Update: The Republicans challenging Harris County’s drive-thru voting indicated Monday evening that they’ll take their case to the U.S. Court of Appeal for the 5th Circuit.
A federal judge has rejected the request by Republican candidates and activists in Texas that the court toss the 125,000-plus ballots that had been cast through Harris County’s drive-thru voting option.
U.S. District Judge Andrew Hanen, a very conservative George W. Bush appointee, announced Monday that he was throwing out the lawsuit because the Republicans who brought it didn’t meet the procedural threshold to warrant a federal court’s intervention.
In doing so, Hanen will also let drive-thru voting continue on Election Day in Harris County, which is home to Houston.
But Hanen’s handling of the case was not an across-the-board win for voting rights, as he warned of the potential that an appeals court would disagree with him and thus ordered that records of which ballots were cast via drive-thru voting be maintained.
He also suggested that under different circumstances, the challengers might have been able to block drive-thru voting going forward — a decision that would have caused massive chaos and confusion in the final stretch of the election.
Hanen announced his ruling from the bench not long after holding a hearing in the case, during which he previewed the potential that the losing party would turn to the U.S. Court of Appeals for the 5th Circuit.
According to an account of Hanen’s announcement from a Texas-based lawyer, the judge said that even if he had found that the challengers had met the procedural threshold to move forward with the lawsuit, he would not have ruled in favor of discarding the already-cast ballots, which according to the county, amount to 10 percent of its early vote.
Hanen knocked the challengers for waiting so long to bring their complaint, which was filed last week even though the plans for drive-thru voting has been known since since September.
Hanen did say that, had the challengers crossed the procedural bars, he would have likely blocked the use of drive-thru voting on Election Day. He also ordered that the county keep records of which ballots are cast via that option, while cautioned voters against using it since it could still be vulnerable if the case is appealed.
“If I thought plaintiffs had standing, I would deny the injunction as to votes that have already taken place. “
So he’s making this bullet proof.
— Raffi Melkonian (@RMFifthCircuit) November 2, 2020
“I also would not enter an injunction because I don’t find it timely. This has been happening at least since September, when the Harris County Commissioner’s Court allocated money.”
— Raffi Melkonian (@RMFifthCircuit) November 2, 2020
“If I had found standing, I would *probably* enjoin tomorrow’s voting.”
— Raffi Melkonian (@RMFifthCircuit) November 2, 2020
“Three other points:”
(a) “If I were voting tomorrow, I would not vote through a drive-through to make sure my vote would be valid.”
— Raffi Melkonian (@RMFifthCircuit) November 2, 2020
(b) “I am going to order you to maintain records of who votes drive-through tomorrow.”
(c) “I am denying the motions to intervene because I am dismissing the case.”
— Raffi Melkonian (@RMFifthCircuit) November 2, 2020
The Republicans’ defeat in the federal court case came after the state Supreme Court — which is also very conservative — repeatedly denied requests that it put a stop to curbside voting.
