Hotz v. Hollins Order
Andrew: Hey everybody, this is Andrew. We are not gonna have the opportunity to cover [Laughing] all of the late breaking cases as I record this at about 1 am on Tuesday, election day, November the 3rd. This is also going to be completely unedited for the same reasons. But I really really wanted to get a quick breakdown out for you guys in Hotze v. Hollins, which is the Harris County, Texas case that you might have seen in the news. I’m gonna give you a quick recap on what’s happened because a lot of things broke over the weekend and very, very late Monday night. I think this is highly illustrative of the kinds of tactics that we are seeing the Republican party in desperation trying to put into practice.
Let me be clear, and let me cut to the punchline first. If you voted in Harris County, Texas, and (parenthetically) Harris County Texas is the largest county in Texas, it has over 16%, it’s got 1/6 of the population of the State of Texas, 4.7 million people. This has pretty much all of Houston in it. If you’re thinking, oh, a county, yeah. This is almost, like I said, it’s 4.7 million people.
Here’s what happened. The top election official in Harris County, Chris Hollins, the Harris County Clerk, put two policies into place. One of them –[Dog Bark] and that’s the live puppy, say hi to Lily everybody! Anyway, one of those policies that Hollins put into place set up drive-thru, curbside voting, early voting, in Harris County. Our best estimates are 127,000 people availed themselves of early voting, curbside, in Harris County. The major goal of the Republican party was – and I’m not making this up – to throw those votes away.
Now we know why they wanted to throw those votes away, because those votes are very likely overwhelmingly Democratic, and as of this morning the polling average in Texas is under 2%. It’s Trump + about 1.5%. Throwing out a 60, 70, 80,000 vote margin for Democrats is a pretty good strategy if you are totally evil.
Here’s the bottom line, the good news. You may have heard over the weekend that the Texas State Supreme Court rejected Plaintiff’s efforts to get those ballots thrown out. I want to tell you that the federal district court in the U.S. District Court for the District of Texas, Southern Division, this is Judge Andrew S. Hanen, one of the most conservative judges on that court, also denied plaintiffs that relief. What that means is if you voted curbside drive-thru in Harris County your vote will count.
I’m gonna talk about the appeal, I’m gonna talk about all of everything else, I’m gonna work through the procedures, but I wanted to get to the punchline first. Your vote will count. You don’t have to go in person, you don’t have to worry about being in the zone of uncertainty. Your vote counts and that’s an unambiguously good thing.
5th Circuit Appeal
Now the second thing Hollins did was set up drive-thru curbside voting in Harris County for today, for election day, and Hanen’s opinion also declined to grant relief on that as well. However, his opinion goes through – and here let me break down the legal analysis a little bit. By the way, both of these, Judge Hanen’s opinion and plaintiff’s emergency petition to the 5th Circuit, which is essentially their appeal, are up on the Opening Arguments website and we’ve linked them out from our Twitter account so you can read the underlying documents.
Back to my thought. So for each of the two policies that Hollins put into place in Harris County, the court, Judge Hanen, said question number one: do plaintiffs have standing in order to seek an injunction getting them the relief that they want? Number two: If they do have standing am I gonna grant the injunction?
With respect to throwing away the 127,000 ballots that were already cast curbside, Hanen found no to both. That was his holding as a matter of law. He said look, plaintiffs don’t have standing to get injunctive relief here, but even if they did the standard factors for granting injunctive relief way heavily in favor of not granting it. So to quote from page 7 of his opinion, “if the Court had found standing existed, it would have denied an injunction as to the drive-thru early voting.” That’s super clear.
Part of what got folks agitated Monday night is if you read pages 8 and 9 of Hanen’s opinion he then goes on to discuss the question of drive-thru curbside voting on election day. There, Hanen reaches a split result. He says “I find that plaintiffs lack standing here.” Same holding on that as with respect to early voting, but then he says “but if I found that there was standing, I would rule that plaintiffs do prevail on injunctive relief on that particular issue.” [Laughing] The specific reason for that is Texas Election Code § 43.031(b) which says that on election day (as opposed to early voting) (quote) “each polling place shall be located inside a building” (end of quote). Because external drive by temporary polling places are not inside a building … he finds that they are now, that the plaintiffs are substantially more likely to prevail on the merits, and also that the balance of harms changes. I’m not gonna go through his balance of harms analysis ‘cuz it’s ridiculous.
Here’s the point: If you’re looking at this you would say “why would it matter?” And “why would Judge Hanen go through the difficulty of saying there’s no standing here so you get no relief. But if you had standing, I would grant you relief.” The answer is what a lot of legal pundits online picked up on, which is this is a way of Judge Hanen teeing up for the 5th Circuit “hey, if you appeal on this issue here’s how the 5th Circuit can grant relief and grant the injunction right away without having to remand back to me for later fact finding,” knowing, by the way, that the 5th Circuit would have to do that work, you know, sometime between 5 pm and midnight Texas time after his opinion came out.
It was viewed, and I think fairly so, as an invitation to the 5th Circuit of hey, if you wanna stop drive-thru curbside voting on election day in Harris County, here’s the blueprint for how you do.
Plaintiffs then appealed to the 5th Circuit and, as per Judge Hanen’s decision, they appealed only the second of Hollins’ issues.
