SCOTX rejects Hotze petition to throw out drive through votes

One piece of good news.

A legal cloud hanging over nearly 127,000 votes already cast in Harris County was at least temporarily lifted Sunday when the Texas Supreme Court rejected a request by several conservative Republican activists and candidates to preemptively throw out early balloting from drive-thru polling sites in the state’s most populous, and largely Democratic, county.

The all-Republican court denied the request without an order or opinion, as justices did last month in a similar lawsuit brought by some of the same plaintiffs.

The Republican plaintiffs, however, are pursuing a similar lawsuit in federal court, hoping to get the votes thrown out by arguing that drive-thru voting violates the U.S. constitution. A hearing in that case is set for Monday morning in a Houston-based federal district court, one day before Election Day. A rejection of the votes would constitute a monumental disenfranchisement of voters — drive-thru ballots account for about 10% of all in-person ballots cast during early voting in Harris County.


Curbside voting, long available 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 Harris County Clerk’s Office argued that its drive-thru locations are separate polling places, distinct from attached curbside spots, and therefore can be available to all voters. The clerk’s filing with the Supreme Court in the earlier lawsuit 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.

Plus, the county argued in a Friday filing that Texas’s election code, along with court rulings, have determined that even if the drive-thru locations are violations, votes cast there are still valid.

“More than a century of Texas case law requires that votes be counted even if election official[s] violate directory election laws,” the filing said.

See here and here for the background. I’m glad to see SCOTX affirm my faith in them. They’re partisan, but I didn’t think they would want to set their reputations, and the court’s legitimacy, on fire for such a blatant and sloppy effort to disenfranchise thousands of people. So we’ve got that going for us, which is nice.

There’s still the matter of that federal lawsuit, for which there will be a hearing this morning at 10:30. I have no idea when there might be a ruling – it’s not out of the question that the judge could rule immediately upon the completion of the hearing – but it’s still looming out there. If you were one of the 126K+ drive-through voters, you can add yourself to the lawsuit as an intervenor, and put your experience on the record. Just fill out this form – quickly, the hearing is at 10:30 as noted – and you’ll have done your part. Here’s hoping. The Statesman has more.

UPDATE: From Twitter:

The attached brief is custom-made to convince a partisan Republican judge to throw out the plaintiffs’ petition. Let’s hope this helps.

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9 Responses to SCOTX rejects Hotze petition to throw out drive through votes

  1. As one of the 127K who took advantage of drive-thru voting because, as a teacher, I need to limit my interactions outside of school, I hope that Chris Hollins and the county prevail in this ridiculous lawsuit brought by Hotze among others.

  2. Mainstream says:

    This Republican is furious that Hotze and Woodfill and Hemphill and others continue to file nutty lawsuits putting the Republican Party in a bad light and harming its candidates by the backlash. County Commissioners approved the drive through locations in August. Even if doing so violated the law, waiting until after 127,000 have voted to try to invalidate ballots is insanity.

  3. Sunday, November 1, 2020

    Hon. Blake A. Hawthorne
    Clerk of the Supreme Court of Texas
    PO Box 12248
    Austin, Texas 78711

    RE: Texas Supreme Court Docket No. 20-0863
    Case Style: In Re Steven Hotze, MD, Wendell Champion, Steve Toth, Sharen Hemphill


    Dear Mr. Hawthorne:

    As an ordinary mortal, albeit degreed, I am disappointed with the summary denial on Sunday. The Court’s decision to punt off to a federal court the state-law question of drive-thru vs. curbside voting strikes me as spineless. Nor is the public told who is responsible. Has Justice Devine, who previously dissented, undergone a conversion? What about Justice Blacklock? Does he no longer discern a lack of jurisdiction? What about the newly sworn-in member of the court? Did she participate? And why do some members of the Court recuse themselves in some election disputes brought to this court, but not in others? And not necessarily those who are on the 2020 ballot?

    We are left to engage in the Lone Star equivalent of Kremlinology. This time, there is not even a reference to 20-0739, In re Steven Hotze, M.D., et al. as a clue to the court’s decision rationale.

    This mandamus denial resolves nothing. It is a prescription for further delay and uncertainly. Nor does it provide meaningful guidance for the federal district court.

    Whichever way U.S. District Judge Hanen rules on the same Petitioners’ Application for Preliminary Injunction Monday morning (if at all), that ruling will be subject to appellate review by a motion panel on the Fifth, a merits panel on the Fifth, an emergency petition in the SCOTUS, an en banc review by the full Fifth, followed by a cert petition, not to mention the possibility of the Fifth bouncing the state-law statutory construction issue back to this court by way of certified question. And not necessarily in a predictable sequence, what with the recent practice of emergency filings and resultant SCOTX interventions with separate statements, concurs, or dissents issued by subsets of the high court’s membership. Alternatively, there might be Erie-guessing, perhaps with the benefit of special predictive input of former members of this court who have since gone federal.

    Meanwhile, the affected Harris County voters are on tenterhooks.

