Fight Over Harris County, TX Drive-Thru Voting Comes Down to the Wire

[Image via airdesigns]

The Texas Supreme Court has rejected a challenge to 127,000 votes cast in Harris County (Houston), TX’s drive-thru voting centers, but one more legal challenge is expected with Election Day coming up tomorrow. The Texas Tribune has more:

A legal cloud hanging over nearly 127,000 votes already cast in Harris County was at least temporarily lifted Sunday when the Texas Supreme Court rejected a request by several conservative Republican activists and candidates to preemptively throw out early balloting from drive-thru polling sites in the state’s most populous, and largely Democratic, county.

The all-Republican court denied the request without an order or opinion, as justices did last month in a similar lawsuit brought by some of the same plaintiffs.

The Republican plaintiffs, however, are pursuing a similar lawsuit in federal court, hoping to get the votes thrown out by arguing that drive-thru voting violates the U.S. constitution. A hearing in that case is set for Monday morning in a Houston-based federal district court, one day before Election Day. A rejection of the votes would constitute a monumental disenfranchisement of voters — drive-thru ballots account for about 10% of all in-person ballots cast during early voting in Harris County.

The concept of drive-thru voting in Harris is relatively new but far from untested – but plaintiffs are seeking to shut it down nonetheless as an improper extension of curbside voting:

After testing the approach during the July primary runoff with little controversy, Harris County, home to Houston, set up 10 drive-thru centers for the fall election to make early voting easier for people concerned about entering polling places during the pandemic. Voters pull up in their cars and, after their registrations and identifications have been confirmed by poll workers, are handed an electronic tablet through their car windows to cast ballots.

In a last-minute filing to the Supreme Court, [plaintiffs] sought to have the votes declared illegal. They argued that the drive-thru program was an expansion of curbside voting and under state election law should only be available for voters with disabilities. The same argument had been made in an unsuccessful previous legal challenge from [plaintiffs]  — along with the Harris County Republican Party — filed at the state Supreme Court hours before early voting began.

Curbside voting, long available under Texas election law, requires workers at every polling place to deliver onsite curbside ballots to voters who are “physically unable to enter the polling place without personal assistance or likelihood of injuring the voter’s health.” Posted signs at polling sites notify voters to ring a bell, call a number or honk to request curbside assistance.

The Harris County Clerk’s Office argued that its drive-thru locations are separate polling places, distinct from attached curbside spots, and therefore can be available to all voters. The clerk’s filing with the Supreme Court in the earlier lawsuit also said the Texas secretary of state’s office had approved of drive-thru voting. Keith Ingram, the state’s chief election official, said in a court hearing last month in another lawsuit that drive-thru voting is “a creative approach that is probably okay legally,” according to court transcripts.

In any event, the county argues that any effort to stop drive-thru voting should not invalidate votes cast by voters there:

Plus, the county argued in a Friday filing that Texas’ election code, along with court rulings, have determined that even if the drive-thru locations are violations, votes cast there are still valid.

“More than a century of Texas case law requires that votes be counted even if election official[s] violate directory election laws,” the filing said.

The challenge was the latest in a flurry of lawsuits on Texas voting procedures filed in recent months, with Democrats and voting rights groups pushing for expanded voting access in the pandemic and Republicans seeking to limit voting options. In this case, the lawsuit filed Tuesday asked the state Supreme Court to close Harris County’s 10 new drive-thru polling places and not count votes that had been cast at them during early voting.

The court has recently ruled against other last-minute challenges on voting access by noting that the cases were filed too late and that changes to voting procedure during an election would sow voter confusion.

Whatever you think of drive-thru voting (which strikes me as a creative solution to the challenges of casting safe and socially distant ballots during a pandemic), this kind of uncertainty literally on the eve of Election Day is deeply unfortunate. Here’s hoping that there’s no further disruption to voting in Harris County and that courts will reject any last-minute changes to voting of any kind. Pull forward and stay tuned …

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