Thread by @RMFifthCircuit

Judge Hanen's hearing is now open on the conference line

txs.uscourts.gov

I can hardly hear anything, but from the little I can gather Hanen doesn't seem inclined to throw out the votes. But again, I can hardly hear.

Someone (a woman) is destroying the Bush v. Gore argument right now.

Hanen is now saying he's concerned about the elections clause of the constitution. The lawyer is responding.

He's now seeing who else wants to talk. This hearing is very consistent with my experiences with Judge Hanen.

Also, there is a kid talking in the background (from the call) and it's great.

Another lawyer is raking plaintiffs over the coals for their delay.

He's letting @steve_vladeck's lawyer from Reed Smith talk now.

A lawyer who represents some voters who voted drive through is talking now. This is just filling in the corners at this point. Hanen seems like he's done with whatever he wanted, unless he has more Qs for Plaintiffs.

The lawyer says he represents his mother. Hanen thinks this is funny.

A lawyer with pregnant wife who is representing himself is now talking.

Pregnant wife lawyer says "I'm here to say my vote counts."

I think plaintiff's counsel is arguing again, but no idea what he's saying. He must be away from the mic.

He's saying something about how the legislature only provided for mail in voting, so that's it.

More shouting from plaintiff's counsel but I don't know what he's saying. Hanen is letting him talk.

This call is made even better by fact that someone shouts "MUTE YOUR LINES" every 40 seconds.

Hanen points out, I think (I can hardly hear), that all kinds of counties do different things with voting, so what's the big deal.

Lawyer shouts more things in response, but again, no idea what he's saying. I hear the word legislature.

A new person has told us to mute our mics after someone logged on and said "how are you doing."

This is what I'm tweeting because Woodfill continues to shout stuff I can't really hear.

"I'm on hold with animal services."

PLEASE MUTE YOUR PHONES, comes the voice again.

Hanen now wants to talk about the other aspects of the test for a preliminary injunction. (this was all likelihood of success, maybe?)

Hanen just asked a clearly skeptical question of Plaintiffs but there are some many people logging in and we can hear all their notifications when they log in

Hanen asks "what about the public interest" to Plaintiff's counsel (that is one of the factors they have to satisfy for the injunction they're seeking).

Woodfill says something like the drive-through voting has abrogated the legislature's rules on how you vote. "It's not close enough"

Mithoff (one of the Defendant's counsel, a very well known lawyer here) is now being asked about irreparable injury and public interest.

Someone is sighing audibly on the conf. call. Unnnng, she says.

Literally 25 beeps of people logging in, no clue now what Mithoff is saying, but it's about the SCOTUS opinions - sounds like Purcell type stuff.

Someone is analyzing the case on the conference call and isn't muting.

The woman from before is going to town on the 4 days before election day point (this is the winner) and she says it's not at all clear voters would be able to vote again - weighs heavily against throwing out the votes.

"We were inundated with voters who wanted to be represented"

"Invalidating the ballots would be profoundly inequitable"

says this good lawyer. Don't know who it is.

"Even the most limited remedy given to plaintiffs would create chaos tomorrow." (YES)

"Voters would reasonably fear they could not be allowed to vote again."

Hanen says he doesn't think Purcell is applicable, because that's about enjoining state law, this isn't that. That's a negative for the voters - Purcell is one basis they would win.

One lawyer is citing Hanen's own opinion in the DAPA (?) case back to him (where he refused to unscramble an egg)

A dog in the distance howls. I too would like to howl.

Hanen: "If the court thinks everything to date is legal, but tomorrow the provision on movable structures does not apply to election day, should I let them vote, or should I l et another 100K vote?"

This is not hypothetical, even though he said he was - I think Hanen thinks thi

"There's toothpaste at the door."

Hanen instructs lawyers not to use elephants or donkeys in animal analogies. Good call, Judge!

Rooker Feldman makes an appearance.

{Animals: A lawyer was trying to say camel's nose under the tent but I think he said elephant's trunk}

Lawyer says "comity."

Hanen - "What's that?"

"Like getting along, judge"

Hanen: "We used to do that!"

LOUD CRACKLE NOISES

Hanen: "You're not trying to convince me that Rusty (Hardin) read a Supreme Court opinion, are you?"

LOL

Hanen correctly points out that no one has answered his actual question - if drive-in voting was OK in the past, but not tomorrow (because the statute is different) what do I do?

ANSWER THE JUDGE'S QUESTION FOLKS! PLEASE.

A lawyer is talking about his clients: they aren't going to be able to vote again tomorrow if their votes are invalidated. He tells an evocative story about a voter whose fingers unlocked from arthritis just long enough to vote.

WAS THAT A FLUSH?

Hanen is back to the question of what we should do tomorrow. That is the difficult question for him it seems.

"You really want me to encourage people to vote illegally tomorrow?"

