Texas tells local election officials to withhold information that could undermine ballot secrecy

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Texas’ top election official Thursday issued emergency guidance to counties aimed at protecting ballot privacy, after Votebeat and The Texas Tribune confirmed that the private choices some voters make can later be identified using public, legally available records.

“It is imperative that we make every effort possible to provide protections to voters while balancing the public’s interest in transparent elections,” Christina Adkins, the election division director for the Texas Secretary of State’s Office, wrote in the memo to county election officials.

Separately, state Attorney General Ken Paxton on Thursday released a legal opinion stressing that any disclosure of election records must be done in a way that preserves the privacy of a voter’s choices.

Both Paxton and Nelson emphasized that Texas voters have an overarching right to a secret ballot. It is “unacceptable for any voter to have their ballot choices publicized,” Nelson said in a statement.

In testimony to state lawmakers last week , Adkins confirmed reporting from Votebeat and the Tribune that found some voters could be tied to their ballots through a combination of publicly available information, which lawmakers and county officials have made easier to access in recent years in the name of election transparency.

She also acknowledged that election officials had been worried that the state’s push for more transparency around elections would compromise ballot secrecy.

The emergency guidance is an attempt to close off the public’s ability to link some voters with their ballot choices. Last month, an independent news site published what it said was the ballot of former Republican Party of Texas Chair Matt Rinaldi, cast in the March 5 GOP primary. The site didn’t fully explain how it linked the ballot image to Rinaldi, who has neither confirmed nor denied that it was his ballot.

Votebeat and the Tribune were able to verify and replicate a series of steps to identify a specific person’s ballot choices using public records. But to protect the secrecy of the ballot, the two news outlets are not detailing the precise information needed or the process used to match ballot images with individual voters.

Lawmakers made election records more accessible

Soon after the November 2020 election, as former President Donald Trump and his allies promoted baseless theories that his reelection loss was caused by voting fraud, the number of election-related public record requests increased.

Many of them came from people asking to inspect original voted ballots, ballot images, and “cast vote records,” the electronic records of a voter’s choices.

During the 2023 Texas legislative session, lawmakers responding to pressure from conservatives seeking more access to election records overwhelmingly passed House Bill 5180 , allowing public access to those records just 61 days after election day.

That created a way for people to use public records to match different pieces of information about where, when, and how voters cast ballots. In some circumstances, the combination of data points was enough to link a voter to their ballot.

In her guidance to county officials Thursday, Adkins said the steps necessary to protect a voter’s identity could vary, depending on the type of election, the turnout, and details of the request, because a voter’s identity can be deduced using a combination of data points through a process of elimination.

When posting records voluntarily to the county website to make them publicly available, election officials should “redact any information on the precinct election records or on the ballot image that identifies the location at which a voter voted” before posting, Adkins wrote.

When responding to a specific request to release election records, Adkins wrote, county officials will have to weigh the specific facts of the situation. The information election officials were told they should consider withholding includes where voters cast ballots, the dates early voting ballots are received, and some pre-printed ballot numbers.

County officials would have to ask the requester to agree to the redactions, or seek an open records ruling from the state attorney general authorizing them in those specific circumstances, Adkins said.

The president of the state’s association of election administrators told Votebeat that the guidance formalizes short-term solutions election officials had previously discussed with the Secretary of State’s Office, but that lawmakers still should take additional steps.

“I definitely think that the Legislature will need to look at this and try to make more long-term changes to the law for ballot secrecy,” said Jennifer Doinoff, the Hays County elections administrator and association president.

Changes the Legislature could make to further protect ballot secrecy include aggregating information from smaller precincts into larger ones and expanding the number of voters in precincts, which could make it more difficult to link a ballot to a voter. Currently, county election precincts must have at least 100 but not more than 5,000 voters. However, in some large counties, a precinct can have as few as 50 voters.

Paxton intervenes in Tarrant County records request

The legal opinion Paxton released on Thursday is in response to a public records request submitted to the Tarrant County elections department seeking registered voters’ history over a 12-year period, including the voter’s ID, voter name, primary address and the precinct number or polling place where they voted.

The county attorney’s office sought an opinion from Paxton on whether such information was exempted from disclosure because it contains information that could threaten a voter’s ballot secrecy.

After review, Paxton’s office determined that “election records custodians must redact such personally identifiable information to protect the constitutional right to a secret ballot in Texas.”

“Now that we’ve seen how some of the public information is being utilized out there, we have to take extra steps to ensure that ballot secrecy remains,” Doinoff said, adding that the guidance from state officials now affirms that “we have the right to redact information that’s going to allow somebody to see how somebody has voted.”

Natalia Contreras is a reporter for Votebeat in partnership with the Texas Tribune. Contact Natalia at ncontreras@votebeat.org .