Texas Republican effort to toss 127,000 drive-thru ballots rejected

Jane C. Timm and Garrett Haake

A federal court again refused Texas Republicans' efforts to block drive-thru voting to continue in Harris County, Texas, following a last-minute effort by state Republicans to stop the popular pandemic voting system.

Texas Republicans had appealed a court order allowing drive-thru voting to continue in Harris County, Texas, with a late filing Monday evening.

Earlier in the day, a federal judge ruled against Texas Republicans who sued to toss out more than 127,000 ballots cast in drive-thru voting booths in Harris County, declaring that the plaintiffs didn't have standing to sue.

Judge Andrew Hanen, nominated to the court by President George W. Bush, wrote in an order that Texas Election Code permits drive-thru early voting, but said that the law does not authorize movable structures — like the tents used for drive-thru voting — as polling places for Election Day.

“If the plaintiffs had standing, the Court would have found that the continuation of drive-thru voting on Election Day violates the Texas Election Code,” Hanen wrote.

State Republicans appealed the ruling to the Fifth Circuit Court of Appeals late Monday, amending their petition to ask solely for drive-thru voting to be blocked on Election Day while leaving the already-cast ballots alone. The court denied the appeal just before midnight.

Before the court's decision, Harris County Clerk Chris Hollins said that he would close nine out of the 10 drive-thru locations Tuesday so that votes might not later get thrown out for not being cast in “buildings.”

The Toyota Center site will remain a drive-thru option as it "fits the Judge's definition of a 'building': it is 'a structure with walls and a roof' and 'a permanent structure.' It is thus unquestionably a suitable location for Election Day voting," Hollins tweeted.

Harris County, which includes Houston and is the third-most populous county in the country, set up drive-thru voting booths to accommodate voters during the pandemic, but a group of state Republicans sued the county clerk claiming that the process violated the Legislature’s authority over elections and Texans' equal protection rights. The Texas Supreme Court refused multiple lawsuits on this issue last week.

More than 127,000 Texans — nearly 9 percent of the ballots cast in Harris County — came from the drive-thru voting booths, the county said on Saturday. A Houston Chronicle analysis revealed that the vast majority of these ballots came from precincts won by Hillary Clinton in 2016 and Democratic U.S. Senate candidate Beto O’Rourke in 2018.

State law permits curbside voting for those who are sick, disabled or likely to have their health injured by voting inside a polling location, but the plaintiffs argued that "a voter’s general fear or lack of immunity from COVID-19 is not a 'disability' as defined by the Election Code."

The county argued that the voting method had been approved by the secretary of state and the plans had been public for months but were challenged only recently.

“Drive-Thru Voting is a safe, secure and convenient way to vote. Texas Election Code allows it, the Secretary of State approved it, and 127,000 voters from all walks of life have used it,” Hollins, the county clerk, said in a statement this weekend.

Harris County has trended blue in recent years. After President Barack Obama won the county by 971 votes in 2012, Hillary Clinton won it by more than 160,000 votes in 2016.

Democrats and national voting rights advocates quickly moved to defend the ballots this weekend, but there’s also been some high profile Republican opposition to the suit.

Longtime GOP attorney Ben Ginsberg, who recently retired, and former Texas House Speaker Joe Straus filed an amicus brief arguing that the same law that Ginsberg — and newly confirmed Supreme Court Judge Amy Coney Barrett — used in the Bush v. Gore 2000 recount battle should protect the Texas voters here.

"Not so long ago, it was a core tenet of the Republican Party that the vote of every qualified voter should be counted, even if, at times, it did not work in the Party's favor," they wrote.