that the Attorney General is correct, and the Clerk violated Texas law. What is the remedy? I can see three possible options.
- Option #1: A court could acknowledge that the clerk violated Texas law, but decide not to punish the voters. Therefore, all the curbside votes should be counted as if they were cast in the precinct.
- Option #2: The Plaintiffs have argued that all the curbside ballots cast by those ineligible to vote curbside should be thrown out.
Article from Latest – Reason.com