    Even though the relevant state-law question could be answered authoritatively right now, based on deep research and memo-writing that fresh and formidable law clerk talent has no doubt already conducted on an expedited basis over the weekend, the Harris County drive-thru voters are left with nothing.

    No assurance whatever that their vote will be counted.

    It is respectfully submitted that the 130,000 or-so Harris County voters who cast their votes in good faith in the challenged drive-through facilities are entitled to a decision on the legal status of their votes right now, not after Election Day.

    As it stands, this Court’s comment-less and un-reasoned writ denial leaves them in purgatory. And they are not even sinners. They are blameless and blemish-free, and so are their votes. These ballots must not be discarded. These voices must not be silenced.

    Democracy must not be flushed down the drain at the behest of the current occupant of the White House who can’t handle to prospect of a resounding rejection.

    Unlike Dr. Hotze, who is apparently bent on voting on foot, in person, unmasked and without finger condom, the 130,000 Harris County voters who have already cast their ballots in a manner respectful of the health and wellbeing of their fellow human beings in Harris County all have standing. They have standing because their fundamental right to vote, and their right to have a say on who they will governed by, is on the line.

    So is the legitimacy of this court, and the political establishment it represents.

    These 130,000 voters are entitled to a decision one way or the other before Tuesday.

    At the minimum, they are entitled to be informed that their vote has indeed been junked – or is going to be junked — by judicial decree, so they can cast at least a provisional ballot as pedestrian voters in the walk-in polling places on Tuesday, if the election management software cannot be updated in time to revert or delete the data point denoting their status as “has-already-voted.”

    Respectfully submitted,

    /s/ __Wolfgang P. Hirczy de Miño __
    Wolfgang P. Hirczy de Mino, PhD
    Harris County, Texas


    The author is a political scientist who received his PhD from the University of Houston in 1992, having presented and defended his dissertation on ELECTORAL PARTICIPATION. No payment was received for the preparation of this amicus curiae letter and none is expected. The parties’ lead attorneys were served with the Sunday, November 1, 2020 version of this letter through the Texas e-file system. Tex. R. App. P. 11.

  4. Jules says:

    Yes, it’s just those clowns who are putting the cult of trump in a bad light. (Sarcasm)

    That’s what the cult does, suppresses votes. They are just following the playbook.

    If you don’t like it, vote Democrat.

  5. BillK says:

    Kuff, if no decision comes in today or tomorrow, of if the Fed Case gets appealed, can those who voted drive through, vote on Tuesday on a provisional ballot in case the drive through vote doesn’t count?

  6. Mainstream says:

    Plaintiffs lack standing, per Judge Andy Hanen

  7. BillK – As we now know, the federal judge denied the petition on grounds of standing, and said that even if the plaintiffs did have standing, he would have kept the votes that had been cast. I say that to say that at this point, there probably isn’t anything to worry about, but also that the question you ask was never really answered, because no one knew the answer. It’s all hypothetical. Fortunately, as things look now it can and will stay that way.

  8. Flypusher says:

    I am very happy for all those voters who did not get screwed over on this.

  9. Wolfgang says:


    Here is the link to Judge Hanen’s order following today’s hearing, which dismisses the action for lack of standing, but nevertheless opines (in dicta) on the merits of the state-law statutory construction issue, with distinction made between early voting (okay) and drive-thru voting on Election Day (not okay) (“[I]f the Plaintiffs had standing, the Court would have found that the continuation of drive-thru voting on Election Day violates the Texas Election Code.”) The distinction rests on the difference in the statutory language in the sections of the Texas Election Code governing early voting and election-day voting, respectively. In the absence of trial court jurisdiction, these observations may be instructive, but not binding.

    In terms of substance, Judge Hanen’s tentative rulings might at best be characterized as a mixed bag. He would have granted prospective injunctive relief, had there been jurisdiction.

    Neither the Texas Supreme Court, nor Judge Hanen, has definitively resolved the state-law statutory construction question, i.e. whether the drive-thru tents qualify as proper polling locations under the Election Code. The already-cast votes, however, appear to be reasonably safe for a variety of reasons, including the absence of any fault on the part of the voters, and their reliance on what they were told by government officials was a proper way to cast their ballots. Equitable (fairness) considerations are part of the judicial inquiry in the preliminary injunction context, as opposed to determinations strictly made as a matter of law, such as in a summary judgment context involving statutory construction when the facts are not disputed. But, in the absence of jurisdiction, those parts of the order are also in “I would have” mode.

    The order clearly reflects the judge’s expectation of an appeal or another mandamus, and possible future action of the plaintiffs who are candidates, if they acquire standing. The dismissal for lack of standing (due to lack of a particularized injury) is not with prejudice as to them.

    U.S. District Court for the Southern District of Texas – Houston Division:
    Steven Hotze et al v. Chris Hollins, NO. 4:20-cv-03709 (S.D. Tex. Nov. 2, 2020)(Order on Plaintiff’s application for preliminary injunction dismissing their claims for want of standing). Document 63 on Docket (9 pages)

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