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And it’s off to SCOTX for the Republicans who want to stop drive-through voting

It was inevitable.

State and local Republicans have taken their challenge of drive-thru voting in Harris County to the Texas Supreme Court.

In separate petitions, the Texas and Harris County GOP are asking the state’s highest court to limit drive-thru voting, which Clerk Christopher Hollins opened this year at 10 sites and made available to all voters.

The GOP argues the new practice is a form of curbside voting, which only is allowed for people who are sick at the time, have a physical condition that requires personal assistance or are at risk of injured health if they venture inside a polling location.

[…]

“The aforementioned criteria for curbside voting is equally applicable to ballots by mail voting,” the petition said. “With respect to ballot by mail voting, the Texas Supreme Court has already held that a voter’s lack of immunity to COVID-19, without more, is not a ‘disability’ as defined by the Election Code, and therefore, is not a sufficient basis to permit a voter to validly vote by mail.”

The county argues its drive-thru sites are not a form of curbside voting. The 10 sites are contained within a parking garage or tent facilities, a quality attorneys argue satisfies the criteria to be polling sites in their own right.

“The basic requirement for polling places is that it’s in a building,” Assistant County Attorney Doug Ray said. “We’re interpreting that as long as we have a permanent or temporary structure,” it’s OK.

Even if it were curbside voting, Ray argued, it is up to the voter to decide whether he or she has a disability. The county does not have the legal authority to question disability claims, he said.

It is not clear how the votes already cast at drive-thru sites would be handled if the Supreme Court were to side with the plaintiffs.

The state GOP’s petition asks for a ruling forcing Hollins to “reject any curbside voting efforts” that do not comply with its interpretation of the law.

See here and here for the background, and here for both of the plaintiffs’ petitions. I have no idea how quickly the Supreme Court might move on this, but we’ve had three full days of drive-through voting so far, and going by the daily report, thousands of people have used it. I can’t imagine any ruling for the plaintiffs that wouldn’t be deeply disruptive, and that’s exactly the sort of thing that’s not supposed to happen with court rulings close to an election. But like I’ve said, the Supreme Court’s gonna do what the Supreme Court’s gonna do, and all we can do is adjust when they do it. Stay tuned.

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7 Comments

  1. Kibitzer Curiae says:

    ELECTION MANDAMUS GALORE

    Current episode: Does Drive-Thru Equal Curbside?

    Seemingly, the Supremes can’t get enough of the Hotze/Woodfill serial litigation material: Relator’s Motion for Leave to Exceed Word Count granted 10/16/2020 in No. 20-0819.

    The have not yet requested a response in the Hotze case, but they did so in the mandamus case filed on behalf of the GOP Texas by Andy Taylor, which was docketed under No. 20-0815. The response is due no later than 4:00 p.m., October 19, 2020.

    Woodfill/Hotze filed an emergency motion for stay in addition to their mandamus petition. Andy Taylor did not. Who knows what might have happened if he had done so? See more on his tactical move below.

    The other key difference here is that the Andy Taylor first filed his mandamus petition in the Houston court of appeals, before bringing the same claim in the supreme court, which is the proper procedure. Hotze/Woodfill didn’t bother to do that, even though by now they are certainly aware that they are not supposed to skip the intermediate court of appeals. What with the experience that comes from being seasoned serial litigators.

    SCOTX OUTCOME A FORGONE CONCLUSION? … HOPELESS?

    Given the track record of the all-GOP Supreme Court, there may be grounds for pessimism, alas, but that doesn’t mean that the shenanigans shouldn’t be exposed. Perhaps there is even a scintilla of light at the end of the tunnel.

    Let’s start with the red flags right in the record:

    INDICIA OF A FAILED BID TO PROCURE A RAPID RULING FROM SCOTX

    Looking over the Texas GOP petition in No. 20-0815 (FILED-stamped October 14, 2020), we see GOP Attorney Andy Taylor representing to the Supremes that the Houston Court of Appeals has *not yet* ruled on the petition filed with that court, and urging rapid action on the petition by the Supremes.

    — gimmie-a-writ petition quote start —

    Disposition in the Court of Appeals

    An original petition for writ of mandamus requesting the same relief was filed in the Fourteenth Court of Appeals on October 12, 2020. As of the time of filing of this Petition for Writ of Mandamus in this Court, no disposition has been made. However, given the exigency of the circumstances, including the fact that Early Voting commenced on October 13, 2020, Relators seek relief in this Court. Relators contend that it would have been appropriate under the circumstances to forego seeking mandamus first in the court of appeals, given that “the imminence of the election places this case within the narrow class of cases in which resort to the court of appeals is excused.” Bird v. Rothstein, 930 S.W.2d 586, 587 (Tex. 1996) (orig. proceeding);  see also TEX. R. APP. P. 52.3(e). Indeed, for the same compelling reason that this Court should exercise jurisdiction even though mandamus relief was sought but not disposed first in the court of appeals, Relators seek immediate relief without requesting additional briefs on the merits. See TEX. R. APP. P. 52.8(b).

