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Federal court hears last-minute Republican bid to toss ballots in Texas

Nearly 127,000 votes could be discarded.

By JOSH GERSTEIN and ZACH MONTELLARO

A federal court in Houston is holding an emergency hearing Monday morning over a last-ditch effort by Republicans in Texas to toss out nearly 127,000 ballots in a Democratic-leaning county.

U.S. District Court Judge Andrew Hanen will hear arguments on the bid by a quartet of Texas Republicans — three candidates and a conservative activist — to invalidate all ballots cast in Harris County at drive-through polling places. The GOP contingent is arguing that the process was an illegal expansion of a limited provision for curbside voting in state law.

In addition to canceling ballots already cast via drive-through voting, the plaintiffs are looking to ban the use of the practice on Election Day.

The Texas Supreme Court, which is composed entirely of Republicans, rejected a case from the same plaintiffs over the same issue on Sunday. The state Supreme Court, which similarly rejected a case over drive-thru voting last month, did not explain its rationale in an order or an opinion.

It is the latest GOP-driven litigation that’s seeking to exclude a massive class of ballots. In Pennsylvania, Republicans challenged an extension to the ballot return deadline in the state, which the state Supreme Court OK'd, to the U.S. Supreme Court. The high court declined to hear an expedited challenge to the deadline last week, but in a statement accompanying the denial, Justice Samuel Alito left open the possibility of taking the case back up, and later tossing ballots that are received after close of polls.

“The Court’s denial of the motion to expedite is not a denial of a request for this Court to order that ballots received after Election Day be segregated so that if the State Supreme Court’s decision is ultimately overturned, a targeted remedy will be available,” he wrote.

And a challenge to a ballot extension in Minnesota, brought by a pair of Republican electors, resulted in a federal appellate court ordering that ballots that arrive after the close of polls be segregated, also strongly suggesting that the court would later rule that they be disqualified.

The assignment to the federal court litigation of Hanen, a staunchly conservative appointee of President George W. Bush, immediately prompted concern among Democratic activists that a significant number of votes in one of Texas’ key Democratic strongholds could be in jeopardy.

Still, invalidation of the votes prior is considered a long shot, since courts usually seek to accommodate voters who relied on official announcements or court rulings that are later overturned. Notifying all the voters who cast drive-through ballots to revote in person would be impossible just hours before Election Day polling is set to get underway.

Among Hanen’s most notable rulings is his 2015 decision blocking President Barack Obama’s expansion of the Deferred Action for Childhood Arrivals program, better known as DACA, which allowed people who entered the U.S. illegally as children to obtain quasi-legal status and work permits. Hanen repeatedly clashed with Justice Department lawyers during the proceeding, even threatening to hold them in contempt.

Hanen’s decision was appealed all the way to the Supreme Court, which deadlocked on the issue in 2016, leaving in place his order blocking DACA’s expansion.

However, Hanen has not always ruled in favor of conservatives, even in the immigration litigation of states seeking to stymie Obama’s immigration policies.

In 2018, the judge rejected a bid by Texas and other conservative states to halt the entire DACA program. He said the arrangement was probably illegal, but that too many people had relied on DACA and the states had waited too long to challenge the original portion of the program to upend it at that stage in the litigation.

The new federal suit over Harris County’s curbside voting practices was filed Wednesday against Harris County Clerk Chris Hollins, a Democrat. Several other groups have entered the legal fray to defend the county’s drive-through voting effort, including the Democratic Senatorial Campaign Committee, the Democratic Congressional Campaign Committee, Common Cause Texas and the Texas branches of the NAACP.

In a brief filed late Sunday night, lawyers for Hollins urged Hanen to reject the suit and respect the votes of voters who already took advantage of the drive-through process.

“There are more than 125,000 horses out of the barn,” Hollins’ attorneys wrote. “These voters cast ballots for candidates of both political parties in good-faith and justified reliance on the legality of the drive-through polling places.”

As an alternative to immediately nullifying the drive-through votes, the plaintiffs are asking Hanen to order the county to segregate the drive-through votes so that their legality can be addressed later.

But Hollins is also opposing that more limited request, saying it would cause alarm to voters who already case their ballots and might prompt many of them to seek to revote.

“They would be left to wonder whether their votes would be counted. Confidence in the democratic process would be shaken,” the county’s lawyers wrote.