Federal judge rejects latest attempt to block nearly 127,000 drive-thru votes in Texas

A federal judge on Monday dismissed a lawsuit filed by four Republicans seeking to prevent officials from counting about 127,000 votes cast at drive-thru polling locations in the Houston area.

The lawsuit asked a judge to invalidate votes cast at the drive-thru sites. Harris County’s 10 drive-thru locations were established as part of an effort to limit the spread of coronavirus.

Judge Andrew Hanen’s ruling comes just over one day before voting concludes in the presidential election, and one day after the Texas Supreme Court denied a similar petition seeking to block Harris County’s drive-thru votes filed by the same group of Republicans. The Texas Supreme Court already rejected a similar case last month.

In delivering his decision just half an hour after hearing arguments, Hanen criticized the timing of the lawsuit.

“I don’t find it timely. (Planning for drive-thru voting) has been going on basically all summer… And then at least since October 16th, people have actually, I think it’s the 16th, have been voting. And to file it late last week, I find that not to be timely and that therefore the likelihood of success does not weigh,” Hanen said. 

He said the plaintiffs did not adequately argue why, even if Harris County’s plan was not permissible, voters should be punished. 

“They voted according to the statute as far as they’re concerned, that also weighs into balancing the harms. We have over 120,000 people that have already voted. With the vast, vast, vast majority of those did that in reliance on their public officials telling them that this was legal and this was the right way to vote and that it had been sanctioned,” Hanen said.

The plan to have drive-thru voting was established in Harris County and approved by Texas’ Secretary of State in June. The Harris County Commissioners Court, the county’s executive board, also approved the plan in August.

The plaintiffs are conservative activist Steven Hotze, state Representative Steve Toth, congressional candidate Wendell Champion and judicial candidate Sharon Hemphill. Texas Republicans have been critical of Harris County’s expansion of voting access amid the pandemic. The county, which is home to Houston, has already seen 1.4 million votes cast. It’s considered a crucial battleground in a state where polls depict a close presidential contest.

Attorneys for the plaintiffs argued that Harris County lacked the authority to “invent a new way of voting” without going through the state’s legislature. Lawyers for the county argued that state law allows county officials to determine in what “structures” are acceptable polling locations, and does not rule out cars for that purpose.

Attorneys arguing that votes cast at the drive-thru locations should be counted cited examples of voters who had tested positive for COVID, had recently undergone surgery and were currently out-of-state, and therefore unable to arrange an alternative to vote Tuesday if their original votes were rejected. They warned that a finding against Harris County could violate voters’ rights.

“Please just don’t assert that voters did anything wrong. Their only fault was relying on the instruction of county election officials, even if was an error… invalidating the ballot would be profoundly inequitable, and it would almost certainly violate due process,” said one attorney.

One attorney for Harris County said blocking so many votes the day before an election would cause “a frantic situation, with voters trying to figure out if they can cast a provisional ballot.”

In a press release, Texas Democratic Party Chair Gilberto Hinojosa lauded the decision.

“The ruling to let the nearly 127,000 drive-thru votes stand was the correct decision but it doesn’t change a simple fact: This should have never been an issue in the first place,” Hinojosa said. “Texans who lawfully voted at drive-through locations should have never had to fear that their votes wouldn’t be counted and their voices wouldn’t be heard. This lawsuit was shameful and it should have never seen the light of day.”

The plaintiffs appealed Monday’s decision to the United States Court of Appeals for the Fifth Circuit. Their appeal for an emergency injunction to block drive-thru voting Tuesday was rejected, but it was also rendered largely moot before the court could rule.

Hours after Hanen’s order was filed Monday, Harris County Clerk Chris Hollins announced that nine of the county’s 10 drive-thru polling locations would be closed Tuesday, the final day of voting for this year’s election. 

Hollins wrote in a series of tweets that Hanen’s order left the door open for challenges to votes cast Tuesday at all but one drive-thru location. Hanen wrote Tuesday that Texas election law allows for “movable structures” as early voting locations — which he said the tents used to how drive-thru ballot boxes qualify as — but not for election day locations. 

“In order to allow for drive-thru voting on Election Day while ensuring that all votes will be counted, the only drive-thru voting center on Election Day will be at Toyota Center,” Hollins tweeted Tuesday night, referring to the arena home of the NBA’s Houston Rockets.

“I know that drive-thru voting is a safe and convenient option for Harris County voters, but we also have 800 walk-in voting centers available for Election Day that we have worked tirelessly to make safe for voters and election workers,” Hollins said.

Harris County’s drive-thru sites are all located near to in-person voting locations.

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