During a federal court hearing yesterday in a lawsuit brought by Republicans, U.S. District Court Judge Andrew S. Hanen expressed reluctance to toss out nearly 127,000 ballots already cast at drive-thru locations during early voting, but acknowledged possible legal issues with the polling innovations.
The suit, brought by conservative activist 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, argues that Texas Election code does not provide for drive-thru voting. Thus in establishing the outside polling, plaintiffs assert Hollins has unconstitutionally attempted to rewrite election law with disregard for the legislative branch’s authority.
Hanen ultimately ruled that plaintiffs did not have standing to bring the case, but said otherwise he would have halted drive-thru voting on Election Day. He instead ordered the county to keep memory cards containing drive-thru ballots separate in case a higher court chose to intervene.
Plaintiffs may now file a new appeal asking for a full hearing before the entire 5th Circuit Court of 17 judges rather than only the three-judge panel. Hotze explained to The Texan that while the county has closed the drive-thru sites, there are still concerning precedents in the case regarding jurisdiction and standing.
“The judge writes that the only party with standing to bring this case is the Texas Legislature, but if this precedent stands no one will be able to bring a challenge outside of the entirety of a legislative body that only meets every other year. The real issue now is who has the right or standing to bring a lawsuit over violations of the election code; we think any citizen or candidate ought to have that right.”
Hotze also noted that Judge Hanen had acknowledged that the drive-thru sites were not legal for Election Day, while side-stepping the issue of ballots previously cast in early voting.
In announcing the closure of nine drive-thru polling sites, Hollins said he could not “in good faith encourage voters to cast votes in tents that puts their votes at risk.”
In addition to the disputed legality, some election officials have also expressed concern over the technology used to facilitate drive-thru voting.
Typically, eSlate machines on which voters cast ballots remain connected to a “Judges Booth Controller” (JBC) which maintains counts and serves as backup documentation. At drive-thru stations, the eSlate devices are disconnected from the JBC and related memory cards. Counts from the drive-thru eSlates reportedly must be taken to the election technology center and uploaded there, where the upload and tally process may take days.
Since early voting began last month, several observers noted discrepancies in voter tallies. The Secretary of State’s Office has been in communication with the county in an attempt to clarify correct counts, and the county has explained the discrepancies as being due to reporting lags that will be reconciled when numbers are official.
Yesterday an attorney working for the Republican Party of Texas sent a letter to Harris County Attorney Douglas Ray describing an “unprecedented departure from historical processes…exacerbated by the fact there was absolutely no oversight of this procedure…” The letter requests remedies including preservation and quarantine of data from the drive-thru locations, a transparent extraction of data, and written explanations and documentation.
According to state Sen. Paul Bettencourt (R-Houston) multiple poll watchers are reporting a 1,700 differential in reports for drive-thru ballots.
“Clearly they’ve never had a stable count to begin with,” Bettencourt told The Texan. “There are way too many changes on the fly being done by this outfit.”
Harris County has also quietly reinstated mail-ballot drop off at the county’s annexes. Last month multiple courts ordered Hollins to stop accepting drop-off of mail ballots at more than one location, but the clerk is interpreting those orders to only apply during early voting, not on election day.
Several races in the Harris County area could come down to narrow margins, and observers are closely watching the contest for Texas’ Congressional District 7 between freshman Democrat Rep. Lizzie Fletcher and Republican Wesley Hunt, as well as several hotly contested state house district and county constables races. Should any of those be decided by a number within potential vote count discrepancies, candidates coming up short may have grounds to file a lawsuit against Hollins and the county.
The only drive-thru voting available on election day in Harris County will be at the Toyota Center in Houston. Registered voters may cast ballots in person at any of the more than 800 polling sites in the county.
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Holly Hansen is a regional reporter for The Texan 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.