One last, desperate attempt to kill drive-though voting

These guys really suck. Not much more can be said.

A new challenge to Harris County’s drive-thru voting sites, filed by two GOP candidates and a Republican member of the Texas House, asks the state Supreme Court to void ballots “illegally” cast by voters in cars.

That could put more than 100,000 ballots at risk, drawing sharp criticism from Democrats and raising fears among voters, including those with disabilities and others who were directed into drive-thru lanes as a faster method of voting.


One of the unsuccessful challenges was filed by the Republican Party of Texas. The second was from the Harris County GOP, activist Steven Hotze, and Sharen Hemphill, a GOP candidate for district judge in Harris County. Neither petition sought to void votes.

That changed with the latest petition filed shortly before 11 p.m. Tuesday by Hotze, Hemphill, GOP congressional candidate Wendell Champion, and state Rep. Steve Toth, R-The Woodlands.

The new petition asks the all-Republican Supreme Court to confiscate memory cards from voting machines at drive-thru locations and reject any votes cast in violation of state election laws.

The petition argues that drive-thru voting is an illegal expansion of curbside voting, which state law reserves for voters who submit a sworn application saying they have an illness or disability that could put them at risk if forced to enter a polling place.

“Hollins is allowing curbside/drive-thru voting for all 2.37 million registered voters in Harris County. This is a clear and direct violation of his duties,” the petition argued.

But Hollins has said drive-thru voting is just another polling place with a different layout and structure, and that it was approved by the Texas secretary of state’s office before being adopted.

Vehicles form lines and enter the voting area one at a time, where a clerk checks each voter’s photo ID, has them sign a roster and hands over a sanitized voting machine. Voting typically takes place in large individual tents, and poll watchers can observe the processing of voters no differently than in traditional voting locations, Hollins has argued.

See here for the previous entry. As I said yesterday, I just don’t believe the Supreme Court will do this. It’s such a drastic step to take, it’s punitive towards a lot of voters who had every reason to believe they were doing something legal, it would be an enormous partisan stain on the court and the justices, four of whom are on the ballot themselves, and as I said if the court felt such an outcome was in play, they could have clearly signaled it earlier to minimize the effect on the voters. Maybe I’m naive, or willfully blind. This just seems like a bridge way too far. I guess we’ll find out.

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13 Responses to One last, desperate attempt to kill drive-though voting

  1. Marc says:

    Toth doesn’t even have standing for this. He isn’t affected at all by what happens in Harris County.

    That said, there was a Republican precinct chair that was an early voting election clerk in Toth’s district (at the Michell library) who was actively encouraging what is essentially drive-through voting utilizing the curbside voting system. And Toth was aware of it.

  2. brad says:


    Do not underestimate the undemocratic DNA of the Republican party and the current GOP TX Supreme Court.

  3. voter_worker says:

    It’s pure ignorance to assume that the “other” side availed themselves of this convenience more than “your” side did. “Ignorance now, ignorance forever!” is becoming the default motto of the GOP.

  4. Kibitzer Curiae says:


    In Abbott v. Anti-Defamation League of Austin, No. 20-0846 (Tex. Oct. 27, 2020) the Texas Supremes “plagiarized” the collective work product of three Trump appointees on the Fifth Circuit Court of Appeals: Duncan, Willett, and Ho; cited as Tex. League of United Latin Ams. Citizens v. Hughs, ___ F.3d ___, ___, No. 20-50867, 2020 WL 6023310 (5th Cir. Oct. 12, 2020), and as “LULAC” numerous times thereafter.

    They recycled the material with attribution, alright, but without acknowledging that the source was a motion panel opinion order on an emergency stay motion pending resolution of the interlocutory appeal on the merits. Nor would federal precedents on federal questions of law be binding on state courts on issues of state law.

    But why would that be a problem when there is a shared understanding of how the legal fight over election rules must be resolved, and which side must win? On such occasions, a prior federal decision of kindred jurists is highly persuasive, not to mention when a former colleague sat on the panel, and two are vetted SCOTUS aspirants.


    For the current case before the Texas Supremes – now involving drive-thru voting rather than delivery of marked mail ballots — virgin territory need not be entered either. There is already a playbook case ready be borrowed from: Steve Simone, Secretary of State of Minnesota v. Robert LaRose No. 20-3139 (8th Cir. Oct. 29, 2020)(per curiam).

    In that case, a federal district court denied a challenge by Republican plaintiffs to a deadline extension for the receipt of mail ballots on standing ground, but the Eight Circuit reversed and substituted its own ruling on the merits of the claims that the lower court had not even reached.

