Did Election Board Overstep With Pre-Numbered Ballot Decision?

Tarrant County courthouse | Image by travelview/Getty Images

Tarrant County commissioners were briefed on Tuesday about the intersection of the roles and responsibilities of the commissioners court, county election board, county election commission, and the elections administrator regarding election management for the county.

As previously reported by The Dallas Express, the Tarrant County Election Board voted on April 2 to use pre-numbered ballots for the upcoming election in a bid to ensure the integrity of the results.

Currently, Tarrant County voters are given blank, un-numbered thermal ballots created to be compatible with the county’s voting equipment. When the vote is cast, the machines generate and mark the ballots with a unique identifying number. The board’s decision makes it so the ballots provided to voters will be pre-labeled with consecutive numbers. Each ballot will still be assigned a unique number when entered into the machines.

Benefits of the measure include the addition of an extra layer of security, according to proponents, and simplification of the auditing process in the case of voter fraud inquiries.

Skeptics have warned that pre-numbering the ballots opens up greater opportunity for vote buying or voter coercion, as reported by the Fort Worth Star-Telegram.

Other opponents argued it would result in unnecessary spending: While the county must buy enough paper for every registered voter (approximately 1.3 million people) under both its current numbering method and the proposed new one, the latter would mean that un-cast ballots could not be recycled for the next election. Per the Star-Telegram, the county estimated that about 400,000 unused ballots would have to be thrown away, at a cost of around $13,000.

Nonetheless, the measure passed 4 to 1. The one vote against the measure was by Tarrant County Democratic Party Chair Crystal Gayden, who argued that it would be a waste of taxpayers’ money.

The election board comprises Gayden, Tarrant County Judge O’Hare, Sheriff Bill Waybourn, Republican Party Chair Bo French, and appointed Elections Administrator Clint Ludwig. Per KERA News, Ludwig recused himself from the vote on the issue.

On Tuesday, much of the discussion within the commissioners court revolved around the power balance between the election board and the elections administrator — namely whether the former had overstepped in its decision to require the use of certain ballots. Precinct 2 Commissioner Alisa Simmons requested a briefing from the district attorney’s office to clarify the matter.

“I’ve been asked to come and speak to the courthouse in an open session today to help untangle some of the responsibilities of these different entities in regard to how elections are run in the county,” lawyer Mark Kratovil began during the April 16 session.

At issue in particular is whether the election board actually has the authority to compel the elections administrator to comply with its decision regarding the use of pre-numbered ballots.

Simmons posed this question to Kratovil.

“To the extent that you’re asking me to apply this to a specific situation, I would say that that’s a privileged conversation that would best be left for closed session,” Kratovil told Simmons.

Simmons demanded that he answer the question, but Kratovil advised that he could only answer if the commissioners court waived the attorney-client privilege. The motion to waive attorney-client privilege failed by a vote of 3-2, and caused considerable tension between Simmons and O’Hare.

In the end, Kratovil did not answer the question during the open session of the meeting, but Simmons claimed that during an earlier private meeting with Kratovil in her office, the lawyer had advised that the elections administrator, Ludwig, could honor the request to use the pre-numbered ballots or decide to continue using blank ballots.

Acknowledging that the election board approves the procurement of election supplies, Kratovil explained that “the elections administrator is then in some cases an employee of the county, in some cases, an officer of the county, and in conducting elections he would likely be deemed an officer of the county. There’s some authority he has then in terms of how to carry out the job.”

Following the briefing, Ludwig said that he would respect the wishes of the board.

“I can provide free, fair, secure elections with pre-numbered ballots, and I can do it without pre-numbered ballots,” Ludwig said, per the Star-Telegram. “If it is the wish of the election board, the election commission, and the court that we have numbers, then I will provide that. If it is the wish that we don’t have numbers, then I can do it that way as well. I will do my job. And I will provide it with the means that I’m asked to do it in.”

KERA News spoke with election attorney Beth Stevens in light of the discussion, who said, “The Election Board took its power to procure election materials, and the election administrator’s power to decide how to number ballots, and ‘sort of mushed those two together in their vote,'” as the outlet put it.

“The decision how to number ballots is a task that falls directly to the elections official — in this case, the elections administrator,” Stevens explained via KERA.

Referencing a 2022 opinion issued by Texas Attorney General Ken Paxton regarding ballot numbering in Hood County, which read, “the elections administrator is the authority responsible for having the official ballot prepared, including selecting the ballot numbering method.”

“It’s an interesting situation given that the elections administrator, one, recused himself from the vote of the board, and then two, seemed to sort of concede the authority to the Election Board when it doesn’t seem that the Election Board had the authority to do that,” Stevens remarked, per KERA.

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