    — gimmie-a-writ petition quote end —

    If you go to the bottom of the document, however, the Houston COA’s October 14, 2020 dismissal opinion is attached. – How is that possible? Did he lie?

    Here is the most likely scenario: Taylor e-filed the petition without serving respondent Chris Hollins before the Houston COA ruled, trying to get ex parte relief for the GOP from the all-GOP high court immediately, pitching his theory that drive-through voting is really curb-side voting, while being able to say that they went through the motions of having first filed in the court of appeals.

    His filing in the SCOTX was likely rejected for defect(s) in form, and he then resubmitted it *after* the Houston COA had ruled in the interim. The resubmitted mandamus petition was then accepted by the clerk and backdated to the original efile date/time, with the copy of the freshly-issued Opinion from the Fourteenth Court of Appeals attached at the bottom of the petition. But the (now false) representation proffered as rationale for immediate action remained in place. And the SCOTX promptly requested a response even though the docket does not reflect that Taylor even submitted a mandamus record.

    Indicia of a failed ex-parte bid

    The Texas e-file system provides the option to either FILE ONLY with the court or FILE AND E-SERVE other parties/attorneys on the case.

    In his CERTIFICATE OF SERVICE, Taylor claimed to have electronically served the opposing party at the same time he filed his petition in the Supreme Court, but there is no system-generated certificate of e-service at the bottom of document, which is a strong indication that he did not. Look at the Woodfill petition in No. 20-0819 and you will see what the AUTOMATED CERTIFICATE OF E-SERVICE looks like.

    For his part, Woodfill is playing games too. He again e-served County Attorney Vince Ryan only, but did not serve Chris Hollins himself or Chris Hollins’ retained appellate attorney, whose identity is known to him from previous cases in the series. She previously complained about not being given notice, but that was ignored.

    BOTTOM LINE: If your fellow partisans sit on the high court, procedural shenanigans at the expense of the opposition party/opposing party are no big deal. Which is why it would be desirable to have mixed partisan composition of multimember courts, especially in the court of last resort. There would be a better prospect for procedural manipulations and gamesmanship to be exposed and discouraged, and some checks imposed. Complaints of dubious litigation tactics and improprieties, when raised, might not be as readily ignored or condoned. The legitimacy of the judicial system, and respect for it, would be enhanced.

    What’s at stake is not just the integrity of the elections and their results; what’s at stake is the integrity of the third branch of government, and the appearance thereof.

    PENDING DRIVE-THRU VOTING MANDAMUS CASES AGAINST HARRIS COUNTY CLERK CHRIS HOLLINS:

    IN RE JUAN GERARDO PEREZ PICHARDO AND THE REPUBLICAN PARTY OF TEXAS, Tex. 20-0815 (Andy Taylor for relators) (Petition FILED-stamped 10/14/2020 11:37 AM)

    IN RE STEVEN HOTZE, M.D., HARRIS COUNTY REPUBLICAN PARTY, KEITH NIELSEN, AND SHARON HEMPHILL Tex. 20-0819 (Jared Woodfill for relators)(Petition FILED-stamped 10/15/2020 1:49 AM)
    http://search.txcourts.gov/Case.aspx?cn=20-0819&coa=cossup

  2. Kibitzer Curiae says:

    EVEN ON THE WEEKEND: CONCIERGE SERVICE FOR STEVEN HOTZE, FRIENDS AND FELLOW-PARTISANS, AT THE SCOTX

    Saturday, October 17, 2020

    Mr. Jared R. Woodfill
    Woodfill Law Firm, P.C.
    3 Riverway, Suite 750
    Houston, TX 77056
    * DELIVERED VIA E-MAIL *

    Mr. Vincent R. Ryan Jr.
    Harris County Attorney’s Office
    1019 Congress, 15th Floor
    Houston, TX 77002
    * DELIVERED VIA E-MAIL *

    RE: Case Number: 20-0819
    Court of Appeals Number:
    Trial Court Number:

    Style: IN RE STEVEN HOTZE, M.D., HARRIS COUNTY REPUBLICAN PARTY, KEITH
    NIELSEN, AND SHARON HEMPHILL

    Dear Counsel:

    The Supreme Court of Texas requests that respondent file a response to the petition for writ of mandamus in the above-referenced case. The response is due to be filed on 5:00 p.m., Monday, October 19, 2020. PLEASE NOTE pursuant to TEX. R. APP. P. 9.2(c)(2) all documents (except documents submitted under seal) must be e filed through eFileTexas.gov.

    Sincerely,

    Blake A. Hawthorne, Clerk
    by Claudia Jenks, Chief Deputy Clerk

    COMMENT:

    If you e-file on the weekend, your document won’t even be FILED-stamped until the next Monday (assuming it’s a business day for court business). See TRAP 9.2 (c)(4)(A) (“if a document is transmitted on a Saturday, Sunday, or legal holiday, it is deemed filed on the next day that is not a Saturday, Sunday, or legal holiday”).

    So here, the SCOTX is once more swinging into action to help out a special set of supplicants when the SCOTX is supposedly not even open for business (including filing), and is doing so in a original proceeding that should not be commenced in the supreme court without have first being presented to the court of appeals.

