Hotze and crew appeal to SCOTX to stop the extra week of early voting

Here we go again.

Republican Gov. Greg Abbott is facing a lawsuit over his extension of early voting for the November election from prominent members of his own party — including state party Chairman Allen West, Agriculture Commissioner Sid Miller and members of the Texas Legislature.

In July, Abbott added six days to the early voting period, moving the start date up to Oct. 13 from Oct. 19, citing the coronavirus pandemic. In the lawsuit, filed Wednesday with the state Supreme Court, Abbott’s intra-party critics say the move defied election law that requires early voting to start on the 17th day before the election.

It is the latest legal challenge to Abbott’s emergency powers, which he has wielded aggressively in dealing with the pandemic.

“Governor Abbott seems to have forgotten that the Texas Constitution is not a document that he consults at his convenience,” Jared Woodfill, a lawyer for the plaintiffs, said in a statement. “It is an uninterrupted charter of governmental structure that limits the Governor Abbott’s ability to act as a king.”

The plaintiffs argue Abbott needs to consult the Legislature before making such decisions and that “if ever a special session was justified, now is the time.”

One of the plaintiffs is Steve Hotze, the Houston conservative activist who has launched several lawsuits against Abbott’s coronavirus response that has seen minimal success so far. But in the latest lawsuit, he is joined by not only West and Miller, but also three state senators and four state representatives, as well as the chairman of the Harris County party, Keith Nielsen, and the Republican National Committeeman from Texas, Robin Armstrong.

West, who took over the state party this summer, has openly expressed disagreement with aspects of Abbott’s coronavirus handling, including his statewide mask mandate and the early voting extension. West seemed to telegraph the lawsuit Tuesday, saying in a statement that he would be partnering with Hotze to make election integrity a “top priority.” West said in the same statement that he opposes the “extension of early voting through the decree of a single executive instead of through the legislative process.”


In addition to making the early voting period longer for the November election, Abbott gave voters more time to turn in their mail-in ballots in person if they choose to do so. Usually those voters are permitted to submit their ballots to the early voting clerk’s office in person instead of mailing them in — but only while polls are open on Election Day. Abbott’s expanded that option to the entire early voting period.

The lawsuit filed Wednesday additionally seeks to stop the extended period for submitting mail ballots in person, also calling the move inconsistent with the election code.

Before we go on, I should note that what was filed was not a lawsuit but a writ of mandamus. Hotze and a smaller crew of jackals had already filed a lawsuit in Travis County district court about a month ago. I presume this writ was filed because they weren’t going to get a ruling in time, and everything is an emergency as far as Hotze is concerned.

The Chron adds some detail.

In the 40-page petition filed Wednesday, the Republicans wrote that the extension was unlawful because the Texas Election Code defines the early voting periods as “the 17th day before election day … through the fourth day before election day,” and the time for in-person submission of mail-in ballots as “only while the polls are open on election day.” The petition seeks to force Secretary of State Ruth Hughs to stick to the timelines in the law.

Hotze has filed a number of lawsuits aimed at Abbott’s COVID-19 emergency orders; in the early voting suit, he again alleges that Abbott does not have the authority, even during a disaster, to suspend laws through executive order. Instead, he says, Abbott should have convened the Legislature.

“If ever a special session was justified, now is the time,” the petition states. “Abbott’s Executive Orders are unprecedented and have had life and death implications, destroyed small businesses and family’s livelihoods, have had a crippling effect on every single community, and now have the ability to impact local, state and national elections. As long as this Court allows it to occur, one person will continue to unilaterally make these decisions under the guise of an unconstitutional statute.”

The lawmakers involved in the suit are state Sens. Charles Perry, Donna Campbell and Pat Fallon and state Reps. Bill Zedler, Cecil Bell, Jr., Steve Toth and Dan Flynn. Additional relators include former state Reps. Matt Rinaldi, Rick Green and Molly White; Harris County Republican Party Chair Keith Nielson; and several other candidates and Republican group leaders.

This story notes the earlier lawsuit. Of interest is the larger group of legislators that have joined in, which distinguishes this action from earlier Hotze/Woodfill joints. Perhaps the election of Allen West, who is as bananas as Hotze, has lent an imprimatur of establishment approval to this kind of rogue action. That said, this is the Hotze clown car we’re talking about, so of course there’s some unintentional comedy involved:

Never stop never stopping, Stevie.

Anyway. You know my opinion on all this – there are some legitimate questions buried under the mountains of palaver, but they are being asked by the worst possible people. I think there’s a strong case to be made that the very nature of our biennial legislature, which is not paid as an occupation but as a temp gig, makes this claim about calling special sessions impossible. It’s just not something that the system is designed to accommodate. My guess is that SCOTX will give this the same reception as they’ve given all of Hotze’s other writs and motions during the COVID times, but you just never know. And I can’t wait to see how Ken Paxton responds to this.

