By Jennifer Hiller and Jan Wolfe
HOUSTON (Reuters) - A federal judge in Texas on Monday appeared skeptical of an attempt by Republicans to throw out about 127,000 votes already cast in the U.S. presidential election at drive-through voting sites in Houston, a Democratic-leaning area.
On the eve of Election Day, U.S. District Judge Andrew Hanen said the Republicans who brought the case faced an "uphill road" in convincing him that the votes should be voided.
The judge said the plaintiffs needed to show that Harris County Clerk Chris Hollins, a Democrat, had an "evil motive" in allowing drive-through voting as an alternative during the coronavirus pandemic.
Hanen also questioned the last-minute timing of the case.
“Didn’t we test this in the primaries this summer?" The judge asked a lawyer for the plaintiffs, adding: "Why am I just getting this case?”
The lawsuit was brought on Wednesday by plaintiffs including state Representative Steve Toth, conservative activist Steve Hotze, and judicial candidate Sharon Hemphill.
Texas, the second largest U.S. state, is traditionally a Republican stronghold but polls show a tight race this year between President Donald Trump and Democratic nominee Joe Biden with more than 9 million ballots already cast, eclipsing the state's total turnout from the 2016 presidential election.
Harris County, home to the city of Houston and about 4.7 million people, is the third most populous county in the United States. It currently has 10 drive-through polling sites, which are available to all voters.
The Texas Supreme Court on Sunday rejected a nearly identical bid by the same plaintiffs to halt drive-through voting in Harris County. The same court also previously denied similar challenges brought by the Texas Republican Party and the Harris County Republican Party.
The plaintiffs in Monday's case say the county does not have the authority to decide election procedures and that it has violated the U.S. Constitution's Equal Protection Clause because voters in other Texas counties do not have the chance to take part in drive-through voting.
"MAKE OR BREAK TEXAS"
Sarah and Dan Jones were among the protesters outside of the federal courthouse in Houston on Monday morning, and brought their four children, ages 10 to six months.
They voted at a drive-through site a few weeks ago and found out Saturday their ballots were being challenged, they said.
“I’ve never felt so important in my life,” said Sarah Jones, 32. “Harris County can make or break Texas.”
Both voted for Biden. Dan Jones, 38, said he also voted for Hemphill, one of the plaintiffs.
“I voted for her and she’s trying to get my ballot thrown out," he said.
A lawyer for the plaintiffs, Jared Woodfill, said on Sunday they may eventually take their fight all the way to the U.S. Supreme Court.
With early voter turnout setting a record and U.S. business districts boarding up for fear of election unrest, Trump and Biden stumped on the campaign's last day on Monday in states expected to decide who wins.
Hundreds of legal challenges have been brought in the months leading up to Tuesday's Election Day over how Americans can cast their ballots. Democrats have generally tried to ease access to mail-in and other alternatives to in-person voting, while Trump has repeatedly made unfounded attacks on mail-in voting, claiming it leads to fraud.
Hanen was appointed by President George W. Bush, a Republican.
Groups including the American Civil Liberties Union are asking to intervene in the litigation, saying the plaintiffs want to undermine the election and suppress votes.
"They are simply trying to see what frivolous argument they can make to try and invalidate votes," Harris County's top administrator, Democrat Lina Hidalgo, said on Sunday.
(Reporting by Jan Wolfe, Editing by Franklin Paul and Alistair Bell)