[EL] How Long Before We Know Whether Those 100, 000 Harris Count Drive-Thru Votes Will Be Counted?

Sun Nov 1 11:37:00 PST 2020

Just to emphasize Sam's point: there are a ton of down ballot races affected by the current litigation over the time, place, and manner of the election for presidential electors, and it's stunning how little attention courts have given to all of those.  And in a whole bunch of states, including several of the battlegrounds, the new state legislators are scheduled to take office fairly soon after the general election.  See https://ballotpedia.org/When_state_legislators_assume_office_after_a_general_election.

So in all the hullaballoo over the so-called independent state legislature doctrine, it's worth remembering that the election of 2020 will resolve the composition of those legislatures, and whatever else may be true, there's no independent former-state legislature doctrine.
[https://cdn.ballotpedia.org/images/bp-logo-social-rectangle.jpg]<https://ballotpedia.org/When_state_legislators_assume_office_after_a_general_election>
When state legislators assume office after a general election - Ballotpedia<https://ballotpedia.org/When_state_legislators_assume_office_after_a_general_election>
Legislature (H/S) When sworn in Alaska State Legislature (H, S) Alaska legislators assume office on the second Monday in January following a presidential election year and on the third Tuesday in January following a gubernatorial election year.: Arizona State Legislature (H, S) Arizona legislators assume office on the first day of the session after they are elected.
ballotpedia.org

Pamela S. Karlan

Kenneth and Harle Montgomery Professor of Public Interest Law

Co-Director, Supreme Court Litigation Clinic

Stanford Law School

karlan at stanford.edu

650-725-4851

________________________________
From: Law-election <law-election-bounces at department-lists.uci.edu> on behalf of Samuel S. Wang <sswang at princeton.edu>
Sent: Sunday, November 1, 2020 8:47 AM
To: Pildes, Rick <rick.pildes at nyu.edu>
Cc: Election Law Listserv <law-election at uci.edu>
Subject: Re: [EL] How Long Before We Know Whether Those 100, 000 Harris Count Drive-Thru Votes Will Be Counted?

Rick, I think this is not jusr about the Presidential race. This is also about the downticket, and power for a decade. When it comes to redistricting power, Harris County is Ground Zero.

The Texas Legislature only needs to flip nine seats for Democrats to take control. Then they would attain the possibility of bipartisan Congressional redistricting over ~39 seats. In Harris County, there are half a dozen close state legislative races. The 10 closest races in 2018 were decided by margins of 3,500 votes or less. So undoing 100,000 votes in that county would be potentially highly consequential.

It is possible to give a numeric value to the power of voters in Harris County. I did so here, in this feature we call Redistricting Moneyball. We have been focusing on it all season:
https://election.princeton.edu/data/moneyball/

I am sure this point is not lost on any of the people involved in this lawsuit. The saving grace is that in federal court, they may be focused on the presidency and not be thinking as I have outlined.

Best,
Sam Wang

On Nov 1, 2020, at 11:22 AM, Pildes, Rick <rick.pildes at nyu.edu<mailto:rick.pildes at nyu.edu>> wrote:

Before posting on ELB about this issue, I want to run this by the list-serv to see if federal-courts readers think I am missing something in this analysis:

This is my assessment of what the various next steps will be for the legal disputes over the Harris County drive-thru ballots.  Before addressing the litigation, though, here’s a practical point:  let’s say Biden would capture 80% of those 1000,000 or so ballots.  If the outcome in Texas is close enough to turn on 80,000 votes, it’s hard to imagine that Biden would not be elected, regardless of who wins Texas.  Winning Texas for the Democrats would of course have all sorts of important consequences, but it seems extremely unlikely that the outcome of the election could turn on these ballots.  And there are other races, such as the Senate race, that also matter greatly.

On the litigation process:  Whether or not the DJ on Monday rules that these ballots are valid votes, I think Texas election administrators are likely going to have to segregate those ballots (a court order might require that, but even without a court order).  The battles are the subject of ongoing litigation in both federal court and, as of now, the Texas Supreme Court.

Assuming the courts rule that throwing these ballots out would violate due process, when would those ballots be counted and included in the official numbers from Texas?  I think it would require a final decision on the merits from the Texas Supreme Court, holding that these are valid votes under state law, and the federal courts, holding that there is no federal constitutional violation (or that tossing these ballots would be an improper remedy).  The federal courts will likely move more slowly than the Texas Supreme Court, because appeals will come into play in the federal courts.

I assume the DJ will rule Monday on the merits and that the losing party will file an appeal, also on Monday, in the Fifth Circuit.  How fast could the process move after that?  Will the Fifth Circuit require the opposing party to file papers as soon as Tuesday?  Will the Fifth Circuit issue a decision on the merits Tuesday night?  The losing party will likely then seek a stay from the Supreme Court.  Also, if the Texas Supreme Court were to hold these votes violate state law, I would expect the losing side to seek a stay from the Supreme Court also (arguing that the Texas decision violates due process).

The question then becomes how quickly the Supreme Court acts, which would turn on how the lower courts, state and federal, ruled.  If those courts hold these are valid votes, the Supreme Court could deny a stay.  That would be the end of the matter and the votes would then be counted.  If either the Fifth Circuit or the Texas Supreme Court holds that these votes are invalid and must be excluded, I would think the Supreme Court would take more time and write an opinion on the merits, rather than resolving the issues through the denial of a stay application from the Democratic candidates.

During all this time, those ballots would not be counted.  Given these scenarios, the quickest we might get to a final resolution, it seems to me, is Wednesday.  And that might be on the optimistic side.  It could also take many days longer than that.

Texas will be one of the early, battleground states to release its nearly complete vote count.  But that count likely will not include these ballots.  I suspect we will have to wait until at least Wednesday for that fuller count.

Best,

Rick

Richard H. Pildes

Sudler Family Professor of Constitutional Law

NYU School of Law

40 Washington Square So.

NYC, NY 10014

347-886-6789

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