Performative Lawsuits

@TXAG: The lawsuit has been filed too late. (1) The suit hasn't been documented and the defendants served. The suit has to be served and (2) the defendants given a chance to respond and contest it. By that time the election will be over.

— Patrick Spurlock (@RealPatSpurlock) November 5, 2024

The judge can issue a TRO immediately. The question is, what is the DOJ doing? This isn’t my field of expertise, but per the Texas Tribune:

Texas Secretary of State Jane Nelson told the [DOJ] late Friday evening that its election monitors are not permitted inside Texas voting places and central count stations. A spokesperson from her office said that there is nothing Nelson can do to change who is allowed in a polling place, and that the office is merely following the law. 

The Texas Election Code lists who is authorized to be inside a polling place, and does not include federal election monitors. Election monitors are still allowed outside polling places.

The DOJ hasn’t said whether the monitors would be inside or outside the polling places. Hard to tell what effect a TRO could have beyond the limits of Texas law. However:

In light of the Shelby County decision, the department is not relying on the Section 4(b) coverage formula as a way to identify jurisdictions for election monitoring. The department will continue to engage OPM observers where there is a relevant court order and will continue to conduct our own monitoring around the country, without relying on the Section 4(b) formula. 

This means that the department will be able to send fewer people than in similar past elections to watch the voting process in real-time. However, the department is still committed to using all of the tools at our disposal to enforce the federal voting rights laws — including working with Congress in ways that may increase our capacity. 

Shelby County also impacts the department’s enforcement efforts in two other respects. Section 4(f)(4) of the Voting Rights Act requires specific jurisdictions — jurisdictions dependent on a part of the Section 4(b) formula — to provide election-related materials or information in different languages. In light of Shelby County, the department is not enforcing this provision. 

That said, two other provisions of the Voting Rights Act — Sections 4(e) and Section 203 — continue to provide substantial protections for language minorities nationwide or in geographies tied closely to consistently updated U.S. Census determinations. Both of these provisions include mandates to translate election-related materials or information, and neither is in any way affected by Shelby County. 

Finally, Section 4(a)(1) of the Voting Rights Act prohibits the use of tests or devices to deny the right to vote in specific jurisdictions, directly dependent upon the coverage formula in Section 4(b). In light of Shelby County, the department is not enforcing this provision. However, a later amendment to the Voting Rights Act, in Section 201, established a permanent nationwide ban on such tests and devices. Section 201 was not in any way affected by Shelby County; it remains fully enforceable and protects voters nationwide.

Federal law still trumps state law, so DOJ may have the law on its side despite Shelby. Enough to get monitors into the polling place, anyway. Only, however, on certain grounds.

It’ll be interesting to find out.