Hopefully, this will be the end of this particular nonsense.
A federal judge Monday rejected a request by a conservative activist and three Republican candidates to toss out nearly 127,000 votes cast at drive-thru polling sites in Texas’ most populous, and largely Democratic, county.
The ruling by U.S. District Judge Andrew Hanen, a George W. Bush appointee, follows two earlier decisions by the all-Republican Texas Supreme Court rejecting similar efforts by Republicans challenging the validity of drive-thru voting in Harris County. Although Hanen’s ruling is still expected to be appealed quickly, it appears to clear the way for counting the early voting drive-thru ballots on Election Day.
In his ruling from the bench, Hanen said he rejected the case on narrow grounds because the plaintiffs did not show they would be harmed if the drive-thru ballots are counted. He noted, however, that the U.S. 5th Circuit Court of Appeals could think differently if the cases reaches them.
If he had ruled on the larger issues in the case, Hanen said he would have rejected the request to toss out votes already cast. But Hanen said he would have shut down Harris County’s drive-thru polling places for Election Day, because the tents being used for the sites don’t qualify as “buildings” under state election law.
“If I were voting tomorrow … I would not vote in a drive-thru just out of my concern as to whether that’s illegal or not,” he said. “I am going to order the county to maintain all the drive-thru voting records … just in case the 5th Circuit disagrees.”
Ten percent of Harris County’s in-person early voters cast their ballots at the county’s 10 drive-thru locations. Dismissing the votes would have been a monumental disenfranchisement of voters in a presidential election besieged with fights over voter suppression and fraud.
The judge ruled from the bench after a hearing with plaintiffs, the county and numerous Texas and national voting rights and political groups joining Harris County to argue that the drive-thru program was legal under Texas election law.
See here, here, and here for the background. This is obviously a great relief, because as ridiculous as this lawsuit was, the cost of an adverse ruling was sky-high. There will be an appeal, but it looks like that will be to stop drive-through voting on Election Day, not to continue the pursuit of throwing these votes out. I think.
On that note: You saw Judge Hanen’s words about voting at a drive-through location today. Drive-through locations will be open today, and if you have the need to use one, then use it. I believe there’s form you can use to attest to your need to vote curbside, which is legally different than drive-through and which is expressly allowed under Texas law (the whole dispute here ultimately boils down to the allegation that drive-through voting is an illegal expansion of curbside voting). Otherwise, I agree with the lawyers who say just park and go inside to vote. Don’t take the chance that this could come up again after the election.
Statements from the ACLU and the Texas Civil Rights Project are beneath the fold, and a statement from the Texas Democratic Party is here. This Twitter thread by Raffi Melkonian is a terrific blow-by-blow account of the hearing and ruling, with some explanations thrown in for the non-lawyers. The Chron, Houston Public Media, the Press, Mother Jones, Politico, and Daily Kos have more.
UPDATE: And so the appeal is happening in the night. Here’s another Twitter thread to keep track. I hope like hell I don’t have to rewrite this whole damn post in the morning.
UPDATE: As of 9 PM, no actual filing yet.
UPDATE: OK, the petition has been filed. They are just asking for drive-through voting to be halted for Election Day. Stay tuned.
UPDATE: Hopefully, this is the final final update:
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Just now: The Fifth Circuit Court of Appeals has denied motion by Republican plaintiffs to halt drive-thru voting in Harris County (#Houston) on Election Day. County clerk has shut down 9 of 10 sites anyway— Zach Despart (@zachdespart) 11:30 PM – 02 November 2020
You can see the denial in its glory here. The remaining drive-through location will be at the Toyota Center, which no one can deny is a building; the reason that Judge Hanen would have halted drive-through voting on Election Day is because the law is actually different for Election Day than it is for early voting, specifying “buildings” instead of “structures”. At this point, there really isn’t anything left to litigate. Happy voting to whoever will be doing so today.
Mimi Marziani, President of the Texas Civil Rights Project and co-chair of the Texas Right to Vote Network releases the following statement on the federal court’s decision to dismiss the petition seeking to throw out over 127,000 ballots cast at drive-thru voting sites in Harris County, ruling that the plaintiffs in the case lack standing to sue. The decision dismisses the case in its entirety.
