A federal judge on Monday rejected a Republican lawsuit seeking to invalidate more than 120,000 ballots already cast via drive-thru early voting in Harris Country, Texas. U.S. District Judge Andrew Hanen ruled that the conservative activist and handful of GOP candidates who brought the suit did not have legal standing to sue. But the President George W. Bush appointee, who in 2016 blocked President Barack Obama’s expansion of the Deferred Action for Childhood Arrivals program, did indicate that beyond the issue of legal standing, he would have likely stopped the practice of drive-thru voting continuing on Election Day itself. Republicans then asked a federal appeals court to do just that, but the court denied the request.
Hanen’s judgment kept the early curbside votes already cast safe (for now) but raised questions about whether the drive-thru sites adhered to Texas election law and opened up future votes to possible legal scrutiny. “I would not vote in a drive thru out of my concern whether that’s legal or not,” Hanen said in his ruling. Hanen then ordered Houston-area Harris County to keep records of the drive-thru ballots cast on Election Day because of potential future legal challenges. That was enough for Harris County Clerk Chris Hollins, who decided to shut down nine of the county’s 10 drive-thru voting sites on Election Day, saying he “cannot in good faith encourage voters to cast their votes in tents if that puts their votes at risk.”
The drive-thru sites were part of an effort to allow voters to cast their ballots safely. To help make that happen, Harris County set up a number of large tents at early voting sites that would allow Texas voters to drive up, have their identification verified with an election worker, and then vote from the safety of their own car. Basically, the exact same thing that’s done in voting locations across the state. The legal wrangling, somewhat absurdly, is over whether those tents can technically be defined as a “building” or not because Texas law states “each polling place shall be located inside a building.”
“This evening, Judge Hanen issued his order upholding drive-thru voting during the Early Voting period. He also stated his view that the tents that house most of the drive-thru voting centers would not qualify as ‘buildings,’ which are required for Election Day polling places,” Hollins wrote on Twitter. “My job is to protect the right to vote for all Harris County voters, and that includes those who are going to vote on Election Day. I cannot in good faith encourage voters to cast their votes in tents if that puts their votes at risk.”
Hollins said that one drive-thru site—the Toyota Center—would remain open on Election Day. The home of the Houston Rockets “fits the Judge’s definition of a ‘building’: it is ‘a structure with walls and a roof’ and ‘a permanent structure,’” Hollins wrote on Twitter. “It is thus unquestionably a suitable location for Election Day voting.”
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