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Federal Judge In Houston Denies Republican-Led Case To Throw Out 127,000 Drive-Thru Ballots

Protestors outside the Bob Casey United States Courthouse in downtown Houston, on Nov. 2, 2020.
Jen Rice | Houston Public Media
Protestors outside the Bob Casey United States Courthouse in downtown Houston, on Nov. 2, 2020.

Updated 2:48 p.m. CT

A federal judge in Houston dismissed a lawsuit challenging the legality of drive-thru voting, which aimed to invalidate the 127,000 votes cast through Harris County’s 10 drive-thru voting locations.

Ruling from the bench, U.S. Southern District Judge Andrew Hanen, an appointee of George W. Bush, said the plaintiffs did not have standing to sue, nor did he believe their lawsuit timely.

Hanen also said that even if the method of voting was not legal, the votes that were already cast are valid. And he was skeptical of an argument made by litigious Texas Republican Steve Hotze that drive-thru voting was less secure than in-person voting.

"For lack of a nicer way of saying it, I ain't buying that,” Hanen said. “They're in a booth, they're under the same terms and conditions. If they violate those conditions, if I was ruling, I would rule that you would be free to pursue those just like you'd be free to pursue any other voting violations."

With the dismissal, Harris County’s drive-thru votes will be counted, at least for now: It was not immediately clear whether the plaintiffs in the case would appeal the court’s decision.

The plaintiffs, led by Hotze, had argued that drive-thru voting is the same thing as curbside voting, and therefore is only eligible to voters with disabilities.

Attorneys defending Harris County Clerk Chris Hollins argued that the drive-thru voting process is different, requiring the use of separate structures, and that the Texas Secretary of State and Harris County Commissioner’s Court already approved this plan several months ago. Hotze waited until the night before early voting began to seek legal action, and just four days before Election Day to file for the federal court injunction.

And if the ballots are tossed, there would be no way to properly inform all 127,000 voters, who would then lose their constitutional right to vote, the defense argued.

The county also pointed to a legal principle known as the Purcell Doctrine, a U.S. Supreme Court doctrine advising federal courts not to interfere with election law during an election.

Judge Hanen was skeptical of the Purcell argument, saying the Republican challenge was not seeking to change law, but to enforce it by their interpretation.

The Texas Supreme Court has already dismissed three different requests by Texas Republicans to invalidate the drive-thru votes, but the legal challenges may have caused people to avoid voting that way, according to county election officials. Though voter turnout has reached historic levels in Harris County, some fear these lawsuits have suppressed the vote.

Monday’s hearing was riddled with technical difficulties, as reporters and other public observers on a conference call awaiting the hearing were suddenly kicked off after 15 minutes, before the hearing began. It wasn’t until about 30 minutes after the hearing began that one reporter was allowed into the hearing.

The conference call line was eventually restored, though people on the line struggled to hear the arguments made by all parties involved.

Several Harris County voters have filed declarations in defense of drive-thru voting.

In court documents, 37-year-old Malkia Hutchinson-Arvizu said the reason she voted drive-thru was to protect her family’s health and safety. She has high blood pressure and is borderline diabetic, two COVID-19 risk factors, according to a brief filed with the court.

“One of the reasons my husband and I voted drive-thru is our desire to limit exposure to people, due to the risks posed by COVID-19,” Hutchinson-Arvizu said. “In addition to my own risk factors, my stepdaughter has asthma, and my husband also has risk factors for COVID-19.”

Protestors marched outside the court early Monday morning, holding signs and chanting “count every vote.”

One of the people outside the courthouse, Corisha Rogers with the youth voting group Texas Rising, said she and her brother had voted early using the county’s drive-thru system. It was her brother’s first time at the polls, and she worried about disenfranchisement hurting his motivation for voting in the future.

“His vote should count, my vote should count, everyone, these 120,000-plus people should be able to have their vote count," Rogers said. “Voter suppression is real, it's just in a different form. Now it's not being very obvious. It's just about taking things to court.

The ACLU, NAACP, Lincoln Project and other groups have intervened in the case, echoing the argument that the suit is an attempt to suppress the vote. Even some Texas Republicans, including state Rep. Sarah Davis and former Texas House Speaker Joe Straus, have spoken out.

Drive-thru voting was just one of the efforts to expand ballot access in Harris County. The county saw record turnout this year during the expanded early voting period, surpassing the total number of votes cast in 2016, the last time the county set a record.

It was one of the conveniences that voter Sarah Jones took advantage of. But when she cast her ballot via drive-thru voting, she said she never expected it to be challenged.

She was part of the courthouse protest Monday, joined by her husband and four children.

“My kids need to see this,” Jones said. “My kids need to see that I'll crawl over broken glass to make sure my vote counts.”

This story was produced by Houston Public Media.

Elizabeth Trovall
Jen Rice