“This last-minute petition was seeking to do something unthinkable–cancelling over 127,000 votes cast in good faith by voters who did everything by the book. This extreme argument is well outside the bounds of any legal precedent and, in fact, prohibited by federal voter protection laws. Because it was utterly deficient, the plaintiffs were never going to win on legal grounds, but in fact this was never about winning in the court of law. It was about manufacturing chaos and fear, in an antidemocratic attempt to keep voters from turning out.
Texas Voters have too much grit to be intimidated, which is why over 9.7M have already turned out before Election Day. The fabric of our democracy is strong, and together we are rejecting those who seek to undermine our country’s core values. I am confident that Texans will continue showing up to the polls and making their voices heard.”
Voters can find their polling location at www.votetexas.gov or call the nonpartisan election protection coalition at 866-OUR-VOTE for any questions on casting their ballot.
A federal court has blocked efforts to invalidate nearly 127,000 early votes cast via drive-thru voting in Harris County, Texas, the state’s largest county and the third largest county in the country.
The American Civil Liberties Union of Texas and ACLU national moved to intervene in the case last night and had the following reaction to U.S. District Judge Andrew Hanen’s bench decision today:
“This is what democracy looks like,” said Andre Segura, legal director of the ACLU of Texas. “This is the third attempt by these individuals to throw out votes legally cast, and once again they’ve been denied. Our justice system did its duty today to ensure voting rights are protected and our democracy remains intact.”
“This ruling is a huge victory for Texas voters,” said Sophia Lin Lakin, deputy director of the ACLU’s Voting Rights Project. “The court was right to reject this outrageous attempt to undermine a true and accurate vote count and improperly influence the outcome of the election.”
“Today’s decision was absolutely necessary to reestablish some confidence in the preservation of our voting rights. This is a win for Texas voters and a win for democracy!” said Grace Chimene, president of the League of Women Voters of Texas. “Every Harris County voter who cast their ballot at a drive-thru polling site can rest assured that their votes are valid and will be counted. Today, the court protected our country’s commitment to ‘one person, one vote.’ We are encouraged by the incredible early voter turnout in Texas, and today’s decision ensures that more than 120,000 Harris County voters will be included in that number.”
The ACLU intervened on behalf of the League of Women Voters of Texas and several individuals who voted using the drive-thru option.
Case details: https://www.aclu.org/cases/hotze-v-hollins
Could someone please remind me of Hollins’ situation. Am I remembering correctly that he’s a temp who isn’t going to run for the office when it’s on the ballot again? If so, too bad, because he has been outstanding in this job.
Flypusher – Correct. He was appointed as an interim, and it is my understanding that he did not apply for the election administrator’s job. Teneshia Hudspeth is the Dem candidate for County Clerk – Hollins did not put his name in for the nomination. I agree he’s been outstanding, and I hope we follow the examples he set going forward.
WANT OF STANDING VERSUS MERITS OF CLAIMS
The appeal from a denial of a preliminary injunction on standing grounds puts Hotze v. Hollins into a difficult posture for an immediate reversal on appeal. Since Judge Hanen didn’t order anything by way of affirmative relief (not even the segregation of the memory cards in his *written* order), there is nothing to stay on an emergency basis. The Fifth would have to “create” standing, i.e., disagree with Judge Hanen’s resolution of that threshold issue, and their decision would then of course trump Hanen’s ruling. But they would also have to issue their own immediate injunction to prospectively stop drive-thru voting on Election Day to stop “illegal ballots” from being cast.
Hanen provided for that scenario by offering his analysis, findings, and conclusions on whether the preliminary injunction elements were satisfied by the Plaintiffs. In other words, he sketched out what his preliminary injunction would look like in substance, and the Fifth could then “affirm” what is currently the blueprint-part of his opinion order by issuing the coterminous injunction on appeal, having resolved the standing issue differently.
Hotze et al, however, had the bad luck of drawing a trio of Honorable Reasonables last night. So no relief in time to stop drive-thru voting today.
But that couldn’t have been predicted, what with there being a conservative majority on the Fifth Circuit. What with at least one of them already having endorsed the “Only-the-Lege” theory of election law and administration.
A CIRCUIT FIX FOR LACK OF STANDING?
