Hotze and Woodfill take their fight against drive-thru voting to federal court

Just another quiet Saturday…

Mark can be a bit of an alarmist, but that doesn’t mean he’s wrong. For what it’s worth, Rick Hasen thinks this suit is without merit, though again worth worrying about given the deranged nature of parts of the federal judiciary these days.

Mark Stern flagged this new lawsuit filed in federal court which seeks to throw out over 100,000 ballots cast by Harris County, Texas voters who voted using drive-thru voting in Texas. There was an earlier lawsuit in state court seeking to block this means of voting on grounds that it purportedly violated Texas law, but the Texas Supreme Court rejected that claim. This new lawsuit is making the same novel claims under the “independent state legislature” doctrine that any actions by any state court or state agency not specifically authorized by the legislature is an unconstitutional usurpation of the legislature’s power. It’s this same audacious and unproven theory that formed the background for the outrageous 8th Circuit order this week over segregating ballots in Minnesota. The lawsuit has been assigned to Judge Hanen (a judge who had struck down all of Obamacare at one point before being reversed), who has already scheduled a hearing.

On the merits, this case should be a sure loser, but given how crazy things are getting in the federal courts these days, I cannot be 100 percent confident in my predictions. Here are some of the reasons this suit should be thrown out decisively

You can click over and read Hasen’s reasons, and you can read these threads by law professor Michael Morley and Buzzfeed News reporter Molly Hensley-Clancy for more reasons. You should also remember that at the end of the day, Jared Woodfill is a complete moron, and anything that relies on his legal acumen is likely to fall well short of the mark. Again, that doesn’t mean that a pliant federal judge won’t give him what he wants. It just means that would be the only reason why he’d succeed. Democracy Docket has intervened, and Josh Marshall, whose post alerted me to Mark Joseph Stern’s tweets, has more.

In the meantime, the State Supreme Court will also be dealing with this tomorrow.

The Texas Supreme Court drew alarmed attention Friday after directing Harris County to respond to a petition that seeks to invalidate more than 117,000 votes cast in drive-thru lanes.

The court’s interest came as an unwelcome surprise to voting advocates and Harris County officials who were banking on a quick dismissal of the petition, filed by two GOP candidates and a Republican member of the Texas House.


The petition — filed by state Rep. Steve Toth, R-The Woodlands, GOP activist Steven Hotze and two Republican candidates in Harris County — argued that drive-thru voting is an illegal expansion of curbside voting, which state law reserves for voters who have an illness or disability that could put them at risk if forced to enter a polling place.

The court responded by giving Harris County until 4 p.m. Friday to file a legal brief responding to the petition, raising fears that the Supreme Court was giving consideration to tossing out tens of thousands of ballots.

However, it takes only one justice on the nine-member court to request a response to a petition, and there is no way of knowing how many justices were interested in Harris County’s response because the court does not disclose that information.

In addition, before tossing out the votes, the court would have to acknowledge that 117,000 Harris County voters had visited a drive-thru polling site by Thursday night, including more than 42,000 drive-thru votes that were cast since justices first had a chance to stop the practice a week earlier but did not.

In a memo prepared for Harris County on the issue, noted Austin lawyer C. Robert Heath said the bid to void drive-thru votes faces the daunting challenge of overcoming a key legal supposition — that state laws are to be interpreted in favor of preserving the right to vote.

“If a court or other authority were to decide to invalidate those votes, it would require ignoring or overruling more than a century of Texas law,” Heath concluded.

In the brief requested by the Supreme Court, Harris County lawyers argued that there is nothing illegal about drive-thru voting, nor can votes cast that way be considered illegal.

“Uncountable votes are those that resulted from clear fraudulent behavior,” they argued. “There is nothing about an eligible voter casting an in-person vote from their car that renders their vote illegal, fraudulent, or not countable.”

The brief argued that drive-thru voting is just another polling choice with a different structure. Vehicles enter the voting area, typically a large individual tent, one at a time. A clerk checks each voter’s photo ID and has them sign a roster before handing over a sanitized voting machine.

