Nearly 127,000 Harris County drive-thru votes appear safe after federal judge rejects GOP-led Texas lawsuit

Erik (HASH) Hersman via Flickr creative commons
A federal judge Monday rejected a request by a conservative activist and three Republican candidates to toss out nearly 127,000 votes cast at drive-thru polling sites in Texas’ most populous, and largely Democratic, county.

The ruling by U.S. District Judge Andrew Hanen, a George W. Bush appointee, follows two earlier decisions by the all-Republican Texas Supreme Court rejecting similar efforts by Republicans challenging the validity of drive-thru voting in Harris County. Although Hanen's ruling is still expected to be appealed quickly, it appears to clear the way for counting the early voting drive-thru ballots on Election Day.

In his ruling from the bench, Hanen said he rejected the case on narrow grounds because the plaintiffs did not show they would be harmed if the drive-thru ballots are counted. He noted, however, that the U.S. 5th Circuit Court of Appeals could think differently if the cases reaches them.

If he had ruled on the larger issues in the case, Hanen said he would have rejected the request to toss out votes already cast. But Hanen said he would have shut down Harris County's drive-thru polling places for Election Day, because the tents being used for the sites don't qualify as voting inside a "building," a requirement under state election law.

"If I were voting tomorrow … I would not vote in a drive-thru just out of my concern as to whether that’s illegal or not," he said. "I am going to order the county to maintain all the drive-thru voting records … just in case the 5th Circuit disagrees."

Ten percent of Harris County's in-person early voters cast their ballots at the county’s 10 drive-thru locations. Dismissing the votes would have been a monumental disenfranchisement of voters in a presidential election besieged with fights over voter suppression and fraud.

Harris County Clerk Chris Hollins said after the hearing that the county's 10 drive-thru locations would remain open Tuesday.

The judge ruled from the bench after a hearing with plaintiffs, the county and numerous Texas and national voting rights and political groups joining Harris County to argue that the drive-thru program was legal under Texas election law.

The latest challenge to drive-thru voting was brought to the Houston federal court in a last-minute filing last week by litigious conservative Steven Hotze and Harris County Republicans state Rep. Steve Toth, congressional candidate Wendell Champion and judicial candidate Sharon Hemphill. They sought to have the tens of thousands of votes already cast declared illegal, arguing that the county’s drive-thru program was an expansion of curbside voting, which under state election law is only available for voters with disabilities or sick voters.

Curbside voting, long available under Texas election law, requires workers at every polling place to deliver onsite curbside ballots to voters who are “physically unable to enter the polling place without personal assistance or likelihood of injuring the voter's health.” The plaintiffs also argued that the drive-thru program expanded voting beyond what the Texas Legislature had allowed, using the pandemic as an excuse.

The Harris County Clerk’s Office argued that its drive-thru locations are separate polling places, distinct from attached curbside spots, and therefore can be available to all voters. The clerk’s filing with the Supreme Court in the earlier lawsuit also said the Texas secretary of state’s office had approved of drive-thru voting. Keith Ingram, the state’s chief election official, said in an earlier court hearing in another lawsuit that drive-thru voting is “a creative approach that is probably okay legally,” according to court transcripts.

And even if the court did decide the polling places violated state election law, county officials argued, Texas law and court precedent dictate that voters shouldn't be penalized for election officials’ errors, and the votes would still be valid. Hanen appeared to agree with this sentiment, noting that he didn't "necessarily find the voting to be illegal as opposed to the voting place."

After losing twice in the state courts, Hotze and the candidates made the argument in a federal court hearing Monday that Harris County’s drive-thru voting violated the U.S. Constitution, and therefore the votes should be deemed invalid.

The legal challenge gained national attention as lawsuits across the country pit Democrats and voting rights groups seeking to expand voting access during the pandemic against Republicans pushing to limit voting options.

Over the weekend, many voting rights and political groups joined the fray, filing briefings before Hanen supporting the legality of the votes and hoping to take part in the lawsuit. Some of the parties included the ACLU of Texas, a Texas-based NAACP, the League of Women Voters of Texas, former Republican House Speaker Joe Straus, Texas’ Democratic U.S. Senate candidate MJ Hegar’s campaign and national Democratic campaigns.

Mitchell Ferman contributed to this report.

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