AUSTIN, Texas – A federal judge said Monday that he will not invalidate almost 127,000 votes cast in drive-thru lanes in Texas' Harris County, ruling that Republican candidates and a GOP activist waited too long to challenge the legality of the innovation in voting.
In dismissing the lawsuit, U.S. District Judge Andrew Hanen also said the Republicans lacked the standing to sue because their complaint — that Harris County was breaking the law — alleged a general harm that did not particularly affect them.
But even if standing were not an issue, Hanen said he would not have tossed out drive-thru votes because the plaintiffs waited too long to challenge the legality of the innovation in voting.
“People have been voting, and to file it late last week, I find it not to be timely,” Hanen said, adding that Harris County had announced plans for drive-thru voting months earlier.
Invalidating votes also would have been too harsh a penalty for voters who followed directions and assurances from county leaders, he said.
“Over 120,000 people have already voted, with the vast, vast, vast majority of them (relying) on their public officials telling them this is legal,” said Hanen, who issued his ruling from the bench because Election Day was looming.
Within hours of the ruling, the lawyer for the Republicans notified Hanen that the 5th U.S. Circuit Court of Appeals in New Orleans will be asked to overturn his ruling.
Harris County includes Houston, and it is the largest county in Texas by population.
The judge also disagreed with arguments that drive-thru votes were illegal, noting that the same “terms and conditions” applied whether a voting machine was used in a voting booth or from the driver’s seat while inside a tent. All voters had to show photo ID, sign a voting roster and follow other election rules, he said.
Hanen also said state law allowed for the use of temporary structures during early voting — including the tents drivers pulled in to so they could cast an early ballot at 10 Harris County drive-thru voting locations.
However, the judge said he would block drive-thru voting from being offered on Tuesday because state law requires that polling be conducted inside buildings on Election Day.
And, noting the almost inevitable appeal to come, Hanen ordered Harris County to keep all records and memory cards be “just in case” the 5th U.S. Circuit Court of Appeals disagrees with his ruling after an expected appeal.
Follow reporter Chuck Lindell on Twitter: @chucklindell
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This article originally appeared on Austin American-Statesman: Harris County, Texas, drive-thru votes will count, federal judge says