Nothing can be taken for granted. Something similar has already happened in the 8th Circuit, in a case in which the district court likewise found a lack of standing. The plaintiffs were Republican would-be Electors, i.e. people who would actually cast the electoral votes for Trump if he were to win the state. The designated Electors were deemed the equivalent of political candidates under state law, and the appellate court issued its own injunction against the Secretary of State, an injunction that the lower court thought it had no jurisdiction to issue.
In the Harris County case, we have actual Republican candidates for various offices as plaintiffs, not just Steven Hotze, who is merely a voter. And the novel theory of standing (having an interest in the accuracy of the vote count achieved by eliminating “illegally cast ballots”) could be adopted with retroactive effect on appeal, thereby curing the lack of standing of the GOP candidates-plaintiffs.
WHAT MAKES A CAST VOTE “ILLEGAL”?
What’s disconcerting here is that Judge Hanen actually used the term “illegal” with respect to drive-thru voting in tents on election day (“No one should want votes to be cast illegally or at an illegal polling place.”), and he also referenced AG Paxton’s advisory on the matter of curbside voting.
Note that the “illegality” of the votes would be essential both to the merits of the plaintiffs’ claim and their assertion of standing based the theory that these “illegal” votes distort the accurate total of the legally countable votes (and hurt them) if they are *not* eliminated.
In effect, the GOP Plaintiffs’ claim of harm depends on their asserted “right” to disenfranchise the voters that drove into the drive-thru “trap” unaware that their vote was “illegal” (or later to be declared illegal by a court). Illegal votes taint the integrity of the elections. If these drive-thru votes were indeed declared “illegal”, the candidates would arguably have standing because it could affect their vote tallies. It would be more than an undifferentiated concern over election integrity and conformity with the law.
Notwithstanding the dismissal on standing grounds, Judge Hanen’s ruling was sufficient to create legal uncertainty and risk, and even CNN’s Chris Cuomo brought that up when he interviewed Hollins last night.
THE GRAND GOTCHA GAMBIT
One synergistic reading of all this last-minute legal skirmishing is that Hollins was being set up to be the fall guy if/when the Fifth or the SCOTUS would later throw out the drive-thru votes cast on Election Day.
Even if Judge Hanen’s ruling was not legally binding — the argument would go — Hollins was thereby put on notice of the likely illegality of his drive-through voting centers, and should therefore have heeded the warning.
And so he did. By closing the drive-thru voting centers except the one at the Toyota Center, which is not a tent.
The irony, of course, is that Hotze et all thus achieved what they wanted at least in part — even without standing, and without winning an injunctive order either in the district court or an emergency order on appeal.
They had their way, in part, thanks to the now ascendant judicial philosophy that critics might call text fetishism. Which here involves the finer points of distinguishing structures and buildings that only Lords and Ladies of the Lexicon have the privilege to resolve. Which, as we can see, gives judges the ability to throw monkey wrenches into the machinery set up to transform the popular will into selection of those who will govern.
CORE DEMOCRATIC PRINCIPLES AND COMMON SENSE VS. THE RULE OF LAW AS MADE BY JUDGES
Seriously, can you think of any good reason why the “legality” of drive-thru voting should depend on whether it takes place *before* or *on* election day, or why the “legality” of your vote should depend on what kind of building materials surrounds you (walls-on the sides, ceiling/roof structure-above) while making your selections on the e-slate tablet)?
Your opinion on this, of course, doesn’t matter. It’s the prerogative of judges to (un)make sensible public policy and thwart best practices in public administration during an ongoing pandemic by judicial say-so (or by “fiat”, to be fancy). And it takes armies of lawyers to fight such skirmishes over policy and implementation in the courts.
Meanwhile, the affected public can’t even be sure what the “law” is until the highest court has had the last word.
TEXTUAL STICKLERISM VS. THE BIG PICTURE
All the while it should go without saying that the paramount value at stake here is the smooth functioning of democracy, and the principle that every vote should count when the people chose those who govern.
Votes should not be thrown out based on technicalities or based on which side wins in word games or battles with dictionaries.
Worse still when the unvarnished purpose of it all is thwart the will of the electorate and change the outcome, turning losers into winners.
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