Texas Drive-Through Votes Survive GOP Lawsuit to Toss Them

(Bloomberg) -- A federal judge rejected an effort to invalidate 127,000 votes in the most populous county in Texas, a ruling that Republican activists said they would immediately appeal.

“For lack of a nicer way of saying it, I ain’t buying it,” U.S. District Judge Andrew Hanen said at a hearing on Monday. He denied the request to throw out drive-through ballots in Harris County because the Republicans lacked standing to bring the case, but didn’t rule on its underlying merits.

The hearing in federal court in Houston took place one day after the state’s Supreme Court denied a similar request without comment. The plaintiffs said they would bring Hanen’s ruling to the federal appeals court in New Orleans, one of the most conservative circuit courts in the nation, and the state court’s decision to the U.S. Supreme Court.

Harris County, which includes the Houston metropolitan area, is home to about 4.7 million people and voted for Hillary Clinton in 2016 by 161,959 ballots. After years of being solidly Republican, Texas is now considered a toss-up state in some polls, putting its 38 electoral college votes in play as Democratic challenger Joe Biden squares off against President Donald Trump.

“We will have drive-through voting tomorrow,” Harris County Clerk Chris Hollins said after the hearing outside the courtroom, where a few protesters had gathered earlier with signs urging the judge to “count every vote.”

The ruling “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,” Rebecca Acuña, the Texas director of Biden for President, said in a statement, adding that it was “not a partisan victory” but a win for all voters.

Big Difference

Because the judge ruled only on standing -- a plaintiff’s qualifications to bring a suit in the first place -- the case would return to him for a ruling on the merits of an injunction against the votes itself if the appeals court finds that the plaintiffs do have standing. In the parallel state case, the U.S. Supreme Court could rule on the merits.

But Hanen made no secret of his view. If he had ruled on the merits, he said, he would have denied the portion of the lawsuit seeking to invalidate past votes cast by drive-through. Still, he said, he probably would have prohibited drive-through voting on Election Day because he didn’t agree that the tent where some people can drive up to vote counts as a “building” under election law.

The Republicans argued, in part, that drive-through voting is an illegal extension of curbside voting, which is meant for people who are sick or have a physical disability. Harris County implemented it to limit the spread of the coronavirus during the election.

David Hobbs, a Houston attorney who had asked to be included in the case, said he did drive-through voting on Oct. 13 because his wife was 35 weeks pregnant.

“His concern is that people are actually voting,” Hobbs said of a lawyer representing the Republicans. “That’s not an injury to any of the plaintiffs. That’s an election.”

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