Appeals Court Denies Bid to Ban Texas Drive-Through Voting

A federal appeals court denied a last-minute request from a group of Republican activists to ban drive-through voting in Texas’ most populous county.

In a three-line order, the Fifth Circuit appeals court in New Orleans on Monday denied the request for a preliminary injunction, without an explanation. While the ruling removed one immediate challenge to drive-through voting, the chief election officer in Harris County decided to close all but one facility that allows the practice, in a bid to avoid further legal issues.

The group bringing the case -- including voters and candidates for state and federal office -- said they sought the injunction to prevent “election violations which would otherwise occur” on the final day of voting in the presidential election. The group had originally sought to throw out 127,000 ballots already cast by drive-through voting, a practice the county set up to stem the spread of the coronavirus.

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.

Appeals Court Denies Bid to Ban Texas Drive-Through Voting

U.S. District Judge Andrew Hanen in Houston had rejected the suit earlier Monday, saying the plaintiffs didn’t have standing. But as he did so, the judge offered a hint of what might happen if the appeals court returned the case to him.

Hanen said that while he would still have denied the part of the lawsuit that seeks to invalidate already cast votes, he probably would have prohibited drive-through voting on Tuesday. He said that was because he didn’t agree that the tent where some people can drive up to vote counts as a “building,” as required on Election Day.

“A car is not a polling place,” the Republican activists wrote in their appeal. “If a car is a polling place, Harris County now has millions of voting locations around the county that change locations throughout the day.”

After the judge expressed those reservations, Harris County Clerk Chris Hollins said on Twitter that no drive-through voting places except for one at the Toyota Center would be operating on election day.

“The Toyota Center DTV site fits the judge’s definition of a ‘building’: it is ‘a structure with walls and a roof’ and ‘a permanent structure,’” Hollins wrote. “It is thus unquestionably a suitable location for Election Day voting.”

Hanen suggested that while the state legislature that makes voting law might be qualified to bring the suit, which names Hollins as defendant, the plaintiffs lacked that standing.

“For lack of a nicer way of saying it, I ain’t buying it,” Hanen said at a hearing Monday.

Lawyer Jared Woodfill, who represented the Republican activists, said Monday his clients were also appealing to the U.S. Supreme Court, after a similar request was rejected by the state’s highest court.

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