On a side note, this comes as Steve Toth, yet another froth-at-the-mouth type, officially announced that he is unfriending Abbott, which by itself isn’t that interesting but lends some fuel to the speculation that Abbott is going to get a challenger from the far wingnut right in 2022. All I can say to that is that we damn well better have a good candidate ready and waiting for whoever survives that mud fight.

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9 Responses to Hotze and crew appeal to SCOTX to stop the extra week of early voting

  1. Kibitzer Curiae says:


    The Texas Supreme Court has STRUCK Hotze’s petition, but ostensibly for defects in the form of the PDF document: 1. Not redacted [i.e., sensitive information like individuals’ home addresses] 2. Appendix items not fully OCR’d [converted to text-searchable PDF] 3. Documents scanned [should be electronic copies or direct conversions from text document to PDF rather than paper documents run through a scanner].

    Docket here:


    PDF document quality and searchability is a laudible objective.

    However, it’s a bad policy to strike documents and deny the public an opportunity to PROMPTLY see the document, and this is especially troublesome when a case is of great public interest.

    A better approach would be to designate documents as STRUCK (legally ineffective), but keep them on the docket — perhaps with a watermark indicating DOCUMENT STRUCK — at least until the superseding document (with errors fixed and/or offending content removed) is received and FILED.

    Hopefully, the new Chief Justice, come January 2021, will be more interested in transparency and serving the public interest broadly conceived, and will review and reassess current administrative policies and operating procedures accordingly.

  2. Bill Daniels says:

    Are we gonna talk about the multiple felony indictments in Gregg County for vote by mail/ballot harvesting crimes?

  3. Burt Levine says:

    RPT Chair/Col Allen West will Primary Abbott

  4. Marc says:

    Actually, the rumors up here in tea party land (MoCo) are that either Toth or County Judge Mark Keough (if he can stop running his car into other vehicles) will primary Abbott.

  5. Jen says:

    As part of his strategy to neutralize any possible primary opponent Greg Abbott took the cowardly path of hewing to far right-wing political positions, ending common sense mask mandates that would have saved thousands of Texas citizens from dying. Too bad we can’t be talking about grand jury indictments and felony charges for the mass death of citizens he has caused.

  6. brad says:


    I am surprised the indicted Republican Attorney General didn’t announce the indictment. Wonder why?

    We are still waiting for you and Gov Abbott to provide any, let me repeat “any”, factual evidence of the “rampant” in person voter fraud that has been taking place in Texas for years.

    And if there was “rampant” voter fraud I guess we would be having a discussion about the ineptitude of the Republican elections officials not catching this “rampant” voter fraud.

    So are statewide GOP officials liars or they dumb as bricks and underserving of office?

  7. Kibitzer Curiae says:

    Woodfill’s mandamus petition on behalf of Hotze et al against the Secretary of State was made available to the attentive plebs last night.

    Substantively, this filing has numerous weaknesses. It will be interesting to see what the Supremes will do with this. The creative juices must already be flowing in the nowadays-virtual chambers.


    For starters, this is an injunction suit in disguise.

    The purpose of an injunction is to get a court to stop an adversary from doing something they are currently doing, or are about to do, based on some theory of wrongdoing and harm caused by it. Here, they are trying to obtain a stop to (1) the early commencement of early in-person voting, and (2) the acceptance by early voting clerks of marked absentee ballots before election day.

    Before we even get to the issue of purported wrongs committed, and the harms inflicted or alternatively impending, there is the question of whether the SCOTX is even the proper forum for this genus of complaint.


    Hotze et al rely on Election Code section 273.061, which gives the court of appeals and the supreme court original jurisdiction 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.” Original jurisdiction means jurisdiction to hear and decide a dispute as the first court to tackle the matter, which is normally the trial court.

    Section 273.061 is the same statutory basis on which the COVID-containment-averse faction of the GOP failed to get relief from SCOTX concerning their in-person convention at George R. Brown Convention Center in Houston.

    Only Justice Devine dissented then.

    So here the allegation is that the Secretary of State is violating the Election Code by following Abbott’s order that provides for the suspension of two provisions in the Election Code through the Governor’s exercise of emergency powers under the Texas Disaster Act in light of the pandemic-related threats to public health.

    The SOS is merely carrying out Abbott’s order, however, and thereby actually performing a duty imposed by law, rather than failing to do so or violating such a duty; so the relators have to argue that Abbott’s order itself is unlawful. The apparent reason they didn’t sue the Governor directly is that the Governor is exempt from being subjected to a mandamus from the high court.

