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Federal Judge Tosses Out Challenge to 127,000 Harris County Ballots

Update: The lower court ruling has now been appealed to 5th U.S. Court of Appeals.

After a Monday morning of hearing oral arguments, a federal judge in Houston has dismissed a Republican attempt to void 127,000 Harris County drive-thru votes, saying they lacked standing to bring the suit. 

U.S. District Judge Andew S. Hanen, a George W. Bush appointee, appeared initially skeptical, remarking that the Republican plaintiffs faced an “uphill road” to convince him that the votes should be voided. 

Hanen also grilled the plaintiffs on the down-to-the-wire timing of their lawsuit.

“Didn’t we test this in the primaries this summer? … Why am I just getting this case?” Hanen asked the lawyers.

“This last-minute petition was seeking to do something unthinkable–cancelling over 127,000 votes cast in good faith by voters who did everything by the book,” said Mimi Marziani, President of the Texas Civil Rights Project and co-chair of the Texas Right to Vote Network. “This extreme argument is well outside the bounds of any legal precedent and, in fact, prohibited by federal voter protection laws. Because it was utterly deficient, the plaintiffs were never going to win on legal grounds, but in fact this was never about winning in the court of law. It was about manufacturing chaos and fear, in an antidemocratic attempt to keep voters from turning out. 

Lawyers for Harris County argued that granting the Republicans’ challenge would “create chaos” and fear on Election Day. Another lawyer said that “invalidating the ballots would be profoundly inequitable.”

The lawsuit was brought less than a week ago by state Rep. Steve Toth (R-The Woodlands), conservative activist Steve Hotze, and judicial candidate Sharon Hemphill, all Republicans. On Sunday, the Texas Supreme Court rejected a nearly identical claim from the same plaintiffs.

“The ruling to let the nearly 127,000 drive-thru votes stand was the correct decision but it doesn’t change a simple fact: This should have never been an issue in the first place,” said Texas Democratic Party chair Gilberto Hinojosa in reaction to the judge’s dismissal of the case. “Texans who lawfully voted at drive through locations should have never had to fear that their votes wouldn’t be counted and their voices wouldn’t be heard. This lawsuit was shameful and it should have never seen the light of day.” 

The attempt to erase over 127,000 votes even drew criticism from Republican former Speaker of the Texas House of Representatives Joe Straus.

“The lawsuit is patently wrong,” tweeted Straus.

Straus filed an amicus brief in the case on Sunday evening, urging the court not to invalidate the votes.

“This court should reject plaintiffs’ requested relief — as the Texas Supreme Court has already done twice — because the Texas Legislature has plainly provided the Harris County clerk with the authority to establish drive-thru voting locations,” according to Straus’ brief.

“An emergency challenge to a months-old policy brought on the last day of early voting is certainly too late, as more than 100,000 voters are not merely likely to be confused but will be disenfranchised through no fault of their own.”

The American Civil Liberties Union, national Democratic groups, a coalition of Harris County voters and Texas Democratic U.S. Senate candidate MJ Hegar also intervened in the suit in support of Harris County.

“This is what democracy looks like,” said Andre Segura, legal director of the ACLU of Texas. “This is the third attempt by these individuals to throw out votes legally cast, and once again they’ve been denied. Our justice system did its duty today to ensure voting rights are protected and our democracy remains intact.”

Brooks Tobin
Brooks Tobin
Brooks Tobin is a practicing litigator in Houston, TX and a former federal law clerk for a U.S. District Court Judge. He attended the University of Texas School of Law and earned his bachelor’s degree from Washington & Lee University.


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