Texas Court Rejects Bid to Toss 127,000 Harris County Votes, But Fight Isn’t Over

AUSTIN, Texas — The Texas Supreme Court on Sunday rejected, without comment, a bid by three Republican candidates and a GOP activist to toss out almost 127,000 votes cast from drive-thru lanes in the emerging Democratic stronghold of Harris County.

The votes, however, are not yet safe to count as part of the early voting tally Tuesday.

A federal judge will hold an emergency hearing Monday morning — less than 21 hours before polls open on Election Day — to hear arguments on a similar challenge filed by the same group of Republicans, who say that state law prohibits drive-thru voting, so every vote cast from cars during the early voting period should be tossed out as illegal.

At the same hearing, U.S. District Judge Andrew Hanen will weigh a request by Democratic organizations and the party’s U.S. Senate candidate, MJ Hegar, to join the case in defense of drive-thru voting — and the 126,911 votes cast that way.

The Democrats urged Hanen to reject the GOP lawsuit, filed two weeks after early voting had begun and four months after Harris County announced plans for drive-thru voting, arguing that the challenge was filed too late and that stepping in now would create mass confusion and disenfranchise voters whose ballots were legally cast.

“Federal courts should tread carefully before altering a state’s elections procedures in the midst of an election,” they told Hanen, appointed to the bench by Republican President George W. Bush in 2002.

The state and federal court challenges were brought by state Rep. Steve Toth, R- The Woodlands, who is running for re-election; Sharon Hemphill, a GOP candidate for district judge in Harris County; GOP congressional candidate Wendell Champion; and prominent Republican activist Steven Hotze.

The Republicans argue that drive-thru voting is illegal because it was not authorized by the Texas Legislature, damaging the credibility of election results and diluting the impact of votes cast legally.

“Allowing an illegal voting scheme that invites corruption and fraud is tantamount to voter suppression because legal votes will be nullified by illegal votes,” they told Hanen.

The Republicans turned first to the Texas Supreme Court, arguing that drive-thru voting should be shut down as an illegal expansion of curbside voting, which is reserved for voters who have an illness or disability that could put them at risk if forced to enter a polling place.

The all-Republican court rejected that petition on Oct. 22, also without comment, although Justice John Devine filed a dissenting opinion that criticized drive-thru voting as an apparent violation of state election law.

Days later, the four Republicans were back, this time asking the state’s highest civil court to throw out ballots cast from cars.

While waiting for the Texas court to act, the four also filed a federal lawsuit last week arguing that Harris County is in violation of the U.S. Constitution’s elections clause, which requires state legislatures to set the time, place and manner of elections for the U.S. House and Senate.

The federal petition also included another claim that was not part of the state Supreme Court petition — that nine of the 10 drive-thru polling sites were placed in heavily Democratic areas in violation of the Constitution’s equal protection clause.

Chris Hollins, the Democratic clerk for Harris County, has argued in court briefs that drive-thru voting is nothing like curbside voting, in which a poll worker brings an Americans with Disabilities Act-compliant voting machine to a vehicle after getting a request for help.

Drive-thru voting follows the same procedures as in-person voting at a typical polling station, except that it is done from inside a vehicle after pulling into a tent, Hollins argued, noting that voters still must present photo ID and sign a voting roster before being handed a sanitized voting machine.

The office of Texas Secretary of State Ruth Hughs, the state’s top elections officer, approved drive-thru voting before it was adopted by Harris County, Hollins said.

Also Sunday, state Sen. Carol Alvarado, D- Houston, urged voters who used a drive-in polling place to “protect your vote” by taking advantage of free legal help to intervene in the federal lawsuit.

And Joe Straus, the former Republican speaker of the Texas House, criticized the lawsuits by members of his party as “patently wrong.”

“All of us who believe in the core ideals of this country should want more votes counted and more voices heard,” he said via Twitter. “The Republican Party needs to return to a place where we win with ideas and persuasion rather than trying to intimidate or silence our fellow citizens.”

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(c)2020 Austin American-Statesman, Texas

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