    Hotze/Woodfill and their bevy of co-petitioners were told as much less than two weeks ago in No. 20-0739 in an opinion by Chief Hecht (“Relators delayed in challenging the Governor’s July 27 proclamation for more than ten weeks after it was issued. They have not sought relief first in the lower courts that would have allowed a careful, thorough consideration of their arguments regarding the Act’s scope and constitutionality.’). https://www.txcourts.gov/media/1449868/200739.pdf

    But that was then and now we have a new situation.

    Hollins’ response in Hotze Et Al’s iteration No. 20-0819 is now due one hour after his response is due in the parallel case brought by Andy Taylor, for convenient joint and expedited consideration.

    To further illuminate the background, here is what a quartet of Supremes said in Salon a la Mode, in a concurrence by Justice Blacklock:

    “The Supreme Court is generally a court of last resort. Our original jurisdiction to issue the requested relief is doubtful, and the petition is presented without supporting affidavits and with no record on which the Court could base its inquiry. Just as other government officials must not exceed their rightful power in extraordinary circumstances, this Court also must not do so. I therefore concur in the denial of the petition.”

    In re Salon a La Mode, No. 20-0340, 2020 WL 2125844 (Tex. May 5, 2020) (Blacklock, J., concurring)

    Granted, this time Hotze/Woodfill and the Harris County GOP bring an Election Code mandamus relying on § 273.061, but look what the Code has to say on the matter (in addition to establishing concurrent jurisdiction):

    Sec. 273.061. JURISDICTION. The supreme court or a court of appeals may issue a writ of mandamus to compel the performance of any duty imposed by law in connection with the holding of an election or a political party convention, regardless of whether the person responsible for performing the duty is a public officer.

    Sec. 273.062. PROCEEDING TO OBTAIN WRIT. A proceeding to obtain a writ of mandamus under this subchapter shall be conducted in accordance with the rules pertaining to original proceedings of the court in which the petition is filed.

    So what about those rules?

    Regarding original mandamus proceedings, the TRAPs provide as follows:

    “The petition must state, without argument, the basis of the court’s jurisdiction. If the Supreme Court and the court of appeals have concurrent jurisdiction, the petition must be presented first to the court of appeals unless there is a compelling reason not to do so. If the petition is filed in the Supreme Court without first being presented to the court of appeals, the petition must state the compelling reason why the petition was not first presented to the court of appeals.”). Tex. R. App. P. 52.3(e) (Statement of Jurisdiction).

    Hotze/Woodfill offer no reason — compelling or otherwise — that wouldn’t also apply in the Court of Appeals.

    Their operative compelling reason seems to be that they won’t get their way in the court of appeals (what with Andy Taylor’s petition having been dismissed based to his clients’ lack of standing).

    Additionally, the quickie filing in the Texas Supreme Court promises to provide greater publicity. Hotze/Woodfill will get to piggy-back onto the mandamus case Andy Taylor brought on behalf of the State GOP, and the two cases will likely be resolved in a coordinated fashion, something we just saw happen on October 7, 2020.

    GOT PRECEDENT?

    Yes. We now have new precedent for special measures to thwart Clerk Hollins’ unprecedented innovations in election administration to facilitate rampant voter participation in Harris County. New precedent to stop the unprecedented. With mid-week opinion delivery, no less.

  3. Mainstream says:

    Another strange Hotze/Woodfill detail: The Sunday Houston Chronicle had an advertising supplement paid for by their Conservative Republicans of Harris County PAC. After years of of complaining that liberals are ‘for teaching homosexuality as an acceptable alternative lifestyle”, Dr. Hotze is now touting that “President Trump’s administration has defended rights of the LGBTQ community”, praising the President for nominating two openly gay federal judges, naming the first openly gay cabinet member, protecting the rights of LGBTQ community in the workplace, etc. What a strange political year.

  4. Jen says:

    Who is this ad aimed at? I guess maybe trying to convince some woman or other that they are moderates (LOL). The gays I know are either progressives or hard core
    trump cultists, these last somehow believing that a) they will be welcomed (never) and b) being dutiful cult members and hewing strictly to the trump dogma somehow makes up for them being gay. Won’t change anything. Pretty weak sauce.

    Communications from inside the right wing Echo Chamber will get stranger and stranger as they continue to lose touch with sane people.

  5. Jen says:

    p.s Kibitzer -thank you again for these notes on the court proceedings, otherwise we would never know about all of the partisan legal irregularities.

  6. Jen says:

    pps. the ad is in the same issue of the Chronicle that has the story about how Governor Abbott has changed the rules so that social workers can now refuse to help disabled people and LGBTQ+ folk. To please the worst elements of the Right of course, like Dr. Hotze.

    So you have a choice, team Hotze either is bashing gays again and pushing the disabled under the bus, or… they LUV LUV LUV the gays. (no word on the disabled)

  7. […] don’t know when the Supreme Court might rule on this facially ridiculous challenge, but I will note that not only was it filed after early voting had begun, it’s now been a […]