Courts Toss Texas Drive-Through Case Like Jar Of Salsa From New York City

Here's a nice start to Election Day for you. That Texas case where the wingnuts sued to get 127,000 already-cast ballots in Harris County tossed out faced some rough Texas justice from not one but two courts yesterday. As Jamie lawsplained at you Monday, the Hotze v. Hollins plaintiffs argued that votes cast in drive-through polling stations were somehow illegal, even though those stations use the same machines as "indoor" polling stations, it worked fine in the primary, the plan was approved months ago by a bipartisan commission, and Texas's all-Republican Supreme Court said it didn't violate state law.

Nevertheless, a rogue's gallery of loons filed this suit well after voting was underway to throw out the votes. Let's quote Jamie here:

The plaintiffs are Steven Hotze, an anti-LGBTQ bigot who runs a hate group, is a COVID and QAnon conspiracy theorist, has repeatedly tried to challenge Governor Greg Abbott's COVID-19 restrictions and told Abbott's chief of staff to murder Black Lives Matter protesters; state Rep. Steve Toth, an anti-woman extremist who just really, really loves guns; congressional candidate and cop Wendell Champion, challenging Sheila Jackson Lee; and judicial candidate Sharon Hemphill, who lost judicial elections in Harris County in 2018, 2016, and 2012.


Then they got a lucky break, pulling Judge Andrew Hanen, an ultraconservative nutbag jurist. Democrats prepared for the worst, but yesterday's hearing went basically okay. Here's a good Twitter thread on it, but — long story short — Judge Hanen was unimpressed with the plaintiffs' claims that a tent is not a "structure" adequate for voting under Texas law, and was even less impressed that they waited until 100,000 people had already cast their ballots.

There has been an increasing amount of conversation and action around the subject of implementing drive-thru voting since earlier this summer. The Defendant has argued, and no one has refuted, that discussions were held with leaders of both major political parties, and, using that input, a drive-thru voting plan was developed. The Harris County Commissioners Court approved a budget for drive-thru voting in late September. Finally, actual drive-thru voting began October 13, 2020. At virtually any point, but certainly by October 12, 2020, Plaintiffs could have filed this action. Instead, they waited until October 28, 2020 at 9:08 p.m. to file their complaint and did not file their actual motion for temporary relief until mid day on October 30, 2020 — the last day of early voting. The court finds this delay is critical. It is especially important in this compact early voting time frame, in a particularly tense election, where each day's voting tally functionally equated to many days or even weeks of early voting in different situations.

That would be the equitable doctrine of laches, for those you wanting to fill your brains with legal argot, and it translates roughly to, "you snooze, you lose." Particularly when your nap seems deliberately timed to maximize the number of people disenfranchised by your garbage legal arguments.

But it didn't wind up mattering anyway, because Judge Hanen ruled that the plaintiffs lacked standing, since they couldn't explain exactly how they would personally be harmed by allowing their fellow Texans to vote in a tent. And, in the event that the Fifth Circuit disagreed with that threshold determination, Hanen ruled that these polling places sufficiently comport with Texas law on early voting that he wasn't going to invalidate ballots already cast. He made no promises about drive-through votes cast on Election Day, however, and suggested that he might be willing to throw out votes cast on Election Day in something other than a building. So Harris County disassembled all but one of those mobile sites before the polls opened today.

The plaintiffs raced to file an appeal to the Fifth Circuit, where they were represented by — we shit you not — Phyllis Schlafly's son Andrew Schlafly. To their minimal credit, these assholes were no longer seeking to toss out the 127,000 "tent" votes; they just want to invalidate any drive-through votes on Election Day itself. But the Fifth Circuit put the Heisman on that, too, in a tersely worded late-night denial.

Womp. And also, womp.

[All documents available at Court Listener]

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Liz Dye

Liz Dye lives in Baltimore with her wonderful husband and a houseful of teenagers. When she isn't being mad about a thing on the internet, she's hiding in plain sight in the carpool line. She's the one wearing yoga pants glaring at her phone.


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