U.S. District Judge Andrew S. Hanen declined to rule in the case since he said Republican plaintiffs did not have standing but ordered Harris County to keep memory cards containing ballots cast by drive-thru voters separate in case the higher court intervenes.
Hanen expressed skepticism over tossing out ballots already cast, but indicated that if he had found plaintiffs had standing, he would have ordered a halt to drive-thru voting for Tuesday’s general election.
On Sunday the Supreme Court of Texas (SCOTX) denied a similar request to toss out the ballots, also filed by the same plaintiffs: conservative activist Dr. Steven Hotze, state Rep. Steve Toth (R-The Woodlands), and Republican candidates Wendell Champion for the 18th Congressional District and Sharon Hemphill for the 80th District Court.
As with the requests previously rejected by SCOTX, plaintiffs argued that the county’s 10 drive-thru polling locations constituted an illegal expansion of curbside voting or other voting procedures not approved by the Texas Legislature. Further, since the U.S. Constitution grants control of the “manner” of elections to the states, plaintiffs also alleged that the drive-thru stations are unconstitutional.
Jared Woodfill, attorney for the plaintiffs, also noted that the Texas Legislature had previously rejected the expansion of curbside voting, and had not established any expected ballot integrity or privacy measures such as phone usage or limits to the number of people in a car that might be expected if the practice was legal.
The lawsuit asked Judge Hanen to order that the county secure all memory cards from the 10 drive-thru voting locations and reject any votes cast in violation of the Texas Election Code.
In his questioning, Hanen, appointed to the court by President George W. Bush, asked why he was hearing a suit after two weeks of early voting and told plaintiffs they had an uphill battle before them.
The federal suit, filed against interim Harris County Clerk Chris Hollins, has also drawn a number of intervenors in opposition to tossing out the nearly 127,000 drive-thru ballots, including the campaign of MJ Hegar, the Democratic nominee for the U.S. Senate.
Other intervenors include the League of Women Voters of Texas, Common Cause Texas, the Texas Coalition of Black Democrats, and the Texas State Conference of NAACP branches.
Groups filing amicus briefs on behalf of defendants include the Lincoln Project, a group of former Republicans who oppose President Trump and other GOP candidates, former Texas House Speaker Joe Straus, and the Libertarian Party of Texas.
An amicus brief from the Lincoln Project argued that a significant portion of the drive-thru ballots cast could be from older Republican voters who are concerned about exposure to COVID-19. According to their extrapolation of the data, they estimate that more than 50,000 of drive-thru voters are Republican.
Plaintiffs, however, note that nine of the 10 drive-thru polling sites are located in Democrat strongholds, and suggest the operation is designed to benefit Democratic candidates, and that Harris County’s drive-thru votes would dilute the votes of other counties that followed state law.
Analysis from the Houston Chronicle has also indicated most of the drive-thru ballots were cast from jurisdictions that were handily won by Hillary Clinton in 2016 and Beto O’Rourke in 2018.
Hollins, appointed interim clerk after the sudden resignation of Diane Trautman earlier this year, included drive-thru voting as part of his S.A.F.E. Election Plan. Harris County Commissioners Court has approved the spending of more than $27 million for the 2020 elections, and Hollins has also obtained another $9.6 million in private grant funding from the Center for Technology and Civic Life.
The county used drive-thru locations during the primary run-off elections last July, and the Texas Secretary of State’s Office approved the use of the unique process earlier this year.
Texas Attorney General Ken Paxton, however, had warned Hollins and other elections officials that drive-thru polling was not legal under Texas Election Code.
Opponents of the drive-thru stations have also voiced concern about additional opportunities for voter fraud. In a sworn affidavit filed with the district attorney, certified poll watcher and former police officer Raymond Stewart states he saw drive-thru election workers sorting through a stack of Texas drivers licenses on a table and Stewart provided photographs of the alleged licenses.
After the 2020 general elections, Harris County will shift administration of the elections away from the elected county clerk and voter registrar, and instead use an appointed elections administrator. Last week, the county’s election commission selected Isabel Longoria to fill the post. Longoria formerly worked for state Sen. Sylvia Garcia (D-Houston) and state Rep. Jessica Farrar (D-Houston), and launched an unsuccessful bid for the Houston City Council in 2019.
Two members of the commission who voted against Longoria included Harris County Republican Party Chairman Keith Nielsen and Tax Assessor-Collector and Voter Registrar Ann Harris Bennett (D). Bennett, elected to office in 2016, opposed moving elections to an administrator who would not be accountable to voters.
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Holly Hansen is a freelance writer living in Harris County. Her former column, “All In Perspective” ran in The Georgetown Advocate, Jarrell Star Ledger, and The Hill Country News, and she has contributed to a variety of Texas digital media outlets. She graduated summa cum laude from the University of Central Florida with a degree in History, and in addition to writing about politics and policy, also writes about faith and culture.