Texas ballot secrecy issue draws attention in Legislature, courts

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Texas officials had to issue emergency guidance this year to patch holes in new election transparency laws that threatened to expose the choices people made on their ballots.

Now that the 2024 election is over, the issue of protecting ballot secrecy is receiving renewed attention in both the courts and the legislature.

A national conservative nonprofit last week filed a federal lawsuit against Harris County, alleging the county isn’t taking steps to protect voters’ right to a secret ballot. Another case involving an activist who claims to have uncovered the ballot choices of more than 60,000 voters is ongoing.

And Republican state Rep. Ryan Guillen proposed a bill this month that would make it a felony for individuals to obtain information that could tie voters back to their ballot choices.

It’s the first concrete sign that lawmakers plan to tackle the ballot secrecy issue since an investigation by Votebeat and the Texas Tribune in May showed how laws touted as increasing election transparency have made it possible — in limited instances — to determine how individuals voted, using publicly available records and data.

How push for records unlocked voters’ choices

The push for increased transparency gained momentum after the 2020 presidential election when then-former President Donald Trump successfully convinced activists statewide that the election had been stolen from him. In an effort to uncover evidence of voter fraud, they began filing open-records requests for original voted ballots and cast-vote records — anonymized electronic representations of how each voter voted — in almost every Texas county.

At the time, the law said voted ballots had to be kept private for 22 months after an election. But in 2022, Texas Attorney General Ken Paxton released a non-binding legal opinion advising county officials to release voted ballots as soon as they are counted, while redacting any information that could identify the voter.

After at least three counties challenged Paxton’s advice in court, the Texas Legislature rewrote the law to allow public access to ballot images, cast-vote records, and the original voted ballot just 61 days after an election.

In the past three years, the requests for election records have become more expansive, election officials said. Activists are now requesting copies of voting equipment manuals, data from election servers, and other information produced by voting equipment, including electronic poll books used to check in voters at polling locations.

Officials came face to face with the risks of releasing these records in May, when the conservative news site Current Revolt published what it said was the image of the ballot that former Republican Party of Texas Chair Matt Rinaldi cast in the March 5 Republican primary.

The site did not explain how it obtained the ballot, or how it linked it to Rinaldi, but Votebeat and the Tribune were able to verify that such a match was possible. Using public records, reporters were able to identify the choices of voters who’d cast ballots in precincts with a small number of voters.

That same month, longtime conservative activist Laura Pressley claimed in a federal lawsuit that she had discovered an “algorithmic pattern” in public records that allowed her to link 60,000 Williamson County voters to their ballot choices. Her lawsuit, which is still pending, alleges that a failure by state and local election officials to comply with a ballot-numbering law has allowed her to match voters to their ballots.

Pressley has been reluctant to share details of the purported “algorithmic pattern” with state officials. Still, the Secretary of State’s office this year directed election officials who use electronic poll books to print serial numbers on the ballots to stop doing so, and to switch to paper with preprinted ballot numbers, which must be redacted before being released to requestors.

How will the Legislature respond?

State and local election officials said they had been concerned about the risks to ballot secrecy for some time as lawmakers made it easier to access voter data. But it wasn’t until after the May disclosures that Paxton and Secretary of State Jane Nelson issued additional guidance to election officials, ordering more redactions and instructing them to stop releasing information that can help expose how people voted.

Conservative election activists have been vocal about their opposition to redactions and lengthening the timeline to make ballot images public. Such moves, they say, would prevent them from performing their own election audits.

In a legislative hearing this summer, state Sen. Paul Bettencourt, a Republican from Houston, said he believed there could be bipartisan support for other measures, such as a bill that would require information from small precincts to be aggregated into larger ones. That was one of the solutions outlined by Christina Adkins, the elections division director in the Secretary of State’s office, to better anonymize voters who cast ballots in precincts where few others are cast.

Bettencourt could not be reached for comment. A spokesperson for his office told Votebeat in an email that he plans to file legislation to try to solve ballot secrecy concerns.

As of late last week, Guillen’s bill was the only one filed related to the issue. Guillen, of Rio Grande City, did not respond to a request for an interview.

