WASHINGTON — A federal judge in Texas on Monday rejected the latest legal challenge to nearly 127,000 ballots cast at drive-thru voting sites in Harris County, the most populous county in the state.
US District Judge Andrew Hanen announced his decision from the bench immediately after hearing arguments on Monday, saying he thought there was a good chance the losing side would race to the US Court of Appeals for the 5th Circuit to challenge his decision. Barring any action from the appeals court, his order means Harris County can not only count the ballots cast during early voting, but also operate drive-thru voting locations on Election Day.
Hanen warned, however, that if the 5th Circuit revived the case in the coming hours, he was prepared to potentially block drive-thru voting tomorrow, while leaving the votes that have already been cast intact. A lawyer for the plaintiffs did not immediately return a request for comment.
The judge tossed the case Monday after finding that the challengers — a group that included a Republican congressional candidate and registered Republican voters — lacked standing to sue Harris County over how officials were handling the election. He indicated that it was a close call for one of the plaintiffs, the congressional candidate, but that in the end, the challengers failed to show a specific enough harm to their interests.
“I’m not necessarily happy with that finding,” said Hanen, a conservative-leaning member of the court, explaining that he thought standing was a closer call for Wendell Champion, the congressional candidate who joined the lawsuit.
Even if the 5th Circuit reversed Hanen and found the plaintiffs had standing to bring the case, the judge said he would still deny a request to invalidate ballots cast at drive-thru sites during the state’s early voting period, finding the sites complied with state election law for early voting. But he said the election code had different rules about what qualified as a polling location on Election Day, and he didn’t think the drive-through tents that Harris County set up would satisfy those requirements.
Hanen ordered the county to preserve voting records from the drive-thru voting locations just in case there was more litigation over those ballots in the future.
The hearing took place one day after the Texas Supreme Court rejected an effort by the same Texas Republicans to invalidate the nearly 127,000 votes cast at drive-thru locations throughout the county. The state court didn’t release a written opinion explaining its decision to leave the votes intact but had rejected another challenge to drive-thru voting in Harris County earlier this month.
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There were 10 drive-thru voting sites during the early voting period in Harris County, which covers Houston, and each was next to a standard indoor polling location, according to the county's court papers. Early voting began on Oct. 13, and by the time it ended on Oct. 30, lawyers for county clerk Chris Hollins reported to the court that 126,912 people had cast ballots at a drive-thru site.
The county had argued that state law explicitly allowed polling sites to be located "in a movable structure," and that the metal-framed tents that the county was using to accommodate voters in their cars to vote satisfied the law's requirements. Jared Woodfill, the lawyer for the challengers, argued on Monday that Harris County clerk Chris Hollins had usurped the power of Texas lawmakers in setting up the drive-thru sites — if the state legislature wanted to allow drive-thru voting, lawmakers could have passed a law and laid out statewide processes for it.
Benjamin Chou, the director of innovation for the Harris County clerk’s office, told BuzzFeed News this week that they were “surprised” that Republicans had sued over the drive-thru voting sites because the party had been involved in their design and conception. Chou added that the sites had been particularly helpful for parents with young children, who could vote while their kids were buckled up in the backseat, as well as for older voters and people with disabilities who couldn’t walk well and still wanted to vote in person.
Over the weekend in the hours before Monday’s hearing, lawyers for Texas voters who had used the drive-thru sites to vote as well as for national Democratic party organizations and US Senate candidate MJ Hegar, who is running against Republican Sen. John Cornyn, submitted briefs supporting Harris County and opposing the invalidation of ballots.
"Plaintiffs ask this Court to throw Texas’s election into chaos by invalidating the votes of more than 100,000 eligible Texas voters who cast their ballots at drive-thru voting locations at the invitation of county officials and in reliance on the Texas Supreme Court’s decision to allow drive-thru voting to proceed. Plaintiffs’ request is wholly unreasonable and should be rejected outright," lawyers for Hegar and the Democratic groups wrote in a brief filed on Saturday.
During Monday’s hearing, Hanen expressed concern about the fact that Harris County was preparing to operate the drive-thru voting locations on Election Day, and questioned whether it was fair to allow that to happen if those votes could later be invalidated. A lawyer for the county argued against changing the procedures now, saying the county had invested significant resources in public outreach and education.
Late Monday night, the U.S. Court of Appeals for the 5th Circuit denied a request to block Harris County, Texas, from offering drive-through voting. But the county still decided to only open one site to avoid any uncertainty. County clerk Chris Hollins said in a tweet that while his legal team and multiple election law experts “reiterated the legality of drive-thru voting” his job was to protect the right to vote and he could not “in good faith encourage voters to cast their votes in tents if that puts their votes at risk.”
Molly Hensley-Clancy and Katie J.M. Baker contributed to this report.