Again, let me be 100% clear about this, listen to this part of the show twice. Underline it, bold it. Plaintiffs did not challenge Judge Hanen’s ruling with respect to votes that have already been cast. They are no longer seeking that relief from the 5th Circuit; they cannot resurrect that claim and seek additional relief from the Supreme Court. The plaintiffs have given up on trying to get those 127,000 votes thrown out. That’s a victory. It’s a huge victory. It’s not one we should’ve had to win because this case is ridiculous, but nevertheless if you’re sitting there thinking “are they throwing out votes?” This is an example of where Republican tried to get votes thrown out and were rebuffed by a Republican court by a very, very conservative judge in a very, very conservative district with appeals to a very, very conservative 5th Circuit Court of Appeals. If you’re a believe like I am in the tattered strains of the rule of law, this should warm your heart.
All that’s left on appeal now is the request for an emergency order granting relief to shut down drive-thru and curbside voting on election day in Harris county. I wanna tell you that as of this recording which was, like I said, right about 1:00, which is right about midnight, which is right about the deadline for the 5th Circuit to have ruled, there was no ruling. We may not and I think will not get a ruling. Part of the reason for that is anticipating this appeal and having read Hanen’s opinion, Hollins agreed to shut down nine of the ten drive-thru polling places anticipatorily.
The reason to do that is to moot this appeal as much as possible, to protect, to bank those 127,000 votes because he had to make that decision before he could read plaintiff’s appeal and he didn’t want to risk the victory that we’ve already won that was ready to go into effect.
I will tell you having looked at Hollins’s official social media account, he says that of the 9 drive-thru places that will be shut down the lanes are still out there, and each one of those drive-thru facilities has a walk-up facility. Hollins has said if you pull up looking to drive-thru to vote curbside, you will then be directed to go inside.
If you were planning to vote tomorrow in Harris County, Texas, 4.7 million people living there, it means take your mask with you. If you can, like we’ve said, if your health permits and you can socially distance and you can safely enter a polling place, it’s gonna be slightly more inconvenient but I am okay with that holding action in order to protect those 127,000 votes that were already cast that are very likely a real – and again, it shouldn’t matter what they’re a margin for. If these were heavily Republican votes, you don’t burn people’s ballots that they’ve already cast. [Laughing] You don’t need me to be on that soapbox!
Anyway, if you’re going to vote in person today in Harris County, you’re gonna have to get out of your car. So socially distance, be safe, brave the lines. I know it’s an additional pain in the ass, it’s a reason we should be mad at Republicans. Because, look, they won a partial victory here despite losing in court just by making the argument, and the argument was frivolous and stupid in the extreme, it was rejected by one of the most conservative judges in the country, and yet ultimately plaintiffs got 50% of what they were asking for, 45%. 9 of the 10 drive-thru locations in Harris County are going to be shut down and it’s going to be moderately harder, you know, an additional roadblock has been placed in the way of you exercising your franchise in Texas. If that’s not another good reason to get out and vote Democratic, I don’t know what is.
You know, the irony is we have no idea how Democratic those same day votes are going to be in Harris County anyway. In 2016 Hillary Clinton got 54% of the vote in Harris County, Jill Stein got 1%, but Donald Trump got 42% and Gary Johnson 3%, so 45% of the vote, counting early counting in Harris County, went conservative in 2016. It very well may be the case that this suppresses a 50/50 turnout. Obviously, I would like Harris County to be way more Democratic this year.
We don’t know, again it just gets down to the fundamental difference. The Republicans are the party of making it harder for you to vote, Democrats are the party of making it easier for you to vote regardless of who you’re voting for.
Ultimately this is a good result and there is nothing, there are no legal procedures now left that will toss out those votes that have already been cast. That’s the real victory. Again, even though it’s not a battle we should’ve had to fight.
Pennsylvania Counties Not Counting Mail in Ballots
One last bonus bit, if you’ve listened all the way to the end even though I didn’t flag this before, you may have seen the news that 7 Pennsylvania counties are not going to begin counting early mail in ballots until after election night, until after all in person voting has been counted. This is a transparent effort to try and artificially drive down the vote totals on election day for Joe Biden in the state. All seven of these counties, this is Beaver, Cumberland, Franklin, Greene, Juniata, Mercer and Mountour counties in Pennsylvania. All seven were Trump counties in 2016. Three of them are tiny little counties: Greene, Juniata and Montour are tiny counties. The other three are moderately sized, the largest is Cumberland which has 235,000 voters in it and is the 16th largest county in Pennsylvania out of 62 counties. Best evidence is this is 150,000 total mail in ballots that will be affected.
This does not mean they won’t count! This will not be subject to the Supreme Court’s order, these are not ballots that are subject to potential disqualification because they might arrive late but be postmarked before election day. These are ballots that have already arrived. They will be counted, this is just more evidence that numbers, particularly out of Pennsylvania, on election night may look good for Trump and that state may ultimately go to Biden.
If you’re following our livestream, if you’re following any of the posts that I’ve made on Patreon which have been available to anybody at any level, you will see that if you trust in math, most of the scenarios do not require – [Laughs] Are such that the election is not going to be 258 to 258 electoral votes waiting on Pennsylvania’s 20 electoral votes to come in. I agree that that would be a nightmare scenario, that would require massive polling errors beyond a single standard deviation and it’s an unlikely result. Although, you know, 2016 proved that some unlikely results do happen.
That’s the late breaking news. Everything else I’m sure we’re gonna have all kinds of reports tomorrow with respect to individual polling places and individual irregularities on both sides. We’ll cover any big stories, obviously, in our livestream. 8-10 Eastern, 5-7 Pacific. Hopefully you’re all prepared to join us there and other than that this is, you know, take a deep breath. Get out there and vote if you haven’t and these are good results and be cautiously optimistic. It’s okay to be nervous! Take care of your mental health. Be cautiously optimistic for later on today and we’ll see you at 8 pm.