More importantly, the county said, drive-thru voting was approved by the Texas secretary of state’s office before being adopted and was used, without objection, in the July primary runoff election.

Reform Austin also covered this, with a focus on Harris County’s response, so go check that out. This is another reason why we need comprehensive legislation, at both the state and national levels, to clarify, affirm, and assert the right to vote, and to explicitly ratify different methods to expand voting access. If nothing else, that is needed to ward off future bullshit lawsuits like these.

As for this one, I maintain my belief that SCOTX is unlikely to do anything radical. You are free to freak out as you see fit over either of these.

UPDATE: Here’s the Chron story on this.

UPDATE: If you participated in drive-through voting and want to intervene in this federal lawsuit, fill out this form.

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10 Responses to Hotze and Woodfill take their fight against drive-thru voting to federal court

  1. Ken says:

    Yeah, I am freaking out. My only hope, whether this blatant attempt at disenfranchisement of lawful voters succeeds or not, is that this pushes us to implement an online voting system. Easy peasy.

  2. Will says:

    Do not trust software-only systems, particularly any that are online. There needs to be an auditable paper trail — something we don’t currently have for a million-plus votes in Harris County.

    There are too many things that can go wrong with an online system — not only from a security/tampering perspective, but also maintaining our right to a secret ballot or the most basic things like tallying bugs from “accidental” bugs in the code.

  3. Kibitzer Curiae says:

    Law prof and election law expert Michael Morley says:

    “In my view, the plaintiffs definitely have standing (though their claims are completely meritless). Candidates have a right to have their election resolved based solely on legally valid votes, & voters have a right to not have the weight of their votes diluted by invalid ones.”

    To which retorts the Kibitzer, in celebration of a free exchange of ideas:

    Under Texas law, standing is very much in doubt, but nothing is certain, and a new precedent can always be created to fit the occasion.


    As for the mandamus action now in the Texas Supreme Court, the legal standing of a relator based on the status of voter (here once more, Harris County resident Steven Hotze, MD a/k/a “Republican activist”) is not recognized under Texas law — at least not yet — because an individual voter cannot show the requisite particularized harm. The impact of the challenged government conduct, if any, is undifferentiated. In analogy with the SCOTUS, Texas injury-in-fact analysis requires that the plaintiff suffer “personal” injury. Heckman v. Williamson County, 369 S.W.3d 137, 153 (Tex. 2012). At least the Texas courts of appeals adhere to that position.

    Hotze’s own right to vote — in person or otherwise — is not endangered or meddled with; nor is he affected adversely when others vote in a more convenient manner, whether by mail, or sitting in their cars. There is no direct impact on him, not to mention an adverse effect.

    As for indirect effects, his vote and ballot choices could be “diluted or cancelled” only on the premise that both of the following conditions apply:

    (1) the drive-through vote is indeed not countable (a question of construing and applying the relevant Texas Election Code provisions) provided that the affected voter is not allowed to re-cast his/her invalidated vote in a compliant manner (such as through (provisional) in-person voting on Tuesday)


    (2) the noncountable ballot that allegedly “cancels out” Hotze’s vote is cast for other candidates.

    If the “uncountable” vote is cast for the same candidates as favored by Hotze, and is not eliminated by judicial decree as requested, Hotze will *benefit* rather than having his expressed will as an individual voter thwarted, because the other vote in question will likewise help his candidate do better. His vote doesn’t get cancelled.

    That said, the analysis differs between the micro and macro levels, not to mention that the “cancelled vote” analysis would be further complicated once you take into account that many voters do not vote a straight ticket.

    Take David Freshwater as an example. That’s the attorney from Harris County who filed a pro se amicus brief in Tex. No. 20-0863. He disclosed that he voted for a Democratic judge candidate and a Republican one, both in local races, and that he did so at the NRG drive-thru. He would have voted the traditional way had the Supreme Court ruled that drive-thru voting was an invalid way to case a ballot.

    “My name is David Freshwater. I am an attorney and Harris County resident and voter. I voted via drive thru voting, specifically waiting until after Cause No. 20-0815 was decided as I wanted to ensure my vote was counted. I was dismayed to learn that not only was the method of voting being challenged again, but that they were seeking to nullify my previous vote. Voting is very important to me, I have not missed an election that I can recall, and since I have lived in Texas I have always voted. I am filing this brief in support because my vote and the votes of those who voted like me should count.”

