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Federal Judge Refuses to Toss Houston Drive-Thru Votes

A bid by Republicans to get more than 127,000 drive-thru votes tossed out as illegal in Texas’ biggest county was rejected Monday by a federal judge who found they lack standing.

HOUSTON (CN) — A bid by Republicans to get more than 127,000 drive-thru votes tossed out as illegal in Texas’ biggest county was rejected Monday by a federal judge who found they lack standing.

A Republican activist and three GOP candidates running for office sued Harris County Clerk Chris Hollins in federal court in the county seat Houston on Oct. 28, just two days before the end of early voting in Texas.

They claimed that although the Texas Election Code limits curbside voting from vehicles only to people who are sick, disabled or whose health would be injured from voting in a polling place, Hollins had used the “pandemic as his pretext” to permit all Harris County registered voters to vote curbside or in drive-thru polls.

They asked U.S. District Judge Andrew Hanen, a George W. Bush appointee, to invalidate all the drive-thru votes cast so far by Harris County voters, in a record-breaking election season in which more than 1 million residents cast ballots before the last week of early voting.

In his order published Tuesday evening, Hanen explained that the plaintiffs could have filed their suit around the time drive-thru voting began in Harris County on Oct. 13.

"Instead, they waited until October 28, 2020 at 9:08 p.m. to file their complaint and did not file their actual motion for temporary relief until mid-day on October 30, 2020 — the last day of early voting," Hanen wrote. "The Court finds this delay is critical."

Hanen did find, however, that the tents used for voting at most of the drive-thru polling places in the county do not qualify as "'buildings' within the meaning of the Election Code."

"Consequently, this Court, had it found that standing existed, would have granted the injunction prospectively and enjoined drive-thru voting on Election Day and denied all other relief," Hanen wrote.

After the judge ruled from the bench, but before his order was published, Hollins expounded on the decision.

“When I took my job I took an oath to preserve and protect the constitution and the laws of the United States and of this state and Judge Hanen, when he became a federal judge, he took that same oath and that’s why today he upheld the law,” Hollins told reporters after the hearing.

“The law is that the 127,000 voters who were eligible here in Harris County, who followed the rules, who cast their ballots fair and square,” he added, “those folks are Democrats and Republicans, old and young, urban, rural, black, white, brown and everything in between, they represent the best of us, coming together to choose the next generation of leadership in this country.”

After Hanen's written order was released, and the plaintiffs appealed to the New Orleans-based Fifth Circuit Court of Appeal, Hollins announced that the county would only allow drive-thru voting at one location on Election Day: the Toyota Center.

"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.' It is thus unquestionably a suitable location for Election Day voting," Hollins wrote on Twitter.

Shortly after Hollins' announcement, the Fifth Circuit denied plaintiffs' appeal late Monday evening.

A car-side voting location is empty at Prairie View A&M University Northwest polling station in Houston on Friday, Oct. 30, 2020. The location was one of the eight Harris County's 24-hour locations. (Elizabeth Conley/Houston Chronicle via AP)

Due to social distancing concerns, Hanen only let reporters from a few outlets into the courtroom for Monday’s hearing, among them the Houston Chronicle, which said it had to get legal counsel to convince Hanen to lets its staff in.

The hearing was broadcast on a Zoom conference call for reporters who could not get in, but the arguments were hard to hear on the scratchy line.

A group of 30 protesters gathered outside the courthouse Monday morning, holding American flags and signs that read “Count Every Vote.”

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Dorothy Lillig and her friend Aude Fauger, both Houston residents, said they cast their votes at the same polling place, a Houston Community College campus.

Lillig voted on a machine inside the building and Fauger and her husband voted from their vehicle, in a tent-covered drive-thru lane in the parking lot, on tablets election officials handed them.

“And it was the same process,” Lillig said.

She noted Harris County rolled out a trial run of drive-thru voting in July for primary runoffs and “no one said anything,” and said she didn’t know what the GOP challengers were trying to accomplish with their lawsuit “other than they want fewer people to be able to vote easily and that’s a problem.”

Dorothy Lillig (left) and Aude Fauger outside the Houston federal courthouse on Nov. 2. (Courthouse News photo / Cameron Langford)

Texas is one of five states this election season not giving all voters the option to vote by mail amid the pandemic.

The Texas Supreme Court ruled in May that fear of contracting Covid-19 at the polls, or lack of immunity to the disease, did not constitute a disability allowing people to vote by mail, and followed up with an order in September barring Hollins from executing his plan to send mail-in ballot applications to all the county’s 2.4 million registered voters.

Fauger said she believes all Texans should be able to vote by mail. As a naturalized citizen from France, she said for many years she did not have the right to vote in U.S. elections so now she cherishes that right.

“Why would you negate a vote that’s perfectly legal and was approved and planned for?” she said.

In legal briefs, Hollins emphasized one state leader’s blessing of Harris County’s drive-thru voting in defending the method.

In a September hearing in a case over absentee ballot applications, Texas Elections Director Keith Ingram, a Republican, said drive-thru voting “is “a creative approach that is probably okay legally.”

One of the Republican plaintiffs in the federal case is Wendell Champion, who is running against longtime incumbent Sheila Jackson Lee for U.S. House District 18, which includes downtown Houston.

U.S. Representative Sheila Jackson Lee outside the Bob Casey United States Courthouse in Houston on Nov. 2. (Courthouse News photo / Cameron Langford)

Jackson Lee said her district has had the largest number of drive-thru votes cast in Harris County and her support of this type of voting is not about partisanship.

“We’re not making this a political fight, a Democratic fight,” Jackson Lee said. “We’re making this a fight that really touches my heart and breaks my heart that hardworking Texans, people who live in Harris County and Houston, are now being considered pawns in a political lawsuit.”

Shortly after the GOP candidates filed their lawsuit Oct. 28, the Democratic Senatorial Campaign Committee and the Democratic Congressional Campaign Committee, the campaign fundraising organizations of congressional Democrats, filed motions to intervene on behalf of Hollins.

So did the campaign of MJ Hegar, a Democrat challenging GOP incumbent John Cornyn for a U.S. Senate seat, and the Texas State Conference of NAACP Branches and the League of Women Voters of Texas.

David Hobbs intervened in support of Hollins for himself and his wife Bettye Hobbs.

David said Bettye was 35 weeks pregnant when they decided to cast their ballots early via drive-thru voting. She gave birth to twin baby girls Friday.

Intervenor defendant David Hobbs outside the federal courthouse in Houston on Monday. (Courthouse News photo / Cameron Langford)

“Votes should be protected. That’s what Democracy is,” Hobbs told reporters after Judge Hanen found the plaintiffs lack standing.

Champion joined Dr. Steve Hotze, a Houston Republican activist, as a plaintiff. Hotze, an allergy doctor, has filed numerous lawsuits this year against Harris County and Texas state officials over election rules and their response to the pandemic.

The two other plaintiffs are Sharon Hemphill, who is running for a Harris County civil court judgeship, and Steven Toth, who is attempting to hold onto his seat in the Texas state house.

Represented by Houston attorney Jared Woodfill, former chair of the Harris County Republican Party, they filed a similar petition with the Texas Supreme Court, asking it to toss out all of Harris County’s drive-thru votes, the day before they filed their federal lawsuit.

The all-Republican state high court denied their petition Sunday without issuing an order.

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