The Texas Supreme Court on Sunday rejected a request by Republican activists and candidates to toss out 127,000 votes from drive-thru polling sites in Harris County, where Houston is located.

Without an order or opinion, the all-Republican court denied the request to throw out the early balloting from the state’s most populous and largely Democratic county.

The Republicans who brought the suit — Conservative Steven Hotze and Harris County Republicans state Representative Steve Toth, congressional candidate Wendell Champion and judicial candidate Sharon Hemphill — have argued that drive-thru voting violates the U.S. constitution, a point it plans to argue in a similar lawsuit in federal court for which a hearing is set on Monday morning, according to the Texas Tribune.

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Ten percent of in-person early voting in the county was done through ten drive-thru voting centers. The county first experimented with drive-thru voting during the July primary runoff to encourage voting among people concerned about entering polling places during the coronavirus pandemic. 

Voters are given an electronic tablet through their car windows to cast ballots after having their registrations and identifications confirmed by poll workers.

Republicans claimed that the drive-thru program was an expansion of curbside voting and therefore should only be available for voters with disabilities under state election law. Hotze and Hemphill, with the Harris County Republican Party, had previously unsuccessfully brought the same argument before the state Supreme Court before early voting began.

Texas election law has long allowed for curbside voting for voters who are “physically unable to enter the polling place without personal assistance or likelihood of injuring the voter’s health.” 

The Harris County Clerk’s office argued that the drive-thru centers are separate polling places, differing from curbside spots which are available at every polling site upon request, and can therefore be available to all voters. 

The Texas secretary of states’ office had approved of drive-thru voting, the clerk argued in a filing with the Supreme Court in the earlier lawsuit. According to court transcripts, Keith Ingram, the state’s chief election official, said in a court hearing last month in a separate lawsuit that drive-thru voting is “a creative approach that is probably okay legally.”

Even if the drive-thru locations are illegal, Texas’ election code and court precedent say ballots cast via drive-thru should still be counted, the county argued.

“More than a century of Texas case law requires that votes be counted even if election official[s] violate directory election laws,” the county said in a Friday filing.

It is unclear if the votes will be counted as the suit makes its way before the federal courts. Republicans asked the district court this week to throw out the votes, arguing that drive-thru voting violates the U.S. Constitution, while Texas’ Democratic U.S. Senate candidate MJ Hegar’s campaign and other Democratic campaign groups have sought intervention in the lawsuit.

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