Judge rules to allow 127,000 ballots cast by drive-thru to count in Harris County

Federal Judge Andrew Hanen said even if he did decide to rule on the case, he would not have tossed those votes out.

HOUSTON (Nexstar) — A case that aimed to get rid of 127,000 ballots cast through drive-through voting in Harris County has been dismissed.

Republicans who filed the case were attempting to halt drive-through voting and toss the 127,000 ballots already cast by drive-through.

Federal Judge Andrew Hanen said even if he did decide to rule on the case, he would not have tossed those votes out.

An attorney for the plaintiffs, which include state Representative Steve Toth and conservative activist Steve Hotze, argued Democratic Harris County Clerk Chris Hollins is using the pandemic as an excuse to come up with a new manner of voting.

Judge Hanen questioned the timing of the case on Monday, asking why he was just getting the case now, and the defense argued there wasn't an issue with the drive-through option when it was used in July during the primary run-off election.

The plaintiffs have appealed the judge's decision.

Democratic National Committee Chairman Tom Perez, who was in Texas Monday, also questioned the timing of the lawsuit.

"We're literally on the eve of the elections, and the purpose of that lawsuit was to basically suppress 125,000 or more votes. I appreciate the fact that these votes will be counted because they should," Perez said.

But, Texas GOP Chairman Allen West said he questioned the judge's final decision.

"The judicial branch is supposed to interpret the law. And when you have someone that has violated Texas election law, like Chris Hollis has done by expanding curbside voting. I don't know, you know, what the judge in this case would have been thinking of," West said.

The League of Women Voters Texas, which joined the defendants in the case, called the Republicans' attempt an act of voter suppression.

"That's 127,000 voters in Harris County, who went and voted legally. They just happened to vote from their car, but every procedure they followed had been done in a previous election and was followed in this election," LWV Texas President Grace Chimene said, "And it was a safe and secure vote; there was absolutely no reason except for manipulation, voter manipulation for this to happen."

Existing Texas law allows polls to be "in any stationary structure" or "in a movable structure in the general election.

The plaintiffs argued a car is not a structure. The defense claimed a car does fit the state's definition, and said drive-thru voting is being monitored the same way all other polling locations are being monitored.

The plaintiffs also argued the drive-through ballots were cast illegally and could dilute other counties that follow existing state law. They said curbside voting, which is included in the state's election code, is meant for the elderly and disabled.

In a similar case, filed by the same plaintiffs, the Texas Supreme Court dismissed the request entirely without an order or opinion over the weekend.

On Monday, Texas Democrats responded to the decision, saying, in part:

"The ruling to let the nearly 127,000 drive-thru votes stand was the correct decision but it doesn’t change a simple fact: This should have never been an issue in the first place. Texans who lawfully voted at drive through locations should have never had to fear that their votes wouldn’t be counted and their voices wouldn’t be heard. This lawsuit was shameful and it should have never seen the light of day."

Texas Democrats

TDP Chairman Gilberto Hinojosa said he was happy with the judge's decision.

"I believe it's shameful what the Republican Party is doing, in attempting to throw out these ballots. And I think that the judge recognizes that and he said it from the very beginning, I heard that they had a very hard, or difficult task before them to try to convince him to throw them out," Hinojosa said.

The Biden campaign also released a statement Monday, saying: "Today is a victory for Texas voters and the more than 120,000 Texans who followed the rules, made a plan to drive-in vote, and exercised their constitutional right. Make no mistake: this is not a partisan victory. This is a victory for voters across the country who are exercising their constitutional right to make their voices heard."