If You’re Gonna Vote in Texas (You Gotta Have a Legally-Qualifying Building?)

November 1, 2021

It starts with tents in Houston and turns into a legal melee with forty-eight interested parties in federal court. The November 2020 elections were particularly newsworthy, featuring a contentious presidential race happening many months into an ongoing pandemic. So how do tents and Black’s Law Dictionary come into it?

Harris County, whose county seat is Houston, Texas, responded to public concerns about voting during COVID by expanding “curbside voting” during early voting with drive-through, multi-car tents (as seen here). Curbside voting has long been allowed through Texas Election Code Chapter 64 (Voting Procedures), § 64.009 – Voter Unable to Enter Polling Place. Inability was broadly defined in the Code as “physically unable to enter the polling place without personal assistance or likelihood of injuring the voter’s health,” the latter provision utilized to justify the drive-through voting. However, Texas Attorney General Ken Paxton released guidance pushing back on this, stating “[f]ear of COVID-19 does not render a voter physically unable to cast a ballot inside a polling place without assistance,” while still recognizing election officials should not question a voter’s qualifications for being “physically unable” to enter the building.

And that’s part of the legal melee that involved “forty-eight individuals and/or entities” in Hotze v. Hollins – what is a building? Texas Election Code § 43.031(b) states “[e]ach polling place shall be located inside a building.  No voter may cast a vote from inside a motor vehicle unless the voter meets the requirements of Section 64.009.” In a federal suit filed in the Southern District of Texas, Plaintiffs Hotze, et al., sought emergency and permanent injunctive relief against Defendant Chris Hollins in his official capacity as Harris County Clerk, alleging Hollins was violating both state and federal law by “indiscriminately encouraging and allowing any and all Harris County registered voters to cast their ballots via curbside drive-through voting.” The complaint further states “garages, tents, canopies, and other ‘coverings’” the car drives into are not the actual polling location – the polling place is the car. The e-slate is physically placed in the car; the vote is cast in the car; and the voter remains in the car.” The court was not persuaded the car was the true polling place.

And here’s where the focus shifted to what is a building, and why does it matter? As discussed in Judge Hanen’s written order, Texas Election Code § 85.062 does permit “temporary branch polling places” and “movable structures as polling places” during Early Voting, but not on Election Day. During Election Day, “[e]ach polling place shall be located inside a building.” But here’s the thorn – the Code defines neither “structures” nor “buildings.” The court turns to Black’s Law Dictionary, which defines a building as “[a] structure with walls and a roof, esp. a permanent structure.”

Judge Hanen further consults Black’s and finds a “structure” to be “[a]ny construction, production, or piece of work artificially built up or composed of parts purposefully joined together.” And so, between Texas Election Code and Black’s Law Dictionary, Judge Hanen finds a tent to be a structure, but not a building, and thus finds a tent allowable for Early Voting, but not for Election Day.

While Judge Hanen denied emergency and permanent injunctions on issues of standing, he provided further analysis in anticipation of an appeal. In the written order, Judge Hanen addressed the late-timed challenge, and further stated “the Court would find that the Plaintiffs do not prevail on the element of likelihood of success with respect to early voting” for reasons of the tent/structure/building debate discussed above.

Plaintiffs timely appealed to the 5th Circuit Court of Appeals, again asking for a bar to drive-through voting, this time for election day. However,  this time, “within hours, a three-judge appellate panel denied the appeal.” However, Harris County Clerk Hollins (of Hotze v. Hollins) decided to close nine out of the ten drive-through locations for election day voting, citing fears those votes could be challenged or tossed out by further court action.

And here’s the rub—this wasn’t the only Hotze claim going on at the time. Just one day before filing Hotze v. Hollins, Hotze had filed a similar complaint with the Texas Supreme Court for a writ of mandamus. But there too, the Court denied his petition.

Beyond issues of timeliness, both the Southern District of Texas and the Texas Supreme Court agreed that the Texas Election Code allowed for this style of curbside voting, even if it had never been done before—so long as it’s not a tent on Election Day.