Elections 2020JudicialLocal NewsNew Lawsuit Looks to Disqualify Harris County Ballots Cast Via Drive-Thru

A new lawsuit takes on Harris County’s drive-thru voting stations and seeks to set aside ballots cast through what they say is an illegal procedure.
October 29, 2020
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Houston-area Republicans have filed a new lawsuit with the Supreme Court of Texas (SCOTX) seeking to void ballots cast via the county’s new drive-thru voting stations.

Harris County interim Clerk Chris Hollins introduced the drive-thru voting stations as part of his S.A.F.E. Elections plan, portions of which have already been struck down by the SCOTX and the U.S. Fifth Circuit Court of Appeals.

Hollins asserts that drive-thru voting stations are simply additional polling locations, but Texas Attorney General Ken Paxton warned last month that the stations constitute an illegal expansion of curbside voting.

One of the four plaintiffs is state Rep. Steve Toth (R-The Woodlands). While Toth’s district lies in Montgomery County, he explained to The Texan that he joined the suit as a member of a co-equal body of government responsible for making laws that govern elections.

“These changes are not supposed to be done by the courts, not supposed to be done by the secretary of state, not supposed to be done by local governance,” said Toth. “The legislature is supposed to decide legal voting practices.”

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Texas election law states that “[e]ach polling place shall be located inside a building.” Curbside voting in the state is permitted on a limited basis for voters “physically unable to enter the polling place with personal assistance or likelihood of injuring the voter’s health, on the voter’s request, an election officer shall deliver a ballot to the voter at the polling place entrance or curb.”

In previous elections, election workers would ask voters presenting for curbside voting if they were disabled or for other reasons unable to enter the polling location, but under Hollins’ guidance, Harris County elections officials are bypassing this step. 

Toth noted that in 2019 the state legislature had attempted to expand curbside voting to allow for parents with young children in a car to participate, but the bill only passed in the House. 

Poll watchers in Harris County have also reported that drive-thru voters often arrive in vehicles with multiple occupants, privacy is not afforded to the actual voter, and in some cases other vehicle passengers are coaching voters and “live streaming” the process to social media platforms.

Last week the SCOTX denied a request from the Republican Party of Texas (RPT) to halt Harris County’s introduction of drive-thru voting, saying the RPT had waited too long to file the suit, but also that the party did not have standing to challenge the law. Justice John Devine published a vigorous dissent lamenting that thousands of ballots would continue to be cast in what he said was “likely an unauthorized voting procedure.”

Toth expressed frustration with agencies approving Hollins’ drive-thru vote stations. 

“What really makes me angry is that the secretary of state legitimizes this bad behavior by allowing them to do this illegal activity.”

“This has been going on since [COVID-19], whether it’s a governor or a city or county official that feels they can just go in and impose whatever they deem appropriate,” said Toth. “This is a terrible precedent and the governor needs to step up and stop it.”

In addition to Toth, plaintiffs include conservative activist Steven Hotze, as well as two candidates: Wendell Champion, who is challenging Democratic Rep. Sheila Jackson Lee for Texas’ 18th Congressional District, and Sharon Hemphill who is the Republican nominee for judge of the 80th District Court in Harris County.

The lawsuit argues that Hollins is violating Texas Election Code and breaching his ministerial duties by not verifying that each voter using the drive-thru stations is eligible for that accommodation. 

Plaintiffs also assert that by not adhering to the election laws determined by the state legislature, Hollins is violating the U.S. Constitution. 

In addition to these issues, plaintiffs allege that nine of the 10 drive-thru voting locations are placed in Democrat strongholds.  

Unlike the previous lawsuits seeking to halt the use of drive-thru voting, plaintiffs are asking the court to order that memory cards from the 10 drive-thru locations be set aside at least until after the case is heard.  The memory cards, known as Mobile Ballot Boxes, are scheduled to be processed on Saturday, October 31 unless SCOTX orders them held. Plaintiffs say they contain as many as 100,000 ballots.

Although the early voting period ends Friday, the SCOTX has given parties until Friday afternoon to submit arguments. 

Harris County’s drive-thru voting locations are also mentioned in a recent sworn affidavit submitted to the district attorney by a certified poll watcher. Raymond Stewart, a former police officer, states that he observed a stack of Texas driver’s licenses on a table inside the Northeast Multi-Services Center polling site. 

Stewart testifies that election workers coming in from the drive-thru polling stations would sometimes sort through the stack of licenses, choose one, scan it for voter check-in, and obtain a ticket to bring out to the drive-thru voter.  

In another innovation, today six Harris County polling locations will be open 24 hours, and all other early voting locations will have expanded hours until 10 pm. Hollins says this will make it easier for those with non-traditional work schedules to cast ballots.

The unprecedented procedures introduced in the state’s largest county are also mentioned in the terms of a private grant of $9.6 million to the county from the Mark Zuckerberg-funded Center for Technology and Civic Life.  

Last week Paxton also warned local elections officials that “making up” new voting rules and procedures “is unlawful and could result in legal liability.”

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Holly Hansen

Holly Hansen

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.