Hanen's worried about letting peopel vote tomorrow drive in, and then have a dispute after the election. Isn't it better to make sure people cast a valid vote tomorrow beyond dispute? (That's Hanen, not me)

Hanen says the danger is not too high - they'll come to the drive-in, it will be closed, and they'll go to the adjacent polling place.

Hanen: "Why are you willing to gamble the votes tomorrow on this?"

We've lost courtroom audio. Has Hanen left the bench?

OK, I hear it's a break.

We have confirmation that this audio feed is literally a phone held up to the speaker.

For reporters who are following me: It's Judge HAY-NEN not Han-en.

Another discussion of someone's laundry while we wait for the Judge.

OK, we're now on Zoom, and we're on standing for a different plaintiff?

Hanen asked people not to tweet from inside the courtroom.

He was clear it was fine from outside.

The Zoom link has solved the random commentary from listeners problem.

Pregnant wife lawyer was so frazzled that he forgot his wife has since given birth? Anyway, the debate now is about the standing of one party.

Hanen will announce his ruling orally in 15-20 minutes.

The Fifth Circuit can correct what I do wrong once I've ruled, Hanen says.

So, if I was forced to bet, I think Hanen says the plaintiffs have standing, denies injunctive relief with respect to all votes already collected, but does *something* about future drive-in votes (l.e., for tomorrow).

What is the something?

The something could be warning Defendants that perhaps those votes are in jeopardy, and maybe they should shut it down.

The something could be granting injunctive relief on those votes for tomorrow.

The something could be grumping about it but denying relief.

Guys, Hanen's quote about the Fifth Circuit is nothing weird. Judges say that all the time - it's, "I've got this huge ruling, I'm going to do my best, and the bosses will take a look too."

We don't have to make everything into a deal.

It seems like Judge Hanen is about to come back, because the courtroom audio just came back (I think)

I noticed some people were shocked Hanen didn't know what "comity" was (in an earlier tweet). He does. He just didn't hear the comment.

Lawyers in courtroom do not seem to realize we can all hear them. Someone tell them please!

Still waiting. No update.

While we're waiting, for my new non-lawyer followers --> The next court above this court is the Fifth Circuit. Given the red-hot-banana-pants emergency this case is, I expect the Court will take an emergency motion from either side telephonically.

The Court does that in the most extreme and urgent circumstances.

It's possible that whoever is mad about this ruling might go straight to the Supremes. The Supreme Court will act today. No question to me. Most likely, they'll just deny whatever appeal, but it will get a look.

The big exception is if Hanen comes out and invalidates the 100K votes. In that case (NOT WHAT I AM EXPECTING) I expect SCOTUS to move expeditiously. No way they will allow that many votes to disappear without weighing in. Unpossible, as the Simpsons might say.

I mean, just parsing the logistics, if this was me commanding the next steps, let's say Hanen announces his ruling at 2:30, and my client wants relief. I think I need to be at the Fifth Circuit by 3. Somehow get an answer by 4, and get to SCOTUS shortly thereafter.

I would be on the phone right now with the clerks of those courts telling them that the red hottest of all judicial emergencies imagineable was coming. The Clerk of the Fifth Circuit is a super-hero - the staff will make it happen (that is, will get a panel together to hear it)

The Judge is here.

No standing for plaintiffs! The case is over.

"I'm not happy with that finding. But the way I look at it, the law requires it."

"I'm not writing on a clean slate." {referring to SCOTUS standing opinions

"If I thought plaintiffs had standing, I would deny the injunction as to votes that have already taken place. "

So he's making this bullet proof.

"I also would not enter an injunction because I don't find it timely. This has been happening at least since September, when the Harris County Commissioner's Court allocated money."

"I also do not find the voting to be illegal. These are registered voters who gave their ID."

"I find when you balance the harms, it weighs against granting relief."

"If I had found standing, I would *probably* enjoin tomorrow's voting."

"Three other points:"

(a) "If I were voting tomorrow, I would not vote through a drive-through to make sure my vote would be valid."

(b) "I am going to order you to maintain records of who votes drive-through tomorrow."

(c) "I am denying the motions to intervene because I am dismissing the case."

So, non-lawyer followers, why did Hanen say what he would have done had be found standing?

His point is: if the Fifth Circuit says I'm wrong about standing, I want them to know what I thought on the merits.

The reason is, so the Fifth Circuit can *affirm* his ruling even if they disagree on standing.

OK - I said the case was over. I meant here. The Plaintiffs can still appeal to the Fifth Circuit under the procedures I outlined earlier.

Given Hanen's ruling, I would expect all appeals to be summarily dismissed. But this is gonna have to play out.

I'm going to lose visibility on this case as it goes up. Because of the extreme time sensitivity, a lot of this is going to be done on the phone/emails to the Court - we're not going to see all the public filings like normal (I think)

Thank you all for the encouragement. I am pooped. And have actual work (I'm like a lawyer or some such).

One last note: mighty lawyering from everyone involving on the side of voters, especially @ChristinaA_Ford. Y'all make me proud.