Texas Supreme Court rejects Republican effort to collect nearly 127,000 votes

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A legal cloud exceeding nearly 127,000 votes already cast in Harris County were at least temporarily cast lifted Sunday when the Texas Supreme Court rejected a request by several conservative Republican activists and candidates to preemptively dismiss the early poll at drive-thru voting sites in the state’s most populous and largely Democratic county.

The all-Republican court dismissed the claim without an order or opinion, as judges did last month in a similar lawsuit filed by some of the same plaintiffs.

Republican plaintiffs, however, are pursuing a similar lawsuit in federal court, hoping to get the rejected votes arguing that drive-thru voting violates the U.S. constitution. A hearing in the case is scheduled for Monday morning in a Houston-based federal district court, one day before polling day. A rejection of the votes would be a monumental deprivation of voters – drive-thru ballots make up about 10% of all in-person ballots in the advance poll in Harris County.

After testing the approach in the second round of the July primaries with little controversy, Harris County, home to Houston, set up 10 drive-thru centers for the fall election to facilitate early voting people concerned about entering polling stations during the pandemic. Voters park in their cars and, after their registration and identity has been confirmed by polling officers, they are given an electronic tablet through their car windows to vote.

In a last-minute Supreme Court filing, Tory Steven Hotze and Harris County Republicans, State Representative Steve Toth, Congressional candidate Wendell Champion and justice candidate Sharon Hemphill sought a declaration illegal votes. They argued that the drive-through program was an extension of curbside voting, and that state election law should only be available to voters with disabilities. The same argument was made in an earlier unsuccessful court challenge by Hotze and Hemphill – along with the Harris County Republican Party – filed in the state Supreme Court hours before the early voting began.

Curbside voting, long available under Texas electoral law, requires workers at each polling station to hand out ballots on the spot to voters who are “physically unable to enter the polling station.” without personal assistance or risk of damaging the health of the voter ”. Signs posted on voting sites advise voters to ring a bell, call a number or honk their horns for curbside assistance.

The Harris County Clerk’s Office argued that its drive-thru locations are separate polling stations, separate from adjoining curbside points, and therefore may be accessible to all voters. The clerk’s filing to the Supreme Court in the previous lawsuit also indicated that the Texas Secretary of State’s office had approved the drive-thru vote. Keith Ingram, the state’s chief electoral officer, said in a hearing last month in another trial that drive-thru voting is “a creative approach that is probably legally acceptable,” according to court transcripts.

Additionally, the county argued in a Friday filing that the Texas Election Code, along with court rulings, determined that even though drive-thru locations are violations, the votes cast there are still valid.

“More than a century of Texas jurisprudence demands that the votes be counted even if the election official[s] violate the electoral laws of the directory ”, indicates the file.

The challenge was the latest in a wave of lawsuits over Texas voting procedures filed in recent months, with Democrats and voting rights groups pushing for expanded voting access in the pandemic and Republicans seeking to limit voting options. In that case, the complaint filed Tuesday called on the state Supreme Court to shut down the 10 new drive-through polls in Harris County and not count the votes cast to them in the early poll.

The court recently ruled against other last-minute contestations over access to the vote, noting that cases were filed too late and that changes to the voting procedure during an election would confuse voters.

Since the first Republican drive-by vote challenge was filed on Oct. 12, Texas Secretary of State and Governor Greg Abbott had both ignored requests from reporters and Harris County officials to clarify their positions on the legality of the process. Texas Republican Attorney General Ken Paxton sent a letter to all local election officials claiming most voters could not legally vote at drive-thru locations, fueling speculation that the Republican Supreme Court would use the ‘case to invalidate the ballots already cast. The court dismissed the case next week, with just one dissent from Judge John Devine.

The Republicans’ new challenge once again asked the court to reject drive-thru voting as an illegal expansion of curbside voting, and went further by also asking the court to make an order rejecting votes already cast.

“Unless arrested, illegal votes will be cast and counted in direct violation of the Texas Election Code and the United States Constitution and will compromise the integrity of the Harris County elections,” said the petition to court.

The county clerk’s office countered that the first drive-by vote challenge had already been denied and the second filing had arrived far too late.

“Hotze filed a petition challenging the drive-through locations on the third day of the advance poll, which the court has already denied,” the clerk’s filing said Friday. “He filed this second petition two and a half weeks after the early voting began, six days before polling day, and after fifty percent of registered voters have already voted.”

However, the tens of thousands of votes are still on the move, as federal courts now assess the matter. Hotze and the others asked the district court this week to reject the votes, arguing that the county’s implementation of drive-thru voting violates the U.S. Constitution. The campaign of Texas Democratic candidate for the US Senate, Mr. J. Hegar, as well as the National Democratic campaign Groups have asked to intervene in the trial – following a national trend in Republican-led battles against ballot expansions during the tumultuous election.

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