U.S. District Court Judge Andrew Hanen, who was appointed by President George W. Bush, will hear arguments from four Texas Republicans seeking to invalidate all ballots cast at drive-thru polling stations in Harris County, a Democratic stronghold.
The Republican activists and candidates are arguing that the drive-thru program is an expansion of curbside voting, and therefore should only be available to voters with disabilities under state election law. They have also challenged the practice as a violation of the U.S. Constitution, which gives state legislatures the authority to decide how elections are run.
On top of throwing out ballots already cast via drive-thru voting, the Republicans are looking to ban the use of the practice on Tuesday during Election Day.
The Texas Supreme Court rejected a case from the same plaintiffs over the same issue on Sunday. The all-Republican court did not explain why it had thrown out the lawsuit.
State election law has long allowed Texans with medical conditions to vote curbside, in which a ballot is brought outside to them by a poll worker while the voter remains in their car. Harris County also opened 10 drive-thru locations in October for early voting, in which voters are handed a portable machine through their car window to vote, as a safety measure during the coronavirus pandemic.
Drive-thru voting allows for voters to safely cast their ballots while "naturally socially distanced" within their vehicles and is as secure as walk-in voting, according to the Harris County Clerk's Office website.
As of Friday, nearly 127,000 of Harris County's 2.4 million eligible voters had cast a ballot through drive-thru voting, representing about 9% of the total votes cast so far.
In a brief filed late Sunday night, attorneys for Harris County Clerk Chris Hollins called on Hanen to reject the lawsuit.
"The Texas Supreme Court has twice declined to interfere," the brief says. "The fact that the final arbiter of the Texas Election Code found no justification for interfering with drive-through polling places—based on the same legal arguments—in the middle of the election is an unmistakable indication that the public interest is best served by allowing the election to proceed without interference."
Texas has some of the most stringent voting laws in the country and is one of a handful of states that did not relax criteria for requesting mail-in ballots during the virus-induced crisis. The state allows voters to cast an absentee ballot if they are over the age of 65, have an illness or disability, will be out of the country for early voting or Election Day, or are in jail but otherwise eligible to vote.
According to an aggregate of polls from RealClearPolitics, President Trump is leading Democratic rival Joe Biden by 4.4 percentage points in Texas.