Nearly 127,000 ballots cast inside vehicles during early voting in Harris County will not be kicked to the curb – at least not yet.
U.S. District Judge Andrew Hanen on Monday dismissed a lawsuit filed by four Republicans that sought to stop drive-through voting in Harris County and invalidate 126,912 votes that were cast in that manner during early voting from Oct. 13-30. Hanen said the plaintiffs – Republican activist Steven Hotze, State Rep. Steve Toth, U.S. House of Representatives candidate Wendell Champion and state district judge candidate Sharon Hemphill – lacked standing and filed their lawsuit too late because the election was well underway when it was filed this past weekend.
The plaintiffs subsequently appealed to the 5th Circuit Court of Appeals, which rejected the lawsuit late Monday night.
“Today’s decision validates what we have been saying all along: Drive thru voting is safe, secure, legal and a common sense way for voters to cast their ballots during a pandemic,” Harris County Judge Lina Hidalgo, who approved the practice, said in a statement. “It is beyond comprehension that anyone would seek to invalidate 127,000 votes legally cast by voters.”
Hanen, in a series of remarks after dismissing the lawsuit, said he thought the votes in question were cast legally because, “The vast, vast, vast majority did that in reliance on their public officials telling them that this was a legal, right way to vote.” But he stopped short of saying the practice of drive-through voting is legal under the Texas Election Code and ordered Harris County, the defendant in the case, to maintain records of which voters utilized the drive-through option in case a higher court deems those votes illegal.
Hanen also cast doubt on the legality of future votes cast via drive-through, in which voters remain in their vehicles, provide identification to poll workers and then receive electronic devices on which to log in and cast their ballots.
“I’ve already voted,” Hanen said. “I would not vote in a drive-through just out of my concern as to whether that’s legal or not.”
Nearly 9 percent of the 1.435 million early votes cast in Harris County were via drive-through, according to early voting totals released by the Harris County Clerk’s Office. At Resurrection Metropolitan Community Church, an area polling place at 2025 W. 11th St. in Timbergove Manor, there were 10,337 drive-through voters during early voting and 6,880 ballots cast there through traditional in-person voting.
Jared Woodfill, an attorney for the plaintiffs, argued that drive-through voting violates the Texas Election Code and U.S. Constitution because the Texas Legislature has not specifically allowed for it and the state’s other 253 counties are not utilizing it. He also argued the movable tents utilized for drive-through voting are not structures, which is an early voting requirement according to the election code, but Hanen said he did not agree with that argument and considers drive-through tents to be structures.
However, Hanen also noted that voting in Texas on Election Day must be conducted in a “building.” He said he does not consider the drive-through tents to be buildings.
In light of Hanen’s opinion, Harris County Clerk Chris Hollins said Monday night on Twitter that only one of the county’s 10 drive-through polling sites, Toyota Center, will operate on Election Day because it is a permanent structure. The county is using a total of 806 polling locations on Tuesday.
Attorneys for Harris County said election officials such as Hollins, cited as the defendant in the lawsuit, have discretion about how to administer elections under state law. Attorneys representing some of the county’s drive-through voters also argued against the lawsuit and asked the judge not to discount their votes, with one saying, “Invalidating the ballots would be profoundly inequitable.”
David Hobbs, an attorney representing himself, said he and his wife voted via drive-though because she was 35 weeks pregnant at the time and it was an “ideal way” to minimize the risk of contracting COVID-19 while being conducive to his wife’s mobility issues. Hobbs said his wife delivered twins on Friday, so he was running on little sleep during Monday’s hearing.
“What they’re trying to do is completely inappropriate,” Hobbs said of the plaintiffs. “What they’re trying to do is replace the will of the people with the will of a few small people. I’m here to say my vote counts.”