Hotze v. Hollins

In advance of the early voting period in Texas, Harris County, which includes Houston, the state’s largest city, approved the development of drive-thru voting, where ten polling sites would be constructed using large movable tents, and voters could cast their ballot while remaining in the car. Unlike curbside voting, reserved for certain voters and available at all polling sites, all voters could use drive-thru voting. By the end of early voting, more than 127,000 Texans had done so.

On October 28, 2020, a private activist and three candidates for election filed a lawsuit in federal court seeking to disqualify the ballots cast with drive-thru voting. They argued the program violated the Texas Election Code – despite the Texas Supreme Court denying a writ of mandamus based on this argument, from the same plaintiff, only six days previously. The lawsuit did not only seek to shut down drive-thru voting on election day – it also sought to discard the more than 127,000 ballots already cast.

The ACLU and the ACLU of Texas intervened in the lawsuit, representing the League of Women Voters of Texas and several individuals who voted using the drive-thru option. On November 2, 2020, the court held a hearing, and the same day, dismissed the case because the plaintiffs lacked standing, or a sufficiently particularized legal injury, to sue.

However, the court also held that if the plaintiffs did have standing to sue, it would find the drive-thru voting program illegal. Therefore, the court said, if its decision on standing was reversed on appeal, the program could not operate on election day, though votes already cast using the program would be counted. The Fifth Circuit affirmed the ruling later that day. However, because appeals were inevitable – and in fact, were already filed at the time of its decision – Harris County chose not to operate nine out of its ten drive-thru voting sites on Election Day, out of fear an adverse court decision would cause those ballots not to be counted.

On appeal, the Fifth Circuit concluded that the plaintiffs’ request to enjoin the use of drive-thru voting in Harris County was moot as to the 2020 election, which at that point had concluded 11 months prior. The court also held that the plaintiffs lacked standing to enjoin the speculative use of drive-thru voting in an election that was held in November 2021.