Late Monday night, the US Court of Appeals for the Fifth Round rejected the request of four Republicans and their attorneys for the closure of the Harris County driving voting locations in Houston, Texas.
Just before Fifth Street ruled in favor of Harris County in Hotze v. Hollinshowever, Harris County Secretary Chris Hollins announced that he would nonetheless close 9 out of 10 pass-through polls in his county – voluntarily giving Republican parties a 90% victory. even though they lost in court.
Why would you do that?
The short answer, as Hollins explained on Twitter, is that he doesn̵7;t believe an increasingly conservative justice will allow ballot counting at many Harris County driving locations. Hollins shut down the websites for fear that Republican justices would order the disposal of these ballots after the election:
My job is to protect the right to vote for all Harris County voters, and that includes those who will vote on Election Day. I cannot encourage voters to vote in the tent if that puts their vote at risk. 3 /
– Chris Hollins (@CGHollins) November 3, 2020
Only one of the locations that drive through Harris County is in one permanent structure – the site at the Toyota Houston Center. And a conservative federal judge proposed on Monday that Texas law only allows early voting on Election Day to take place in “buildings” rather than in temporary structures like tents. As a result, Hollins has closed nine locations that are not located in permanent buildings due to extreme caution.
The Hotze The case, as I explained before, borders on frivolous. Should not have gone to federal court in the first place. And it certainly shouldn’t be litigated late at night the day before an election – there are longstanding theories that say that those who wait until the last minute to sue won’t win.
But a Republican Supreme Court on March 6 sent big signals last week that it intends to rewrite many of the rules that have dominated elections for more than a century. Worse yet, some judges have threatened to legally vote according to the rules that apply when voters submit their votes, but that violates the new rules that the Supreme Court created. after voters voted.
That puts people like Hollins in an intolerable position. They not only have to make sure that their local election procedures are in compliance with the law, but they also have to ensure that those procedures comply with whatever the five Republican judges can decide. laws should apply in the future.
And if election officials fail to predict what the court will do in the future, countless voters could be deprived of their right to vote.
How we got here
The Hotze this case seeks to shut down all 10 driving voting sites in Harris County – sites set up so voters fearing Covid-19 infection can vote in an environment where they have little exposure with other people. It also seeks to roll out nearly 127,000 votes that were cast off at these sites during the early voting period October 13-30 (Although it is unclear whether Hotze plaintiffs will pursue their case to the Supreme Court, another plaintiff may make similar requests after the election.)
There are many reasons why Hotze The litigation will fail, but one of the most important is that the plaintiffs in this case – including a sitting Republican legislator and two Republican candidates for public office – have waited for. it’s very late to file their federal lawsuit.
Plans to set up such driving sites were announced in mid-June. After numerous public hearings in which the Harris County Republican Party participates, the county approved the plan to roll out the sites on August 25 – with a combination of bipartisan officials supporting the sites. . Early voting took place October 13-30, and 126,912 votes were cast at the driving sites, according to the county attorneys.
But Hotze the plaintiffs waited until October 28 to file the lawsuit, after tens of thousands of voters took advantage of the early voting.
There are some theories that say plaintiffs wait too long to claim their supposed legal rights will not take precedence. As the Fifth Round explained, a theory called “laches” states that “justice supports those who are alert, not those who fall asleep about their rights”.
Similarly, a doctrine known as the Purcell principle warns federal courts not to change a state’s electoral rules when an election approaches. When the Supreme Court held in April last year in Republican National Committee v. Democratic National Committee, “The lower federal courts generally must not change the electoral rules the eve of an election.”
And but Hotze the plaintiffs filed their motion requiring the Fifth Race to close the driving polling places at 9:30 pm on Monday – before election day.
The Republicans on the Supreme Court did not apply Purcell fairly and equally.
Most Supreme Court Republicans have been ruthless in applying the Purcell principle to revoke lower court orders to make voting easier. The Republican National Committee for example, the case where certain mailed ballots were ordered to be issued because of a lower court judge who ordered those ballots to be counted too close to election day. Justice Brett Kavanaugh is also based on Purcell’s principles when he participates in a restoration decision that requires absent South Carolina voters to be signed by a witness.
But the Court was less enthusiastic about the Purcell principle as Republicans tried to make voting more difficult.
In Pennsylvania Republican Party sued Boockvar, four judges – Clarence Thomas, Samuel Alito, Neil Gorsuch and Kavanaugh – all voted to change Pennsylvania’s electoral rules to rule out some late absentee votes. And they voted to make this change less than two weeks before the election.
Notably, newly confirmed Justice Amy Coney Barrett was not present in Court when Republican Party first coming before judges. It is likely that she will give a fifth vote to change Pennsylvania’s election rules to make them even harsher, if she did. Republican Party case.
Judges Thomas, Alito and Gorsuch, meanwhile, threatened to throw Pennsylvania relevant ballots after The election took place. And they could do the same thing in a similar case in North Carolina.
With this behavior, it is understandable why Hollins decided to shut down nine poll sites. Election attorneys can no longer give reliable advice to their clients about what that client can and cannot do. And the Supreme Court seems to be applying the same doctrines as the Purcell erratic rule – or maybe even a party -.
For these reasons, district secretaries like Hollins cannot be sure that their actions will be accepted by the court or that voters will not dispose of their ballot for arbitrary reasons, even if the law is present. Practice states that such votes should be counted. That means that the polling places will be closed and election officials will take other actions that make voting more difficult, not because the law requires such actions, but because because election officials feel unsure about what the courts will do.