The Grand Master Of GOP Election Law Defends Texas Drive-Thru Voting In Court

HOUSTON, TX - OCTOBER 07: Election workers accept mail in ballots from voters in cars at a drive-through mail ballot drop-off site at NRG Stadium on October 7, 2020 in Houston, Texas. Gov. Gregg Abbott issued an exec... HOUSTON, TX - OCTOBER 07: Election workers accept mail in ballots from voters in cars at a drive-through mail ballot drop-off site at NRG Stadium on October 7, 2020 in Houston, Texas. Gov. Gregg Abbott issued an executive order limiting each county to one mail ballot drop-off site due to the pandemic. (Photo by Go Nakamura/Getty Images) MORE LESS
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November 2, 2020 12:09 p.m.

Ben Ginsberg — the longtime GOP elections law guru who in recent weeks has grown increasingly vocal about his fears about President Trump’s anti-democracy rhetoric — took his come-to-Jesus moment to the next level on Sunday.

He, along with the former Republican Texas House speaker, filed a friend-of-the-court brief urging a federal judge not to toss the 126,000-plus Texas ballots that are are currently being challenged by Republicans.

The court filing came on the heels of a Washington Post op-ed Ginsberg published Sunday —  at least the fourth op-ed from Ginsberg of the cycle so far — that decried a “compliant Republican Party” that has been “enlisted” in a “shameful” effort by President Trump to disenfranchise voters.

“My party is destroying itself on the Altar of Trump. Republican elected officials, party leaders and voters must recognize how harmful this is to the party’s long-term prospects,” Ginsberg’s op-ed said.

In the court filing Ginsberg and Joseph Straus III, who served as the Texas House speaker from 2009-2019, told the judge that granting what the Republicans are seeking would “would undoubtedly deny tens of thousands of people the right to vote” while violating federal law.

“It is hard to imagine a scenario more damaging to the public’s confidence in a fair election than a last-minute order from a federal judge throwing out the votes of over 100,000 voters for no reason other than that those voters relied on a state election official’s reasonable interpretation of a state election statute,” their filing said.

The court case is a federal lawsuit Republican activists and candidates filed last week to stop drive-thru voting in Harris County, the largest county in Texas. The lawsuit seeks to throw out the 126,912 drive-thru ballots that have been already cast. Those ballots amount to 10 percent of the total early votes cast in the Democratic-leaning county.

Ginsberg and Strauss’ friend-of-the-court filing argued that how Harris County is operating the drive-thru option is a reasonable interpretation of the election rules set by the Texas legislature.

Indeed, the Texas Supreme Court, which is dominated by Republicans, has passed on several opportunities to stop drive-thru voting, which has been challenged unsuccessfully in state court by both the Harris County Republican Party and the group of GOPers that brought the federal lawsuit.

Other prominent Texas politicians have also spoken out against the efforts to disenfranchise the 125,000-plus Harris County residents who have used drive-thru voting so far or who will seek to use it on Election Day.

The challengers in the case are leaning in on a controversial and extreme interpretation of the Constitution that they suggest to mean that federal courts must intervene whenever they believe a state court or local election official is deviating from the election rules laid out by a legislature. Some of the members of the U.S. Supreme Court — though, notably, not yet a majority — have signaled their support for such a legal approach. The efforts to reject ballots on the basis of this legal claim have only gotten bolder since Justice Amy Coney Barrett joined the court last week, though she herself has not weighed in on it publicly.

Ginsberg’s brief invoked his time working on George W. Bush’s legal team, alongside Barrett, during the 2000 contest, where he argued in favor of counting military ballots that arrived after election. (Rejecting postmarked mail-in ballots that are received by election officials after Election Day has been another goal of multiple recent GOP lawsuits).

“Not so long ago, it was a core tenet of the Republican Party that the vote of every qualified voter should be counted, even if, at times, it did not work in the Party’s favor,” Ginsberg and Strauss’ brief said. “While the Republican plaintiffs might seek to disavow that principle by bringing this action, amici respectfully ask this Court to reaffirm it.”

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