Texas Court Battles Put Democracy on Trial

                 

            

In the last few days a handful of Republican activists have gone to the courts in Texas, in what can only be described as an attack on the democratic process which manages the US Presidential Election.

This weekend, representatives from the Republican party went to the Texas Supreme Court to request that ballots cast in drive-thru centres in Harris County in the state should be discounted. When the Supreme Court rejected their request they immediately took their case to the federal court.

Anyone old enough to remember Bush v Gore will know that in a US election the courts are often used to decide state elections, and the Electoral College system means this can affect the national result. But the Texas case is different – Republicans aren’t suggesting that specific votes should be invalid, they are objecting to an entire method of voting which has already been in use for some time simply because they don’t like it. They are arguing against allowing more people to be able to vote.

The process they object to is one where people can drive to a voting station and vote without leaving their cars. Voters with children not at school (who can take them in the car to vote), the elderly and disabled voters clearly could all benefit from this.

For a country that has drive-in cinemas, drive-thru weddings and drive-thru funerals this shouldn’t seem controversial, and up until recently it wasn’t - the process was actually designed by a bipartisan group in the state, and has been used earlier this year.

But this time because Trump and the GOP are in trouble they have taken to the courts objecting to this method of voting. They aren’t suggesting any fraud is possible or likely, they just want the method thrown out – and with it over 127,000 votes that have already been cast.

Texas is a traditionally Republican state – Trump beat Hillary Clinton in Texas by over 9% in 2016. This year the polls are showing a much closer contest, but a successful court challenge would undoubtedly throw out many votes cast for Trump (though early voting tends to favour Democrats historically).

So why would GOP representatives want to discount votes by the thousand when up to half could be for their own candidate? The reasons are threefold :-

• It adds to the Trump narrative that something dodgy is happening with voting;
• It goes with the Republican philosophy that having fewer people able to cast their vote is to their advantage overall;
• It diminishes people’s faith that their vote matters – if the powerful can discard your vote almost at will what’s the point in voting?

This is gerrymandering of the electoral boundaries rather that geographical ones but the result is the same.

The judge’s decision in the federal court was surprising on several counts. Firstly the presiding judge, Andrew Hanen, is a strong Republican and could have been expected to side with discounting the votes, so to decline the challenge points to strong legal reasons to do so. In fact the judge’s closing comments are jaw-dropping – although he found in favour of letting votes already cast stand, his statement included (breathtakingly) “I’m not necessarily happy with that finding”.

Further, Andrew Hanen left the door open to a further challenge, saying if the Republicans took their case to the 5^th Circuit (the US court of appeal) he would still allow previous ballots to be counted but could discount votes taken the same way today. Needless to say the challengers leapt through this door and are in court again today.

(UPDATE: The 5^th Circuit have rejected the latest appeal)

The huge increase in mail-in and early ballots this year, caused in part by COVID but also undoubtedly by a desire to remove Trump is clearly deeply worrying Republicans. The most alarming aspect of this tale of continuing court battles is that it is not unique to Texas – similar fights are already taking place in courtrooms across America. Trump, who has said repeatedly that he wants the full result announced “on the night" if possible, or very soon afterwards (which never happens) is putting in place challenges which could drag out the announcement for weeks if he is losing.

If Republicans feel they can’t win at the ballot box they will try to win in the courts, right up to the Supreme Court if necessary - where Trump’s choices for Supreme Court judges could be the ones to decide some key state results.

It is a cliché but no exaggeration to say that Democracy is on the ballot in America today.

Mike Holden