Federal judge rejects bid to throw out drive-thru votes in Texas

AUSTIN, Texas — A federal judge in Houston said Monday he would not invalidate 127,000 Harris County votes cast through drive-thru lanes in a crucial decision less than 24 hours before Election Day.

U.S. District Judge Andrew Hanen, an appointee of George W. Bush, rejected the bid by GOP candidates, lawmakers and activists to throw out the votes saying they did not have standing to sue and could not point to a specific injury they incurred. Even if they had standing, Hanan said he would not have blocked the votes because the lawsuit was not filed in a timely manner.

Though Hanen issued his ruling Monday around 2:30 p.m. CST, he said the plaintiffs still have the option to appeal the decision to the 5th U.S. Circuit Court of Appeals. The plaintiffs are almost certain to appeal the case — they have vowed to take it to the U.S. Supreme Court — and Hanen ordered Harris County to store all of the votes cast through its drive-thru voting lanes separately in case the appeals court intervenes.

Texas Democrats cheered Hanen’s decision and said Republicans were trying to disenfranchise voters.

“This should have never been an issue in the first place,” Gilberto Hinojosa, chairman of the Texas Democratic Party, said in a statement. “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.”

“Texas Republicans sought to threaten Texans’ right to vote and they lost, but this election is not over,” he added. “We must send them a message and vote them out.”

Though the ruling is a victory for Harris County and the voters who have already cast their votes through drive-thru lanes, Hanen also issued a note of caution. The plaintiffs in the case did not have standing to sue, he said, but if they had he would have blocked drive-thru voting on Election Day because the tents that were used for the process do not meet the requirements for a polling place under state law.

Hanen also said he would not use drive-thru voting on Election Day.

The lawsuit filed by GOP candidates, lawmakers and activists contended that votes cast through Harris County drive-thru voting lanes violated state law and should be thrown out because they were not allowed under the state election code that the Legislature approves.

Harris County Clerk Chris Hollins, a Democrat, said the practice was legal and had received bipartisan support from its commissioners court and had been vetted by the Secretary of State, Texas’ highest elections administrator. The practice had also been used during the July primary runoff elections in response to the COVID19 pandemic.

Hanen asked plaintiffs why they waited so long to file their case, noting that the practice had been used during the July runoffs. The plaintiffs include state GOP Rep. Steve Toth of The Woodlands; Sharon Hemphill a Republican running for district judge in Harris County; GOP congressional candidate Wendell Champion; and Republican activist Steven Hotze.

The plaintiffs had first filed suit in state court to stop Harris County from accepting votes cast in its drive-thru lanes, arguing that drive-thru voting should be reserved for voters who were disabled and met other requirements outlined by the election code.

But the all-Republican Texas Supreme Court rejected that lawsuit Oct. 22. On Wednesday, the plaintiffs filed suit with the court again. This time, they asked to throw out the 127,000 Harris county votes that had been cast through the drive-thru lanes.

On Sunday, the Texas Supreme Court rejected the plaintiffs again.