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Federal judge allows Texas’s Harris County to count ballots cast via drive-through voting

Demonstrators gather outside a federal courthouse to voice their support of drive-through voting in Harris County on Monday.
Demonstrators gather outside a federal courthouse to voice their support of drive-through voting in Harris County on Monday. (Godofredo A. Vásquez/AP)
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A federal judge on Monday rejected Republicans’ attempt to invalidate more than 100,000 ballots cast via drive-through voting in Harris County, Tex., home to Houston. But he also cautioned those who have not yet voted to avoid using those centers on Election Day.

“If I were voting tomorrow . . . I would not vote in a drive-through just out of my concern as to whether that’s legal or not,” said U.S. District Judge Andrew Hanen, an appointee of President George W. Bush, noting that an appellate court could overrule him.

The plaintiffs in the case — Houston conservative activist Steve Hotze and a handful of GOP candidates — appealed the decision to the U.S. Court of Appeals for the 5th Circuit. Early Tuesday morning, the appeals court denied the motion.

Hotze and the candidates had sued the county last week over its drive-through voting stations, in which voters use a machine to vote from inside their cars. The new voting method was instituted for voters fearful of exposing themselves to the coronavirus at polling places. The plaintiffs argued that the Texas legislature never explicitly allowed for it.

In his ruling issued from the bench Monday, Hanen said he determined they did not have standing to challenge the validity of the ballots, though if they had, he probably would have halted the voting method on Election Day.

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Unlike curbside voting, which is available only to voters with disabilities, drive-through voting is an option for any Harris County voter who goes to one of 10 sites across the county. Underneath the cover of a tent, 10 to 30 voters at a time are handed a machine through their car window.

Harris County Clerk Chris Hollins, a Democrat, responded to the ruling by announcing late Monday that, to protect voters, all but one drive-through voting sites will be closed on Tuesday.

“The purpose of this litigation from the beginning has been to confuse voters, to spread misinformation,” Hollins said outside the federal courthouse in Houston after the Monday afternoon ruling. “Their motive is not to win. Their motive is to delay. Their motive is to confuse. Their motive is ultimately to reduce the odds that folks are going to exercise their constitutional right to vote.”

Hotze, in turn, claimed that the centers were disproportionately located in “Democrat precincts.”

“Everybody’s vote ought to count,” Hotze told reporters. “I just don’t want people stealing the votes.”

Hanen’s decision follows a string of Republican attempts to limit the expansion of voting options in Texas, particularly in Democratic-led Harris County, where local officials have spent tens of millions of dollars trying to making voting easier during the coronavirus pandemic.

The drive-through voting centers have proved popular, accounting for 127,000 ballots so far. Those ballots could make a difference in the traditionally Republican state, where polls show a close race between President Trump and Democratic nominee Joe Biden.

County officials, along with Democrats and voting rights groups, contended that both parties have blessed drive-through voting and that throwing out those ballots now would be unconstitutional.

They were joined by a number of prominent Republicans. In a brief submitted Sunday night, Republican lawyer Ben Ginsberg, who represented the Bush-Cheney campaign during the 2000 recount in Florida and whose former law firm has represented the Trump 2020 campaign, urged Hanen not to invalidate the drive-through ballots. He was joined by Joe Straus, the former longtime Republican Texas House speaker.

In a remarkable rebuke of members of their own party, an attorney for Ginsberg and Straus in their brief accused the plaintiffs in the lawsuit of a “last-minute attempt to disenfranchise thousands of voters.”

“It is hard to imagine a scenario more damaging to the public’s confidence in a fair election than a last-minute order from a federal judge throwing out the votes of over 100,000 voters for no reason other than that those voters relied on a state election official’s reasonable interpretation of a state election statute,” Straus and Ginsberg’s attorney wrote.

The Lincoln Project, an anti-Trump PAC formed by a handful of well-known Republican strategists including Steve Schmidt, also filed a brief Sunday night opposing the plaintiff’s position. The group argued that Republican voters, who tend to be older and more susceptible to the deadly virus, would also be disenfranchised if drive-through voting weren’t allowed.

Had the votes cast at drive-through sites been invalidated, Harris County officials said they planned to contact to as many voters as possible to encourage them to vote on Election Day.

Sean Tellez, who voted at a drive-through site set up at the Toyota Center on Oct. 16, said he was prepared to vote again if need be.

Voting in his car “was quicker and a more quiet process where I wasn’t bombarded by signs and people outside of a polling location,” said Tellez, an assistant principal at a nearby high school, who added that many of his colleagues also voted at the same location. “A lot of us were on edge” after hearing about the lawsuit, he said.

In recent months, Republicans in Texas have launched numerous challenges to voting access. They successfully persuaded the state Supreme Court to limit expansion of mail-in voting, and they beat back attempts by Harris County officials to send a mail-in-ballot application to every registered voter in the county.

Other bids by Republicans to fight the expansion of curbside voting in Harris County, and to oppose an order from Gov. Greg Abbott (R) to extend the number of early voting days, were not successful.

Martin reported from Houston.