    The constitutional attack, of course, takes us to the core complaint that has motivated Hotze’s serial pandemic lawsuits: That the Governor is acting like a dictator and that the Texas Disaster Act is itself unconstitutional because it allegedly violates the principle of separations of powers. Hotze offers no suggestion as to who should handle a crisis situation when the Legislature is not in session and cannot therefore take any legislative action to respond to it. He complains that the Governor hasn’t called the Lege into special session, but that is merely a political gripe, not a legal claim. The Governor cannot be said to have legal (ministerial) duty when he has the power and discretion to decide whether or not to call a special session.

    That, of course, doesn’t mean that the supreme court action cannot serve a useful political purpose. At the minimum, it’s fodder for the press and the twitter sphere.


    The other major problem here is that of legal standing. Section 273.061 complaints are typically brought by candidates over ballot access issues either involving themselves or against an opponent. Candidates obviously have a stake in the matter of whether they are entitled to have their name appear on the ballot, or whether an opponent running for the same office is disqualified/ineligible. Woodfill actually attached a compilation of Section 273.061 caselaw to this petition. He should have reviewed it because none of the cases supports the proposition that just anyone can invoke Section 273.061 willy-nilly to propel the supreme court into action, not to mention for the purpose of obtaining what is functionally a prohibitory injunction, rather than an order to compel the target of the mandamus bid to perform a duty imposed by law by affirmative conduct.

    Hotze and his co-petitioners (“relators” in appellate law jargon) utterly fail to show how they are harmed by OTHER voters of either partisan persuasion being allowed to cast their ballots earlier than would be the case under non-pandemic conditions, or submitting their “mail-in” ballots in person. It doesn’t diminish their right to vote, nor does it harm them. Indeed, if the relators vote in person, the modifications in election-administration procedures should benefit them because the purpose of these measures is to reduce congestion at the polling places on election day. As such, these modest COVID-related adjustments to voting procedures prescribed by the Election Code — which Hotze and his companion relators would have us believe are dictatorial in character — will reduce the chances of long lines even if the relators don’t believe that COVID poses serious risk at the polling locations.

    Under the general principle of standing, you can’t get judicial relief if you can’t show how you personally are (or stand to be) injured by the action(s) or omission(s) of another person of which you complain. But who says the court of last resort cannot divine an exception for litigants deemed worthy of special sympathy and commensurate favors?


    As it stands, Hotze et al have at least one or two friends on the Court whose prior divergent opinions in predecessor litigation they quote profusely. Will flattery work its charms? – Well, it only takes one vote to get a case to the next stage (“response requested”), and that has already happened here.

    — cutnpaste begin —

    RE: Case Number: 20-0739
    Court of Appeals Number: [null]
    Trial Court Number: [null]
    Style: IN RE HOTZE

    Dear Counsel:

    The Supreme Court of Texas requests that real party in interest file a response to the petition for writ of mandamus in the above-referenced case. The response is due to be filed on September 28, 2020 at 4:00 p.m. PLEASE NOTE pursuant to TEX. R. APP. P. 9.2(c)(2) all documents (except documents submitted under seal) must be e-filed through


    Blake A. Hawthorne, Clerk
    by Monica Zamarripa, Deputy Clerk

    –cutnpaste end —

    And it’s already clear that the Supremes do not treat Hotze just like any other litigant. They sprang into action to grant instanter relief in Hotze’s mandamus against Hollins (in No. 20-0671) even though Hotze’s claim of standing in that case is predicated upon him being a Harris County taxpayer and voter (which does not generally suffice for standing) and even though Hotze isn’t a party to the rule 11 agreement between Hollins and the State in the Attorney General’s Harris County ultra-vires suit. Note that Hotze’s statutory basis for the mandamus bid against Chris Hollins in Tex. Case No. 20-0671 is also Section 273.061 of the Election Code.

    — cutnpaste begin —

    09/02/2020 Stay Order issued The Emergency Motion for Temporary Relief is GRANTED in part. In conformance with the Rule 11 agreement in State of Texas v. Hollins (No. 2020-52383, 61st Judicial District Court, Harris County), Real Party in Interest Hollins is ordered to refrain from sending applications to vote by mail to registered voters under the age of 65 who have not requested them until five days after a temporary injunction ruling in State of Texas v. Hollins. The Real Party in Interest should inform the Court of any developments in State of Texas v. Hollins that may affect this order.

    — cutnpaste end —


    Expect the Texas Supreme Court to extemporize new precedent to suit the occasion. It’s already happened in the form of the rule 11 enforcement based on supreme court mandamus jurisdiction under Section 273.061 of the Election Code on the “special pleadings” of Hotze and the GOP. Albeit without an opinion purporting to justify assertion of instanter writ power under such circumstances.

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