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Judge Hears Case That Will Decide Fate of 127,000 Harris County Ballots

A federal judge in Houston on Monday heard arguments in a case that will decide whether or not over 127,000 votes cast at Harris County’s drive-thru voting sites will be invalidated. 

U.S. District Judge Andrew S. Hanen, a George W. Bush appointee, appeared initially skeptical of the attempt, telling the Republican plaintiffs that they face an “uphill road” to convince him that the votes should be voided. Hanen said that the Republicans must prove that Harris County Clerk Chris Hollins had an “evil motive” in permitting the drive-thru voting sites.

Hanen, echoing arguments made by Harris County, 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.

Hanen, however, has also questioned whether an established legal doctrine that generally prohibits courts from altering election procedure on the eve of an election is applicable in this case — a potential bad sign for Harris County.

Lawyers for Harris County are arguing that granting the Republicans’ challenge would “create chaos” on Election Day.  “Voters would reasonably fear they could not be allowed to vote again.”  Another lawyer arguing to protect votes cast at the drive-thru locations told the court that “invalidating the ballots would be profoundly inequitable.”

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

“The lawsuit is patently wrong,” tweeted Straus.

“All of us who believe in the core ideals of this country should want more votes counted and more voices heard. While it may be too late for this election, the Republican Party needs to return to a place where we win with ideas and persuasion rather than trying to intimidate and silence our fellow citizens. I hope all elected statewide leaders in the Texas Republican Party will stand up against these desperate tactics.” 

Straus also 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.”

“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 have also intervened in the suit in support of Harris County.

It is currently unclear how or when Hanen will rule in this case, but a decision sometime later today is probable.

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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