Texas Attorney General Ken Paxton released an opinion allowing for public access to voting records in the weeks following an election, overturning a previous opinion over three decades old.
Replying to letters from Texas State Senator Kelly Hancock and Representative Matt Krause, Paxton allowed for increased transparency in future elections by opening the ballot box for citizen review.
Representative Krause explained in his letter, “In order to promote public confidence in Texas elections, members of the public as well as members of the legislature are interested in auditing the results of Texas elections.”
However, efforts to conduct timely audits of elections had been stymied by “election administrators … preventing the release of materials necessary to conduct such an audit,” Krause added.
Such officials suggested that the ballots were confidential and therefore not releasable to the public for any purpose.
Paxton replied that, contrary to election officials’ claims, “Anonymous voted ballots are election records under the Election Code, and the Legislature has established procedures aimed at both preserving those records and granting public access to them.”
“By demanding that the public have access to election records, including anonymous voted ballots,” Paxton noted in his opinion, “the Legislature thereby authorized the election records custodian’s entry to the locked ballot box during the 22-month preservation period for such purposes.”
Both Texas and United States law requires that election records be kept for a 22-month preservation period in case there is a recount or pending legal cases. Paxton’s opinion suggested that during that time, members of the public can, by application to the custodian, access the voted ballots.
However, Paxton carefully observed that any ballots viewed must have any personally identifiable information redacted.
“It is important to note that Texas law has long established that all elections shall be by secret ballot,” the attorney general explained.
Paxton emphasized that his legal opinion applies only to ballots that have “been stripped of any information that could be used to reveal the identity of the voter.”
Previously, citizens were not allowed to examine ballots regardless of whether they had been redacted.
In 1988, Texas Attorney General Jim Mattox issued a legal opinion insisting that “voted ballots from primary elections are statutorily exempt from public inspection only during the prescribed retention period.”
Still, Mattox allowed, “Any ballots retained by the custodian after that period are available for public inspection.”
Paxton, however, disagreed with Mattox’s opinion.
He explained that an “in-depth review by this office of the issues raised in that decision results in the opposite conclusion. … [it] is therefore overruled to the extent inconsistent with this opinion.”
Paxton’s opinion opens the door for the public and legislators to audit the election immediately instead of having to wait nearly two years to do so.
With concerns lingering about the integrity of elections at both a state and federal level, the increased transparency could soon be called upon as midterms approach.