Hotze v. Hollins
Summary
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 an illegal scheme, and so filed this lawsuit with the US District Court for Southern Texas on behalf of himself and several candidates for state and federal office, almost a week before election day.
Hotze argued that inventing a new way to vote was a job for the legislature, not county officials; that using this voting procedure in Houston but not the rest of the state illegally treated some voters different than others; and that drive-thru voting was a form of curbside voting, for which "a registered voter must prepare and sign a sworn application". As a solution, he sought court orders "prohibiting the implementation of a universal drive-thru voting scheme" and compelling election officials "to review all curbside voting applications", at least until the end of the trial.
Hollins submitted his defense, arguing: that drive-thru voting was "a voting procedure that was announced publicly months ago, approved by the Texas Secretary of State Elections Division, used successfully in the primary elections without challenge," that "the Texas Supreme Court has denied relief based on these same arguments about the meaning of the Texas Election Code—twice," that plaintiffs weren't actually harmed by drive-thru voting, that plaintiffs waited too long before filing their suit, that invalidating 126,912 votes already cast would cause great harm to Houston voters who no longer had the option to find other voting arrangements, that "there is no such thing as a curbside voting application," and that location of drive-thru polls were not chosen in a partisan manner since "The Harris County Commissioners Court—a bipartisan body currently composed of three Democrats and two Republicans—unanimously approved the location of the drive-through polling places."
The Democratic Party (DP) motioned the court to let them intervene, and reiterated some of Hollins' arguments.
Judge Andrew Hanen of the US District Court for the Southern District of Texas, Houston Division, ruled that nothing was done that harmed Hotze, so he had no standing—no basis to file a lawsuit. Therefore, the lawsuit is dismissed. But, just in case Hanen was overturned about Hotze's standing, he went on: "If the Court had plaintiffs with standing, it would have denied in part and granted in part." Specifically, since "the Texas Election Code provides for temporary branch polling places during early voting," but "The Election Code makes clear that, on Election Day, each polling place shall be located inside a building," Judge Hanen would only have blocked the election day drive-thru voting—not the early drive-thru voting. "Moreover, the plaintiffs failed to demonstrate under the Texas Election Code that an otherwise legal vote, cast pursuant to the instructions of local voting officials, becomes uncountable if cast in a voting place that is subsequently found to be non-compliant," so Judge Hanen wouldn't have interfered with the counting of ballots already cast. But since the plaintiffs lacked standing to sue, the entire lawsuit was dismissed even the election day drive-thru voting was still allowed.
Hotze appealed this to the US Court of Appeals for the 5th Circuit, which issued their denial the same day.
Hollins was persuaded by the courts, and though he was not ordered to he voluntarily closed down 9 of the 10 drive-thru polling places on election day. The remaining one was at the Toyota Center, Houston's NFL football stadium. He tweeted his rationale: "The Toyota Center DTV site fits the Judge's definition of a building ... It is thus unquestionably a suitable location for Election Day voting."
Courts
5th Circuit
Carl Stewart
James Graves
Stephen Higginson