Voters in the state’s most populous county can continue casting their ballots for the fall election at 10 drive-thru polling places after the Texas Supreme Court Thursday rejected a last-minute challenge by the Texas and Harris County Republican parties, one of many lawsuits in an election season ripe with litigation over voting access.
The court rejected the challenge without an order or opinion, though Justice John Devine dissented from the decision.
[…]
Though the program was publicized for months before the ongoing election, it was not until hours before early voting started last week that the Texas Republican Party and a voter challenged the move in a state appeals court, arguing that drive-thru votes would be illegal. They claimed drive-thru voting is an expansion of curbside voting, and therefore should only be available for disabled voters.
Curbside voting, a long-available option under Texas election law, requires workers at every polling place to deliver onsite curbside ballots to voters who are “physically unable to enter the polling place without personal assistance or likelihood of injuring the voter’s health.” Posted signs at polling sites notify voters to ring a bell, call a number or honk to request curbside assistance.
The lawsuit also asked the court to further restrict curbside voting by requiring that voters first fill out applications citing a disability. Such applications are required for mail-in ballots, but voting rights advocates and the Harris County Clerk said they have never been a part of curbside voting.
The Harris County clerk argued its drive-thru locations are separate polling places, distinct from attached curbside spots, and therefore available to all voters. The clerk’s filing to the Supreme Court also said the Texas secretary of state’s Office had approved of drive-thru voting. Keith Ingram, the state’s chief election official, said in a court hearing last month in another lawsuit that drive-thru voting is “a creative approach that is probably okay legally,” according to court transcripts.
See here, here, and here for the background, and here for County Clerk Chris Hollins’ attempt to get the Secretary of State on record about this. The decision came down a couple of hours after County Judge Lina Hidalgo (among others) called on Greg Abbott to do the same. This would have been a monumental middle finger to the voters of Harris County, and an utter disgrace for the Supreme Court, had they upheld the Republican challenge. I don’t know what took them so long, but if they’re going to be slow about it, they’d better get it right, and this time they did. Exhale, everyone.
We shouldn’t leave this item without giving Hollins the victory lap he deserves:
.
Statement from @CGHollins:
“Once again, the law is on our side. The Court’s decision to uphold the legality of Drive-Thru Voting as a safe and convenient way to vote underscores that this November, democracy is on the ballot. ” (1/4)— Harris County Clerk (@HarrisVotes) 4:49 PM – 22 October 2020
There’s a bit more on Hollins’ Twitter feed. When he says that every county should do it like this, he’s absolutely right. You can see all the SCOTX denials here, and the Chron has more.
(Oh, and let’s please do remember this when John Devine is up for election next. The rest of the court may have done the right thing, but that guy has truly got to go.)
Color me surprised. This is the Texas Supreme Court?
They were probably just throwing a bone to make it appear as if they care about voters rights since drive-thru votes are a miniscule % of the vote total.
Yes, they decided to try to save themselves, since a number of GOP Justices are on the ballot. The State GOP has stirred up a horde of angry voters, and the Republican SCOTX decided to run for cover. Hopefully they will get voted out anyway.
Too late, I voted for all their D opponents.
NOT SO FAST ON DRIVE-THRU VOTING
Hollins: “Once again, the law is on our side. The Court’s decision to uphold the legality of Drive-Thru Voting as a safe and convenient way to vote underscores that this November, democracy is on the ballot. ”
The devil’s advocate would retort as follows:
In the final analysis, the law is whatever the Supreme Court says it is, particularly on an issue of statutory interpretation of state law on which the state supreme court has the last word. Even fewer than 9 of 9 Supremes can easily put you on the wrong side of the law after the fact. Thanks to complete GOP control of the SCOTX–at least until the end of the year–there is safety in numbers.
All it takes as a majority.
Here, some of the reactions to the high-court action are overly celebrational. True, the Texas Supreme Court did not give the GOP what they wanted, but they did NOT rule on the issue of whether the Harris County drive-thru voting centers fit the definition of polling places under the Texas Election Code, or whether they are properly characterized as noncompliant forms of curbside voting (as argued by the GOP relators).
Put succinctly, there is no affirmative, much less definitive, ruling in Hollins’ favor. Indeed, there is no ruling on the pivotal legal issue at all.
DECISION RATIONALE BY REFERENCE
If you look at the October 22, 2020 SCOTX orders sheet, you will see not only that the Texas Supreme Court denied mandamus without opinion, but refers the reader to the opinion issued in cause number 20-0739, In re Steven Hotze, M.D., et al. That case did not present the statutory construction issue over drive-thru voting. No. 20-0739 is the prior Hotze mandamus in which the Court issued three
opinions. See all three on one web page here: https://scholar.google.co.uk/scholar_case?case=9215982315870976995&q=20-0739&hl=en&as_sdt=4,44
Only the concurring opinion by Justice Blacklock (joined in part by Busby) addresses the jurisdictional issues.