    If Drive-Thru Freshwater gets flushed out by the Supremes, with no opportunity to make it up as a walk-in voter on Tuesday, each of those two judicial candidates will lose one vote.

    Stated generally, any impact of votes not cast in a code-conforming manner would *not* be uniform as to individual races and candidates. But that does not negate the possibility that aggregate-level effects could change the outcome of individual races, and that’s also relevant to standing: standing of candidates.


    Since GOP candidates are part of the mandamus action in the SCOTX, and since standing of only one of several petitioners is sufficient (when they seek the same form of relief) under another legal precedent, Hotze’s lack of standing may not be a bar.

    And let’s not forget that the Texas Supreme Court has *not* rejected Hotze’s multiple previous filings on standing grounds (which is jurisdictional), but on other grounds, such as laches, and failure to first present his grievances to lower courts. Justice Blacklock wrote separately in Tex. No. 20-0739 to address the jurisdictional defects, but he was joined only by one of his colleague, and only in part.


    At the aggregate level, the alleged harm concerns the disproportionate impact upon the total vote tally for candidates, i.e., the win/loss margin (retrospectively) or the chances thereof (prospectively). That’s a much sounder argument for candidates (as opposed to any individual voter whose singular vote will rarely be pivotal to the outcome), but there is already a legislatively established procedure for that: an election contest after the fact, with the requirement that the unsuccessful candidate show that “illegal” or otherwise “legally not countable” votes (likely) made the difference to the outcome.

    Hollins’ legal team argues, in essence, that an election contest is the exclusive remedy; that the Texas Supreme Court doesn’t have jurisdiction to resolve the matter of ballot validity in the current presentation of the relators’ complaint; and that the Supreme Court does not have authority to order the requested remedy, i.e. sequestering of the ballots.

    Note however that, in terms of feasibility, it’s not too late for a court to impose such a draconian “solution” to the GOP’s electoral problems if their judicial brethren find or extemporize a legal basis for it. That’s because each drive-through voting facility is a separate voting center even though it adjoins a traditional walk-in polling place. In other words: ballots cast on e-slate machines in the drive-thru lanes will not immediately be aggregated with those cast inside the building by pedestrian voters, and could therefore be selectively kept segregated and declared null and void sooner or later.


    Hollins’ lawyers additionally argue that vote invalidation is not a proper remedy even when a local election official/election judge has violated the Election Code, and cites caselaw for this position. Friend of the Court Freshwater does too.

    That also makes intuitive sense: The voters were blameless when they cast their drive-thru votes in good faith, as attested to Freshwater, rather than with nefarious intent.

    And impersonation or repeat/serial-voting is not a problem either because these “motor-voters” still have to show their IDs, just as they would have to if they walked into a community center, church, school or other permanent building that temporary serves as a polling place, and their eligibility to vote is verified based on the electronic voter database. Indeed, the drive-thru polling places are also available for bicycle-thru and walk-thru, and do not discriminate against those without motor vehicles.

    It would be offensive and antithetical to the core tenet of democracy if the will of the electorate could be thwarted by disfranchising a huge number of voters post-facto based on some technical noncompliance with the Election Code over which the voters had no control, especially when the technical noncompliance is created by judicial fiat after the fact with retroactive effect on votes already cast.

    Freshwater – an attorney – even says he specifically waited for the Supreme Court’s ruling in the prior challenge by petition for writ of mandamus in No 20-0815 before he endeavored to use the drive-thru option. “This Court should not silence the voices of 100,000+ Texas Citizens whose votes were invalidated through no fault of their own,” he concludes.


    As for the merits of the GOP Petitioners’ state-law statutory construction argument, the all-GOP SCOTX has a track record of making things up on the go and on the fly, with or without a textual basis. They are the court of last resort in all matters civil, and no one can stop them except on a federal question of law on which the SCOTUS has the last word.