    In a 2 to 1 decision, the federal appeals panel “solved” the standing problem by holding that the plaintiffs (prospective Electors, equated with candidates for office) have an interest in an accurate count of legally valid votes (without having to show that their chance of winning would be affected by uncountable ballots), and dispensed with the long-standing tradition that trial courts exist to hear cases in the first instance. Under the current contingencies, they opined, evidence wasn’t needed, and a remand to the trial court unwarranted. Voila! Another precedent for fact-freed jurisprudence.

    And in Texas, of course, supplicants for judicial election relief can skip the trial court altogether and head straight to the supreme court by invoking the mandamus provision in the Election Code. So, an excuse to by-pass the trial court level does not even have to be extemporized for the occasion. But there is more here than just a new standing theory and an adjudication un-tethered from the vagaries of factfinding and evidence.


    The Eight Circuit panel also pioneered a new take on the Purcell principle which cautions against judicial interference with ongoing elections: Disrupt now, with reference to an even more dire aftermath scenario in the absence of up-front disruption. The disruption here took the form of shortening of the receipt deadline for mail-in ballots, contrary to the instruction voters were given when they were sent their absentee ballots.

    It was the lesser evil, the judges reasoned, because affected voters could still refrain from mailing their ballots and deliver their ballots in person on election day. But they also kept the option open for a judicial invalidation of those ballots that do arrive late. And some portion will. To assure that federal courts would retain the ability to sort it all out after election day, the appellate judges took it upon themselves to issue their own mandatory injunction against the Secretary of State: segregate the late-arriving ballots so that they can be dealt with later. Dealt with by the court, of course, under principles of strict construction and with due respect for the separation of powers.


    “We therefore reverse the district court’s denial of the Electors’ motion for a preliminary injunction and remand to the district court with instructions to
    immediately enter the following order granting a preliminary injunction: The Secretary and his respective agents and all persons acting in concert with each or any of them are ordered to identify, segregate, and otherwise maintain and preserve all absentee ballots received after the deadlines set forth in Minn. Stat. § 203B.08, subd. 3, in a manner that would allow for their respective votes for presidential electors pursuant to Minn. Stat. § 208.04, subd. 1 (in effect for the President and Vice President of the United States) to be removed from vote totals in the event a final order is entered by a court of competent jurisdiction determining such votes to be invalid or unlawfully counted. The Secretary shall issue guidance to relevant local election officials to comply with the above instruction.

    Professor Richard Hasen calls the decision outrageous. See here:

    But outrageous decisions may be the way for Trump to achieve victory by other means. Not by securing the most votes to win the electoral votes of the requisite number/combination of states to aggregate 270 in his favor, but by relying on pliant courts to selectively eliminate subsets of votes from the total tally on the ground that the manner they were cast was “illegal”.

    This is the other face of voter suppression. Suppression of votes already cast. Selective suppression. Preferably after the fact, to allow for the allocation of litigation resources to be optimized by targeting localities were the subset of affected votes could be outcome-determinative, i.e., make the difference between winning and losing.


    While the factual circumstances for cast-vote invalidation are different, the Harris County drive-thru votes would be an attractive target because Harris County is populous and known to lean Democratic overall, and because there is no reason to think that those who have used, and now use, the drive-thru option would lean any less so.

    Eliminating a large volume of Harris County votes by declaring them “illegal” under the interpretation of the Election Code pushed by Hotze and Woodfill would reduce Harris County’s contribution to the total statewide tally — and thus the weight of the largest metropolitan county. This would thus favor Republicans in the “adjusted” statewide pool of cast votes by increasing the weight of the nonmetropolitan counties.

    The same calculus applies to all statewide races for state offices, including the four SCOTX races. The four incumbents whose names are on the ballot (Hecht, Boyd, Busby, and Bland) would themselves benefit from a supreme court ruling favoring Hotze/Woodfill and their co-petitioners. None of the four SCOTX incumbents has any chance of winning a majority of votes in Harris County in 2020. All of them have an inherent interest in Harris County votes not being cast in the first instance – or being junked, if already cast — because it is forseeable that the votes cast will heavily favor their opponents in the aggregate.

    Busby and Bland are well aware of their poor prospects, though it all went well for them in the end — or rather, the interim — given that Abbott brought them back to serve on an even more desirable bench. But now they face the verdict of the voters again. And they lost their re-election bids for their respective appellate benches on the Houston Courts of Appeals in 2018. There is no reason they would do any better now. Likely they will do worse.

  5. Do they even realize that if they throw out all the Drive-Thru votes, they will be throwing out Republican votes too?!?! Why do we allow such stupidity? And what will these judges look like punishing their own voters?!