THE SUPREME COURT OF TEXAS
Orders Pronounced October 22, 2020
THE FOLLOWING PETITIONS FOR WRIT OF MANDAMUS ARE DENIED:
20-0815
IN RE JUAN GERARDO PEREZ PICHARDO AND THE REPUBLICAN PARTY OF TEXAS; 14th Court of Appeals District (14-20-00697-CV, ___ SW3d ___, 10-14-20) as amended
Justice Devine notes his dissent to the Court’s denial of the petition for writ of mandamus relief.
See opinion issued in cause 20-0739, In re Steven Hotze, M.D., et al.
(Justice Guzman and Justice Boyd not participating)
20-0819
IN RE STEVEN HOTZE, M.D., HARRIS COUNTY REPUBLICAN PARTY, KEITH NIELSEN, AND SHARON HEMPHILL
relators’ emergency motion for temporary relief denied
Justice Devine delivered a dissent to the Court’s denial of mandamus relief and emergency stay.
See opinion issued in cause 20-0739, In re Steven Hotze, M.D., et al.
LACHES VS. LACK OF STANDING
By referencing Tex. Cause No. 20-0739 in lieu of issuing an opinion deciding the current cases, the majority (ie, the Court) decided the two drive-thru mandamus cases based on the same rationale it used to deny relief in the earlier case, and that rationale was that the mandamus petition was not brought in a timely fashion. See In re Hotze, No. 20-0739, 2020 WL 5919726, at *3 (Tex. Oct. 7, 2020)(“When the record fails to show that petitioners have acted diligently to protect their rights, relief by mandamus is not available.”) That’s a procedural rationale that is sufficient for the Court to decline to even consider the merits, not to mention granting the requested relief.
Note also that the statutory construction issue was not addressed by the Fourteenth Court of Appeals either. See In re Pichardo, No. 14-20-00697-CV, 2020 Tex. App. LEXIS 8122 (Tex. App.-Houston [14th Dist.] Oct. 14, 2020, orig. proceeding) (per curiam) (mem. op.).
That court dismissed the mandamus petition as jurisdictionally barred based on the conclusion that the relators (petitioners) lacked standing under Election Code section 273.061, which is the legal basis for starting an election-related case in the court of appeals.
The same court had disposed of a separate case challenging voter registration on the same ground. See In re Pichardo, No. 14-20-00685-CV, 2020 WL 5950178 (Tex. App.-Houston [14th Dist.] Oct. 8, 2020, orig. proceeding) (per curiam) (mem. op.) (“Pichardo lacks standing because he has not shown that he has an interest or a particularized injury that is distinct from that of the general public.”).
To be sure, the 14th COA also cited the Supreme Court’s decision in In re Hotze, No. 20-0739, but that precedent does not support a jurisdictional dismissal because only Blacklock’s concurrence espouses the jurisdictional defect(s). The Supreme Court’s opinion in 20-0739 simply does not pivot on jurisdiction. It implies, much rather, that the Court thought it had jurisdiction because it chose to consider the timeliness issue, which is a discretionary consideration in the mandamus context (as also illustrated by Justice Devine taking issue with the Court on whether that was a valid ground for denying relief).
It’s concerning because it suggests that the SCOTX might be leaving its options open.
DRIVE-THRU STILL OPEN
Since the statutory construction issue concerning drive-thru voting centers was not authoritatively decided one way or the other, it remains an unresolved legal question, and could be relitigated. The most obvious scenario would be an election contest by a losing Republican candidate. Another possibility would be another ultra-vires suit by the Attorney General.
For the same reason, the Supreme Court’s action yesterday has not mooted the real-life relevance of the pleas of Clerk Hollins and County Judge Hidalgo to the Secretary of State and the Governor to acknowledge the validity of the drive-through ballots.
Note that one of the relators is a Republican candidate for a Harris County district court bench. Because that is a county-level race, she will almost certainly lose, and such defeat would at least satisfy one requirement for standing to bring a challenge as an adversely affected party: as an unsuccessful candidate, not merely a discontented voter (such as Steven Hotze) with the attendant standing problems. The argument in the election contest would then be that the drive-thru votes should not have been counted because they were “illegal”, and that the outcome for the complaining candidate would have been different. It may be a far-fetched scenario, but that doesn’t mean it won’t happen. At least Justice Devine would no doubt find the clamor worthy of serious consideration.
Needless to say, such a challenge to the election outcome would be tantamount to an effort at post-hoc judicial disenfranchisement of a huge number of voters who cast their ballots in good faith from the comfort and safety of their vehicles, believing their votes would count and help determine winners and losers.
Kibitzer: Interesting points on the legal technicalities. It seems though that Hotze’s gotten the message and backed off.
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