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Texas justices allow Harris County to count late-cast midterm ballots  

The ruling is a setback for Republican Attorney General Ken Paxton, who wants to invalidate all ballots cast during extended voting hours on Election Day.

AUSTIN, Texas (CN) — The Texas Supreme Court ruled Tuesday that Harris County election officials can include over 2,000 votes cast during an extended voting period on Election Day in certified results, but must give the number of late-cast votes in each individual race.

In their two-page order, the nine Republican justices on the state's highest civil appeals court rejected the request from Texas Attorney General Ken Paxton to outright nullify the votes cast after polls traditionally close. However, the court did not dismiss Paxton's petition to have late-cast votes thrown out in future elections. That challenge still remains pending before the court. 

The decision to allow Harris County to count the votes is so that “the parties can assess the extent to which further litigation is warranted," according to the ruling.

On Election Day, polling locations in the state's most populous county, home of Houston, experienced issues ranging from technical difficulties, broken voting machines and lack of paper needed for recording votes. These challenges led voting rights organizations, including the Texas Organizing Project, Texas Civil Rights Project and ACLU of Texas, to seek a court order allowing voters to cast provisional ballots for an additional hour.

A district judge granted the order to extend voting hours and Paxton, a Republican who was reelected to a third term, challenged the decision by petitioning the Texas Supreme Court to invalidate votes cast after 7 p.m. Central time. On election night, the high court sided with Paxton and issued an order to separate late-cast provisional ballots from those cast during regular voting hours.

The state high court’s decision to include the late ballots in the official tally comes on the same day that Texas county officials met to certify the results of the midterm elections.

Harris County attorney Christian D. Menefee told the Texas Tribune Tuesday that all roughly 2,100 votes cast during the extended hours should be counted.

“The votes that were cast during that time period pursuant to a court order are still perfectly legal. And there’s nothing in the law that prohibits them from being counted,” Menefee said.

Harris County election officials have drawn the ire of Republicans ranging from the Harris County GOP to Texas Governor Greg Abbott. Nearly a week after the election, Abbott called for the secretary of state to launch an investigation into “election improprieties" in the county.

"The allegations of election improprieties in our state's largest county may result from anything ranging from malfeasance to blatant criminal conduct,” Abbott said in a statement. “Voters in Harris County deserve to know what happened. Integrity in the election process is essential. To achieve that standard, a thorough investigation is warranted.”

One such malfeasant alleged by the Harris County GOP includes 19 majority-Republican precincts running out of ballot paper. This has led many Republicans to assert that the county engaged in attempts to suppress the conservative vote across the county. 

No investigation has been formally announced by the secretary of state's office, but Republicans in the county have vowed to further litigate the issue.

The issues between Republicans and Harris County election administrators have been ongoing since the 2020 presidential election, when the county implemented 24-hour and drive-thru voting to increase voter turnout during the pandemic and decrease potential exposure of Covid-19. Texas lawmakers banned both forms of voting in a controversial omnibus voting bill passed last fall.

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