    Here, the novel Election Clause argument presents a federal question, but it depends on the resolution of issues of statutory interpretation under the Texas Election Code: whether drive-thru voting is a noncompliant form of curbside voting as provided for the Code and/or whether it is otherwise unauthorized by the state statutes codified as the Texas Election Code.

    For pertinent examples of ad hoc judicial amendment (“re-writing”) of statutes by the Texas Supreme Court in the election law realm, see the following:

    • In re State of Texas, No. 20-0394, 602 S.W.3d 549 (Tex. May 27, 2020) (creating a judicially-crafted COVID exclusion under the disability eligibility provision for absentee voting in the Texas Election Code).
    • State v. Hollins, No. 20-0729 (Tex. Oct. 7, 2020) (construing provision of Texas Election Code that requires election officials to send voters a mail-by-vote application when requested “in context” as *prohibiting* the mailing of such application forms when not requested, and implicitly recognizing a right of the attorney general to enforce the Election Code independent of the limited grant of enforcement authority granted to the AG by the Election Code).
    • Abbott v. Anti-Defamation League, No. 20-0846 (Tex. Oct. 27, 2020) (condoning Governor’s use of emergency powers under the Texas Disaster Act for purposes other than to cope with the declared disaster, such as promoting the economy and enhancing ballot by forcing all in-person delivery of mailed ballot in Harris County through a single drop-off facility in denigration of local pandemic-containment efforts).

    For a scholarly examinations of the Texas Supreme Court’s undisciplined eclecticism in statutory construction, see:

    Gromann, Kyle. Up to Interpretation—Highlighting the Texas Supreme Court’s “Ambiguous” Approach to Statutory Construction. 73 SMU Law Review, 353 (2020).

    Olds, Daniel, Ordinary Meaning, Context, and Textualism in Texas Statutory Interpretation (March 28, 2020). Forthcoming, 52 Texas Tech Law Review 485 (2019-2020), Available at SSRN:

  4. Jules says:

    Seeing a couple of places that the votes will count

  5. Jules says:

    Nevermind, just SCOTX, not the federal case.

  6. Kibitzer Curiae says:



    Orders Pronounced November 1, 2020





    motion to exceed word limit granted
    relators’ emergency motion for temporary relief denied


    (1) Only the emergency motion is denied, not the petition itself (ie, case remains pending)

    (2) No explanation of reasons, no ruling on jurisdiction. (Emergency stay denials aren’t ordinarily accompanied by opinions, but this is not an ordinary case; nor are SCOTX orders ordinarily issued to brighten appellate attorneys’ Sunday).

    (3) No notation that any of the four incumbents that are on the ballot recused themselves. That’s Hecht, Boyd, Busy, and Bland. Body had previously stayed out of the fray. See IN RE REPUBLICAN PARTY OF TEXAS, No. 20-0525 (Tex. July 13, 2020)(GOP State Convention Mandamus).


    They are waiting for federal court to do the dirty work.

    Federal judges can’t be voted out.

    Meanwhile, the SCOTX will still retain the option to rule on the merits of the mandamus petition; — after the election is over and we have a better idea whether the 127,000+ drive-thru votes (final count to be higher) could make a difference.

    Disclaimer: Just one kibitzer’s instant take on the matter.

    What’s your reaction to this?

  7. Kibitzer Curiae says:


    Take that back: Petition Denied Too. It’s on top of the page.

  8. Jeff N. says:

    Thanks for posting the link to the sign-up for intervenors, Kuff. In our hoiuse, we voted drive through because it is the best alternative for folks like us with auto-immune disease (type 1 diabetes and hereditary angioedema). But if we need to stand in line to cast a provisional ballot on Tuesday, we’ll do that, if that option is available.

    I’ve voted in every Harris County and City of Houston election since I moved here in 1986, unless I had an unexpected work conflict on election day. I’ve voted for both R & D candidates. I have no words to describe the extent of my anger and my disappointment in these efforts to take my vote away.

    There are so many voters in Harris County who have struggled with systemic voter suppression for many years, and I’m a latecomer to their experience. Voting should be easy for everyone. This should not stand.

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

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