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Texas Republicans Are Still Trying to Throw Out 127,000 Drive-Through Ballots

A federal case could disenfranchise thousands of voters in one of the most hotly contested states and potentially make the difference between victory for President Trump or former Vice President Joe Biden.
An elderly voter uses the drive-thru option to vote from his car outside Richardson City Hall during early voting Tuesday, Oct. 13, 2020, in Richardson, Texas.

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A state court in Texas roundly rejected a Republican bid to get nearly 127,000 ballots cast at drive-through locations tossed out over the weekend. But that hardly means the GOP has stopped trying. 

Republican activists are now pinning their hopes on federal court. Although some legal observers dismiss the merits of their lawsuit, the case landed before a famously ultraconservative judge who scheduled a hearing one day before Election Day.

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The case could disenfranchise thousands of voters in one of the most hotly contested states of the 2020 campaign and potentially make the all-important difference between victory for President Trump or former Vice President Joe Biden if the result comes down to a tight vote tally in Texas. 

Texas Republicans argue that drive-through voting in Harris County, which includes the Democratic stronghold of Houston, should be ruled incompatible with Texas voting law and the U.S. Constitution, even though thousands of votes have already been cast using the method. The plaintiffs include GOP activist Steven Hotze and state representative Steve Toth.

“By indiscriminately encouraging and allowing any and all Harris County registered voters to cast their ballots via curbside drive-thru voting, Defendant is violating both federal and state law,” their complaint against Harris County Clerk Chris Hollins reads. 

Harris County, with a population of almost 5 million, launched drive-through voting as an attempt to make early voting safer during the pandemic. 

But the plaintiffs argue that the drive-through locations are positioned in areas that favor Democratic voters and therefore violate the equal protection clause of the Constitution. That same clause, their complaint notes, was the basis for the Supreme Court’s notorious decision in favor of former President George W. Bush to end the contested recount in Florida at the end of the 2000 campaign. 

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The plaintiffs are now counting on a favorable ruling from the famously ultra-conservative Judge Andrew S. Hanen, the man dubbed by Slate “one of the most notoriously partisan conservatives in the federal judiciary.” Judge Hanen, who was appointed by Bush, scheduled a hearing in the case for Monday at 10:30 a.m. in Houston on Nov. 2.  

The attempt to toss over 100,000 ballots comes against a backdrop of widespread attempts by pro-GOP legal forces to limit the ways people can vote and the leeway state officials have to count ballots. Republicans have fought hard in battleground states across the country to disallow expansions to voter access arising due to the pandemic and to disqualify mail-in ballots that arrive after Election Day. 

The once dependably-Republican state of Texas has emerged as a crucial swing state in recent years thanks to demographic changes. That change has also helped make Texas a legal battleground and a hotbed of GOP attempts to limit access to voting. 

In a statement Saturday, Hollins declared drive-through voting “safe, secure, and convenient.”

“Texas Election Code allows it, the Secretary of State approved it, and 127,000 voters from all walks of life have used it,” he added.

Any decision announced by Judge Hanen could easily rise to the Supreme Court and, if the tally is close in Texas, might influence the result of one of the most important states in the national race for the presidency.