Judge dismisses Republican effort to invalidate Texas drive-through ballots

A federal judge on Monday dismissed a Republican-led petition to throw out 127,000 ballots cast at drive-through voting sites in Harris county, Texas. The case was the latest in a string of attempts by the party to cast doubt over the validity of drive-through and mail-in voting in the state’s most populous county; last week, the Texas supreme court rejected a similar case from the same plaintiffs.

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US district judge Andrew Hanen rejected the request to have ballots thrown out, but argued that a higher court could very well agree with the plaintiffs, who said that the tents used for drive-through voting do not qualify as a permanent structure, as mandated by the Texas election code. By Monday evening, the plaintiffs – three Republicans running for office and a conservative activist – had already appealed the decision, according to county officials.

The fight over drive-through voting in Harris County, an increasingly diverse and Democratic-leaning region that could play a crucial role in flipping the state, has thrown it into the national spotlight during a tight presidential race. Lina Hidalgo, the top elected county official in Harris county, told the Guardian that the plaintiffs “see the writing on the wall, that the electorate is changing in Texas and in Harris county, and they’re terrified”.

She said: “It’s certainly conceivable that if Texas were to go blue, that the path to that would have gone through Harris county, and that that’s behind the force with which they’re trying to invalidate our votes.”

This is not the first time elected Republican officials have attempted to make voting harder in Harris county this election. In October, Greg Abbott, the governor, ordered several ballot drop-off sites closed, leaving just one open for the entire county.

Hidalgo, the first Latina and first woman to hold the top elected seat in Harris county, chose to massively expand early voting this election cycle, and enacted several pro-voter reforms, including 24-hour voting and allowing voters to cast their ballot from any precinct. She says that drive-through voting will be available today, throughout election day, “pending any other court issues”.

Meanwhile, Mimi Marziani – the head of the Texas Civil Rights Project, a nonpartisan organization aimed at combating voter suppression – described the petition to have votes discounted as “seeking to do something unthinkable”.

“This was never about winning in the court of law,” Marziani said in a statement. “It was about manufacturing chaos and fear, in an antidemocratic attempt to keep voters from turning out.”

Early voting has ballooned in Harris county, compared to the last presidential election: over 1.34 million votes have been cast in the county so far, surpassing the total number of votes cast in the county in 2016. Under Hidalgo, the county has dramatically increased spending on the election: from $4m in 2016 to over $30m this election cycle.

Some of the pro-voter reforms that the county has implemented include 24-hour voting and allowing voters to cast a ballot from any precinct, rather than only at their home precinct – a first for the county.

But carrying out the election has been far from smooth. Prior to the court hearing on Monday, Harris county clerk Chris Hollins expressed his frustration over the lack of communication and clarification on the election code by the Texas secretary of state in recent weeks.

“Our secretary state has a statutory duty to advise and assist county officials in matters of election law,” Hollins said. “It is bizarre that on an important question like drive-through voting, which the secretary has already advised was okay, that when we’ve now followed up after the attorney general’s statement against drive-through following, they’ve disappeared off the face of the earth and refused to return our phone calls and fulfill their statutory duty.”

And even though the court upheld drive-through voting, the confusion over the issue itself could disenfranchise voters, said Anthony Gutierrez – the executive director of Common Cause, a nonpartisan organization dedicated to upholding democracy. He added that these challenges to voter accessibility can be successful in turning away new voters, even if the case is ultimately rejected.

“It’s super clear they want any new people to not be voting in Texas,” Gutierrez said. “A lot of people don’t understand which IDs they need or what the requirements are for vote-by-mail or curbside, it can just be confusing enough that they opt out and decide it seems like a lot of trouble.”

Harris county resident Melanie Cosme cast her ballot via drive-through voting during the early voting period. “I decided to vote via drive through because I wanted a safer option than waiting in lines with others and that was simple,” Cosme said.

But when news broke of the state Republicans’ latest efforts to make voting more difficult, Cosme said she was afraid her vote wouldn’t count.

“I thought it was ridiculous for the lawmakers to try two times to cancel drive-through votes, especially after voting had already been going on,” Cosme said. “There was no reason for the votes to be cancelled or invalidated because the process is the same thing as voting in a building. Texas has had so many voter suppression tactics this election, and this was just trying to be another one.”