District Court Written Ruling in Texas Drive-Thru Case Now Available as Plaintiffs Appeal to Fifth Circuit; Court Leaves Door Slightly Open to Another Court Throwing Out Drive-Thru Ballots Cast *on* Election Day

You can find the order in two parts. The reasoning was primarily about lack of standing and laches in bringing suit, something I anticipated would play a great role in this case: defendants knew this voting was going on for months, sat on their hands, while 120,000 Harris County voters relied upon a lawful means of voting. The public interest heavily favors letting people who are legally entitled to vote not to be disenfranchised.

The case is now on appeal at the 5th Circuit (No. 20-20574) where I expect the case to similarly fail.

There is one wrinkle that gives me pause. District Court Judge Hanen opined that state law authorization for voting ON election day using drive thru voting is illegal under Texas Law even if pre-election day voting was allowed. He only rejected an injunction as to election day because of the standing problems. He did not appear to order that ballots cast in drive-thru on election day be segregated, as seemed possible from the oral report of the hearing.

It’s unlikely drive-thru votes on election day would not be accepted, but it is at least conceivable that the 5th Circuit or another court could order drive-thru ballots segregated for further legal proceedings. For this reason, I would strongly caution against using this method of voting on Election Day.

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