No reasonable judge would take this case seriously. Unfortunately, it’s being heard by Judge Andrew Hanen.
In a normal world, where judges respect both the sanctity of elections and the rule of law, Hotze v. Hollins would be laughed out of court.
But we live in a world with a 6-3 Republican Supreme Court that appears eager to rewrite longstanding rules that have governed American elections for at least a century. And the Hotze case itself will be heard by Judge Andrew Hanen — as my colleague Matt Yglesias wrote over the weekend, Hanen “is one of the most right-wing and incautious figures in the entire federal judiciary.”
So there’s a very real possibility that Hotze, which seeks to invalidate nearly 127,000 votes in Harris County (Houston), Texas, could end in disaster for the voters who cast those ballots. Harris County, it’s worth noting, is one of the bluest parts of a state that features a competitive presidential race and a US Senate seat that could potentially be won by Democratic candidate MJ Hegar.
Texas law permits early voting places to be located “in any stationary structure” or “in a movable structure in the general election.” Pursuant to this language, Harris County designated some structures that were large enough to accommodate a car as drive-through polling places. The idea was that voters who feared becoming infected with the coronavirus might feel safer voting in a location where they did not need to leave their car.
The plan to establish such drive-through sites was announced in mid-June. After multiple public hearings that the Harris County Republican Party participated in, the county approved its plan to implement these sites on August 25. Early voting took place from October 13 through the 30th, and 126,912 ballots were cast in the drive-through sites, according to the county’s lawyers.
Nevertheless, the plaintiffs in Hotze, who include Republican candidates for public office and a Republican member of the state legislature, waited until October 28 to file this lawsuit. They now claim that more than 100,000 ballots, cast by voters who followed the rules set through a bipartisan consensus among Harris County and state-level officials, should be rejected.
The Texas Supreme Court already rejected a similar claim by these same plaintiffs, the second time the state’s all-Republican Court ruled against parties seeking to invalidate drive-through voting sites in Harris County.
Nevertheless, these plaintiffs have at least some chance of prevailing in federal court. The Republican Party has built much of its 2020 electoral strategy around trying to make it harder to vote — and trying to get courts to toss out ballots. And if any judge is likely to go along with that strategy, it’s Andrew Hanen.
This case has no business being litigated in the first place because the plaintiffs waited so long
There are a number of doctrines that prevent plaintiffs from waiting until the last minute to file a case — especially if more than 100,000 people have relied on the system that the plaintiffs want to invalidate.
One of these doctrines is known as “laches.” As the United States Court of Appeals for the Fifth Circuit, which oversees Texas, has explained, “laches is founded on the notion that equity aids the vigilant and not those who slumber on their rights.” Yet the plaintiffs in Hotze didn’t just sleep on their rights; they’ve spent the past several months acting as if they were tranquilized.
Harris County announced its initial plans to use drive-through voting more than four months ago. It’s held multiple public meetings, and these drive-through polling sites were open for more than two weeks before these plaintiffs finally bothered to file a federal lawsuit. If the doctrine of laches has any force, it should apply in this case.
A doctrine known as the “Purcell principle” also warns federal courts not to change a state’s election procedures as that election draws nigh. As the Supreme Court held last April in Republican National Committee v. Democratic National Committee, “lower federal courts should ordinarily not alter the election rules on the eve of an election.”
Again, the plaintiffs in Hotze don’t just ask Judge Hanen to alter Texas’s election rules on the eve of an election — Hanen is holding a hearing on this case on Monday, literally on Election Day eve — they ask Hanen to alter those rules after millions of Texans have already voted.
If the Purcell principle means anything, it should apply in this case.
The Hotze plaintiffs misread both federal and state law
The Hotze plaintiffs’ primary argument is that Harris County set up the drive-through polling places in violation of state law. But there are numerous problems with this argument.
For one thing, the Texas Supreme Court — which is made up entirely of Republicans — has twice rejected lawsuits seeking to invalidate drive-though voting in Harris County. Current rules provide that the Texas Supreme Court has the final word on questions of Texas state law. While several justices have recently indicated that they wish to overrule this longstanding rule, they have not yet done so in a majority opinion.
But even if we accept the proposition that Judge Hanen is allowed to strike down the drive-through polling places if they violate state law, the fact remains that the polling places do not violate state law.
As noted above, Texas law provides that early voting sites may be located “in any stationary structure” or “in a movable structure in the general election.” Nothing in Texas state law provides that a “structure” ceases to be a viable polling place if it is large enough to accommodate drive-through voting.
The Hotze plaintiffs, meanwhile, point to a different provision of Texas law, which governs “curbside” voting. Curbside voting is distinct from drive-through voting. As the county’s lawyers explain, “curbside voting is a practice in which an election official brings a ballot to a voter at a location outside the polling station,” while drive-through voting “allows a voter to enter the polling place in his or her vehicle and the act of voting occurs inside, rather than outside, the polling place.”
But in any event, even if the contested polling places were classified as “curbside” voting sites, there is a strong argument that they would still be lawful. Texas law provides that “if a voter is physically unable to enter the polling place without … likelihood of injuring the voter’s health, on the voter’s request, an election officer shall deliver a ballot to the voter at the polling place entrance or curb.” In the middle of a pandemic, a voter may reasonably fear that they cannot enter a polling place without risking injury to their health.
The plaintiffs could still prevail because the case will be heard by a very partisan judge
Although the plaintiffs’ arguments in Hotze border on frivolous, they could still prevail because their case will be heard by an extraordinarily right-wing judge. Hanen’s decision, moreover, will appeal to an extraordinarily conservative Fifth Circuit — and potentially to a Supreme Court that appears eager to restrict the right to vote.
Hanen is best known as the judge who blocked President Obama’s Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program, which would have allowed many undocumented parents of US citizens and lawful permanent residents to live and work in the United States. But Hanen did more than simply rule against these immigrants; he conducted himself in a way that raises serious questions about his ability to control his temper — or to separate his nativist political views from the law.
At one point in the DAPA litigation, Hanen accused the Obama Justice Department of deliberately misleading him about an aspect of Obama’s immigration policies (the DOJ lawyers say that they merely misunderstood a question that Hanen asked them). Rather than giving these lawyers the benefit of the doubt, however, Hanen handed down a draconian order sanctioning the lawyers, the Justice Department, and tens of thousands of immigrants who weren’t even before Hanen’s court.
Under the terms of this order, hundreds of Justice Department attorneys — most of whom had never appeared in Hanen’s courtroom in their lives — had to attend a remedial ethics course. Hanen also ordered the Obama administration to turn over the names and addresses of approximately 50,000 undocumented immigrants, and he threatened to turn over this sensitive information to the “proper authorities.” (Hanen later agreed to stay this demand that 50,000 immigrants effectively be doxxed.)
Given this erratic past behavior by Hanen, the Hotze plaintiffs have at least some cause for optimism. While it’s still possible that Hanen will follow the overwhelming body of law counseling against a ruling for the Hotze plaintiffs, there is simply no guarantee that he would do so.
Author: Ian Millhiser
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