  6. Amelia says:

    What is the deadline for this decision? The response from Harris a county was due by 4pm on Friday 10/30.

  7. Amelia – Strictly speaking, there are natural deadlines in the date that the vote is canvassed and certified in Harris County, and in the date when SOS certifies the vote and the Presidential electors are named. But the Supreme Court moves on its own schedule, and how they rule may have an effect on when they rule – e.g., if they issue some highly technical ruling that otherwise has no effect on the vote count, they may take their sweet time with it. Or alternately, if they want to give the poor suckers whose votes they throw out a second chance, they may issue it by Monday.

    TL – I’m sure someone has thought of that. One of the plaintiffs is a Republican candidate for District Court judge, after all. I expect they believe that on balance, this would benefit the Republicans, since Harris is a Democratic county, and by all measures Dems have been the majority of early voters. I seriously doubt the plaintiffs care about who gets disenfranchised, they care about whether they get a net gain out of it.

  8. BillK says:

    Kuff, can those who voted drive through vote a provisional ballot on Tuesday in case their drive through ballot is thrown out?

  9. Kibitzer Curiae says:



    If a majority of the Texas Supremes decides to rule for Hotze and to give Harris County drive-thru voters another chance — thereby creating chaos on Tuesday by sending all “rejects” back to vote a second time in person and on foot inside traditional polling places — they will likely hand down a ruling on Monday morning.

    Otherwise, it might be a scenario of possibly declaring the cast ballots — the whole bunch of them — invalid if/as needed (which is to say, if Trump looses in Texas) post-Election Day, preceded by court-ordered seizure and/or embargo of the electronic storage devices.

    Even if the SCOTX were to deny or dismiss, Justice Devine can surely be counted upon to issue a dissent. There are a few interesting issues to chew on, no doubt.


    Also, it would appear that each of the 130,000 or-so Harris County motor-vehicle-bound voters — whose whose already-cast ballots are under threat of being judicially invalidated — have more legal standing to complain than Dr. Hotze, who will presumably vote in person.

    One member of these multitudes, who is also an attorney, has already filed an amicus brief in Tex. No. 20-0863. Two nonlawyer-voters have submitted amicus letters and two more are appended to Hollins’ response.

    See docket with all filings here:

    Amicus curiae letters from the public can be mailed to the Clerk of the Supreme Court of Texas, the Hon. Blake Hawthorne, but given the press of time, they should be e-filed. The public can sign up for an account without charge. A link is provided on the Texas appellate courts’ websites. Click “eFile Texas” in the top ribbon, then select “State provided EFSP” from the drop-down menu under the YES button on the homepage to register. To file into the case, find it by specifying the Supreme Court and the Case Number.

    Using the Texas e-filing also makes it easy to serve the parties’ attorneys on the case at the same time, which friends of the court are required to do pursuant to rule 11 of the Texas Rules of Appellate Procedure (TRAP 11). Out-of-state attorneys (without Texas Bar license) must either file pro se submissions or obtain pro hac vice admission (when representing an organization or other nonparties as friends of the court), which requires sponsorship by a Texas-licensed attorney and payment of a fee.

  10. Kibitzer Curiae says:


    A parallel federal action is also pending, which brings into play what might be called the state-goes-first doctrine (Pullman abstention), but with a twist: This time, there are federal constitutional claims also present in the state-side action, but the state case was filed in the state supreme court in the first instance. So, it is already in the court of last resort, and a disposition is impending.


    Steven Hotze, M.D., Wendell Champion, Steve Toth, and Sharon Hemphill v. Chris Hollins, in his official capacity as Harris County Clerk. Civil Action Case No. 4:20-cv-03709 in the Southern District of Texas, Houston Division; Complaint for Emergency Injunctive Relief filed Oct. 28, 2020. Motion to Intervene by MJ FOR TEXAS [MJ Hager for US Senate Campaign], DSCC, DCCC, Mary Currie, Carlton Currie Jr, Jekaya Simmons, and Daniel Coleman, filed Oct. 30, 2020.

    See with declarations from affected drive-thru voters attached.

    In their emergency complaint (by the same assortment of GOP plaintiffs) Woodfill makes the same legal arguments as in the mandamus action in the SCOTX minus those that are specific to the direct mandamus procedure under the Texas Election Code, which applies only in state appellate courts.

  11. BillK – I thin if we’re going to get a ruling that would invalidate these votes, it will be on Monday. If that happens, then you can vote again on Tuesday. I would not advise trying to vote again provisionally otherwise.

  12. Pingback: SCOTX rejects Hotze petition to throw out drive through votes – Off the Kuff

  13. Pingback: Federal judge denies Hotze petition – Off the Kuff

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