State Rep. Terry Wilson, R-Marble Falls, and Rep. John Bucy, D-Austin, co-authored the bill in 2023 that expanded access to election records. Wilson did not respond to Votebeat’s request for comment. In an emailed statement, Bucy said “ballot secrecy is a foundational feature of our electoral system” and that “robust conversations” between the secretary of state’s office and local elections officials are ongoing. “We intend to continue that work and provide them the support and tools they need to protect voter privacy,” he said.

Some voting rights advocates say that without some action from lawmakers, voters will be vulnerable to breaches of privacy, harassment, and intimidation.

“You’re guaranteed a secret ballot. That is something that you take into the polling place with you. And if you can’t count on that, then our concern would be that folks who might otherwise vote, may not due to fear,” said Elisabeth MacNamara, vice president of advocacy for the League of Women Voters of Texas.

Latest lawsuit targets countywide polling place program

The federal lawsuit against Harris County filed last week by the national conservative nonprofit group Public Interest Legal Foundation alleges that the county’s voting system violated at least three voters’ right to a secret ballot. The plaintiffs allege that Harris County officials failed to follow the state’s directive and released unredacted election records.

The suit says the county’s use of the countywide polling place program — which nearly 100 Texas counties use — along with publicly available records puts voters’ secret ballots at risk. County election officials and officials with the Texas Secretary of State have previously denied that the countywide polling place program poses a threat to ballot secrecy. State Sen. Bob Hall, R-​​Edgewood, has filed legislation to eliminate the program.

Caroline Kane, a voter in Harris County who was the GOP candidate for a U.S. House seat, states in the lawsuit that the ballot she cast in the March 5 Republican primary was disclosed and made public. The lawsuit states that she is “concerned about the negative effects of the lack of secrecy regarding her ballot and potentially facing retribution from those who have discovered her ballot.” Kane lost to Democrat Lizzie Fletcher.

Kane and the two other plaintiffs are asking the court to prevent Harris County from releasing voters’ identifiable information in ballot images and electronic poll book data. They’re also asking the court to order county election officials to “abstain from viewing information that may lead to the discovery of a voter’s ballot and from identifying to anyone a voter’s vote or ballot.”

The lawsuit was filed in the U.S. District Court in Houston.

A spokesperson for the Public Interest Legal Foundation said in an email that the organization is “seeking a ruling that the US Constitution supports the right to a secret ballot and that right is being violated. We have no exact proposed solution. That is up to the county or state.”

Harris County officials did not respond to requests for comment.

Local officials are left with an arduous task

While lawmakers have said little about the issue — outside of two public hearings in the spring — local election officials are scrambling to ensure that voters’ ballot secrecy is protected.

Linking a voter to their specific ballot choices isn’t easy. It requires a process of elimination and the use of multiple public records. It is more likely to succeed in circumstances involving less populous counties, small precincts, and low-turnout elections.

Regardless, pending legislative action, all counties have to follow directives from the secretary of state, spending significant time and resources on redacting any type of information that could tie a voter to their ballot choices. In some counties, these steps have required additional manpower and costly computer software.

In Guadalupe County, east of San Antonio, election administrator Lisa Hayes is bracing herself for an onslaught of public records requests. While working to meet state-mandated post-election deadlines and preparing for local runoff elections, she’s also trying to figure out how she’ll handle the redaction of more than 80,000 ballots cast this November. She may purchase special software or resort to printing out the documents, redacting information by hand with a black marker, and scanning the ballots back in.

“It’s going to be a huge undertaking,” she said, adding that she wished lawmakers would clarify where these steps “fall in the priority list” of deadlines, requirements, and advisories county elections offices are required to adhere to.

Tammy Patrick, CEO of programs at the National Association of Election Officials, said further guidance from the legislature and the secretary of state is necessary to help counties prevent errors when redacting thousands of ballots

“Because if you have one county doing it one way, and across the state, it’s being done 10 other ways, that’s going to cause additional confusion and problems like lawsuits on equal protection and other issues,” Patrick said.

Natalia Contreras covers election administration and voting access for Votebeat in partnership with the Texas Tribune. Contact Natalia at ncontreras@votebeat.org.

Disclosure: The League of Women Voters of Texas, and the Texas Secretary of State have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.