In re: Hotze II

Houston, Texas is located in Harris County, where Chris Hollins serves as County Clerk. For the 2020 election, his office invented the idea of drive-thru voting to spare voters from the populated, indoor spaces that posed a danger of contracting COVID. Voter/activist Dr. Steven Hotze, M.D., believed that creating a new manner of voting was contrary to Texas election law, and so filed this lawsuit with the Texas Supreme Court on behalf of himself and several candidates for state and federal office, a couple weeks before election day.

At the same time that Hotze filed the motion for a temporary order from the Texas Supreme Court, he also filed a similar motion in the US District Court for the Southern District of Texas.

His lawyers also argued that implementing this voting procedure in Houston but not the rest of the state violated the US constitution's equal protection clause, and made special note that Hollins is a Democratic Party official serving a Democrat-majority county where 9 of the 10 proposed drive-thru voting locations were in Democrat-majority neighborhoods. They sought a court order preventing drive-thru votes from being counted and "to restrict curbside voting to only those Harris County registered voters who have submitted sworn applications", both orders to be binding at least until the end of the trial.

Hollins defended his conduct, arguing that he had sought and obtained approval from the Texas Secretary of State, the Commission Court, and through a test program from the Texas public, all through normal procedures and routines. The program was first announced in July, and Hollins argued that Hotze et al had waited all the way until October to complain. He summed up his argument this way: "Relators are wrong about the law, too late, and in the wrong forum; thus, their petition and motion should be promptly denied."

Getting into specifics, Hollins indicates that "they may very well harm their own election chances by seeking relief should drive-thru voters disproportionately prefer their candidacies compared to Harris County voters as a whole" so there's no basis to believe their candidates were harmed. He further alleges that Hotze requests illegal relief, saying "Only through the process of an election contest can votes be declared invalid and not counted. But Hotze is asking this Court to ignore that statutory scheme, create a new remedy outside the bounds of the Code, and order that Harris County drive-thru votes be quarantined and not counted on Election Day." Furthermore, Hollins alleges, "There is no such thing as a curbside voting application under the Election Code. Voters simply ask for curbside assistance, and the election clerks provide it without interrogating them as to their health status.", and "curbside voting is not the same as drive-thru voting temporary polling locations."

The Texas Supreme Court denied both of Hotze's motions in a very brief decision, saying "Today the Supreme Court of Texas denied the Relators’ Emergency Motion for Temporary Relief and denied petition for writ of mandamus in the above-referenced case."

Several concerned citizens wrote amicus briefs in this case, including one named Wolfgang de Maño, a political science Ph.D. who wrote in to complain that the court merely denied the injunction rather than ruling against the lawsuit on the merits with a full opinion. His brief is an interesting analysis of court responsibilities and jurisdictional overlap.