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.
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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