Election Law Recent Case

Recent Case: Hotze v. Hollins

Harris County, Texas—the third most populous county in the United States and home to the city of Houston—had more early voters in the 2020 general election than it had total voters in the 2016 election.  The record early voting turnout, in spite of a global pandemic, was due in large part to the efforts of Harris County Clerk Chris Hollins, who implemented a host of new ways to vote, including tripling the number of early voting sites, expanding the sites’ hours, and adding “drive-thru voting.”  Recently, in Hotze v. Hollins, the United States District Court for the Southern District of Texas heard a challenge the day before Election Day to the legality of those drive-thru voting sites.  The court dismissed the suit for lack of standing, finding that the plaintiffs’ general interest in the enforcement of state law was not an injury in fact as required by Article III.  However, the plaintiffs won out despite the ruling: because of the threat of continued appeal, Clerk Hollins shut down nine of the county’s ten drive-thru voting sites on Election Day.

In advance of Texas’s early voting period, the Harris County Commissioner’s Court—a bipartisan committee—unanimously approved the development of “drive-thru” voting.  Using its $33 million election budget (up from $4 million in 2016), the County constructed ten drive-thru polling stations out of large, movable tents.  To vote at these centers, the voter drives into the polling station tent, receives their ballot while remaining in their car, casts their vote, and drives away.  Importantly, the County differentiated drive-thru voting—which was available to all voters but only at the ten newly constructed sites—from “curbside voting,” which was available at all polling sites but was reserved only for certain voters, such as those with disabilities.  The mechanism of the two forms of voting was similar, however, as in curbside voting, a voter can remain in their car for the duration of the voting process.  By the end of the early voting period, 127,000 Texans had used drive-thru voting to cast their ballots.

On October 28, 2020, Steve Hotze, M.D., a well-known Republican activist in Texas, joined by three Republican candidates for election, filed a lawsuit in the Southern District of Texas against Chris Hollins in his official capacity as County Clerk.  Hotze sought to have the early voting drive-thru ballots disqualified and to enjoin Clerk Hollins from continuing to operate the drive-thru stations on Election Day.  The plaintiffs argued that drive-thru voting was an unlawful expansion of curbside voting in violation of the Texas Election Code, and that this state law violation, when committed by the County Clerk, created a federal violation of the U.S. Constitution’s Elections Clause and Fourteenth Amendment.  Although the Texas Supreme Court ruled on October 22 that drive-thru voting did not violate the Texas Election Code when used in early voting, plaintiffs argued in support of the Elections Clause action that (1) federal courts have review over state court determinations of election law because the Election Clause specifically delegates authority to state legislatures, not state courts; and (2) that the legality of drive-thru voting may be different in early voting than on Election Day due to slight textual differences in the governing state laws (sections 85.062 and 43.031 of the Texas Election Code, respectively).  Additionally, plaintiffs argued that because voters in Harris County had access to drive-thru voting and voters outside the county did not, the scheme violated the Fourteenth Amendment’s Equal Protection Clause.  Between the filing of the suit and the hearing scheduled before Judge Hanen for the morning of November 2, forty-eight individuals and entities filed to intervene.

The Southern District of Texas dismissed the case for lack of standing.  Judge Hanen delivered an order from the bench at the close of the hearing and released a written order later in the same day.  The court reviewed standing for the Elections Clause and Fourteenth Amendment claims separately.  On the equal protection claim, the court held that concerns over disparate treatment between voters of different Texas counties was a “generalized grievance” that did not give rise to a sufficiently particularized injury.  For the Elections Clause claim, the court found that binding precedent seemed to suggest that “only the state legislature (or a majority of the members thereof) have standing to assert a violation of the Elections Clause.”  A suit by any one individual would be indistinguishable from a suit launched by another private individual, as all people share the same general “interest in the integrity of the election process.”  However, Judge Hanen noted that the cases relied on as precedent may be distinguishable, because here the individuals joining Hotze as plaintiffs were themselves up for election and thus may have a more personal stake in a lawful election. 

Judge Hanen noted that if plaintiffs did have standing, he would have denied the requested preliminary injunction to stop the tallying of ballots already cast via drive-thru voting, but would have enjoined the usage of drive-thru voting on Election Day.  Regarding early votes already cast, the court noted that plaintiffs were unlikely to succeed on the merits of their claim and had waited too long to bring it.  Plaintiffs argued that in Hollins’s drive-thru voting program, “a car is turned into a polling location” in violation of the Texas Election Code.  However, the court noted that section 85.062(b) of the Code authorizes county officials to use “movable structures” as polling locations in early voting, so the tents constructed for drive-thru voting were likely to meet that requirement.  Additionally, the court noted that plaintiffs could have brought their action as early as the summer, when plans for drive-thru voting were publicly developed.  Instead, plaintiffs waited until October 30—the last day of early voting—to file their motion for temporary relief, which led to a hearing on the actual eve of Election Day.

However, Judge Hanen would have granted the injunction of drive-thru voting on Election Day.  Because section 43.031 of the Texas Election Code, governing polling on Election Day, requires that polling occur inside a “building,” the tents constructed for drive-thru voting would not suffice.  And unlike its finding for the relief sought regarding early votes, the court determined that the motion for enjoining drive-thru voting on Election Day was timely because it did not threaten to alter the status of votes already cast.  The court did not address defendant’s argument that Purcell v. Gonzalez compels lower federal courts to “not alter the election rules on the eve of an election.” 

In a one-sentence, per curiam order issued late on November 2, a motions panel of three Fifth Circuit judges affirmed the district court’s ruling.

By waiting until the eleventh hour to launch their challenge of drive-thru voting, plaintiffs were able to gain a practical victory, if not a legal one.  Through the threat to appeal the district court’s opinion, they created enough legal uncertainty that the County Clerk shut down nine of ten Election Day voting sites.  The one remaining site was housed inside the Toyota Center, home of the Houston Rockets, which the County Clerk believed would satisfy section 43.031’s “building” language

If the plaintiffs in this case really believed that drive-thru voting violated Texas law, their complaint “could and should have been made earlier,” as Judge Hanen noted—even for their Election Day claim.  Bringing the suit earlier would have left ample time to obtain a clear answer from an en banc Fifth Circuit rehearing or even an appeal to the United States Supreme Court.  By waiting until nearly Election Day to file their motion for injunctive relief, plaintiffs ensured there would be no clear answer on the legality of drive-thru voting on Election Day itself.  Because of the uncertainty they created, the County had no choice but to shut down ninety percent of available drive-thru polling stations.  To do otherwise would have been to risk disenfranchising voters after they had cast votes in reliance on the County’s provision of drive-thru voting.

Harris County, and Texas in general, experienced record turnout in this year’s election.  However, in a state ranked 50th in the nation by the Election Law Journal for ease of voting, every additional roadblock works to prevent voter turnout from being even higher.  The work being done by County officials like Chris Hollins to expand access to voting is made more difficult by added legal uncertainty.  Steve Hotze and fellow plaintiffs were able to inject that uncertainty into this year’s election by waiting until the last minute to challenge the legitimacy of drive-thru voting.