By Natalia Contreras, Votebeat and The Texas Tribune, and Karen Brooks Harper and William Melhado, The Texas Tribune
Texas’ efforts to make elections more transparent allows the public — in limited instances — to pierce the anonymity of the ballot and find out how people voted, undermining the secrecy essential to free elections.
The choices voters make in the private voting booth can later be identified in some cases using public, legally available records, a review by Votebeat and The Texas Tribune found.
Since 2020, requests for such records have skyrocketed, fueled by unsubstantiated concerns about widespread voter fraud, and Texas lawmakers have supported changes to make election records easier to access soon after elections.
County elections administrators, trying to fulfill activists’ demands for transparency, have also made information public that can make it easier to determine how specific people voted.
An effort to link a voter to specific ballot choices is more likely to succeed in circumstances involving less populous counties, small precincts, and low-turnout elections.
“What bothers me is that people cannot vote in secret in the United States,” said Williamson County District Attorney Shawn Dick about the potential lapses in ballot secrecy. “If people’s ballots don’t remain anonymous, that’s a huge affront to our system of government and our system of elections.”
Several election officials said there have been concerns and ongoing discussions about the possibility of people exploiting public records and data to detect or narrow down how individuals voted, particularly in smaller counties.
And the Texas Secretary of State’s office has been aware that publicly available information could be used to link a particular ballot to the voter who cast it, according to sources who spoke to Votebeat and the Tribune on the condition of anonymity because they weren’t authorized to speak publicly on the issue. Nonetheless, state lawmakers have spent the last several years making it easier to mine voter and ballot data.
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.
Election administration experts and voter advocates say Texas lawmakers need to find a better balance between transparency and voters’ ballot privacy — and clarify the roles county elections administrators and the Secretary of State’s office play in getting there.
“If we don’t share this information, we’re not able to determine whether or not the ballot is secure,” said Bob Stein, a political science professor at Rice University and an election administration expert. “On the other hand, if people think that these are things that shouldn’t be shared, then their confidence goes down.”
Earlier this month, the independent 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 GOP primary, provided by a source it did not name.
The site did not explain in detail how its source was able to find the ballot and connect it to Rinaldi.
State and county elections offices maintain an array of election records that are available via open records requests and even published online in some instances. That includes which candidates won individual precincts, where and by which method people voted, the original ballots they cast, and electronic images of those ballots. To be clear, voted ballots do not contain a voter’s name or identifying information such as identification numbers or Social Security numbers. Many kinds of identifying information must also be redacted from other election records before they are released.
But in certain circumstances, finding someone’s ballot is possible by identifying and cross-referencing a series of variables that are public.
There was no personally identifying information printed on the ballot Current Revolt claimed was Rinaldi’s, so it’s impossible to say with 100% certainty that it was his. Rinaldi has neither confirmed nor denied that it was his ballot.
Rinaldi did not respond to requests for comment from Votebeat and the Tribune. The Republican Party of Texas referred Votebeat and the Tribune to a statement it released on social media saying that the party’s legal counsel advised Rinaldi not to comment and that it was “investigating potential civil and criminal acts including defamation” against Current Revolt.
The state’s chief elections officer is Secretary of State Jane Nelson, who is appointed by the governor and confirmed by the Senate. Her agency declined to comment on whether officials there knew about the vulnerability in ballot secrecy. In a public statement last week, Nelson’s office said county elections administrators need to balance ballot secrecy with election transparency — but the statement provided them no guidance on how to do that.
On Tuesday, after Votebeat and the Tribune told her office about vulnerabilities with ballot secrecy, Nelson said in an emailed statement that she was advising county elections administrators that “they have a duty to redact personally identifiable information” but did not detail what that includes or what information may be redacted.
“No one should have their ballot privacy compromised,” Nelson said.
Texas election records are an open book
Texas stands out among other states for its expansive approach to making election records public, an effort to provide transparency in a state where unsupported theories about election fraud are widespread.
The public can obtain data from electronic poll books used at individual voting precincts, showing which voters have cast ballots and detailing exactly when they did so; “cast vote records,” the electronic representation of how voters voted; and ballot images, which are copies of actual ballots as marked by voters.
By law, counties are supposed to redact identifiable information such as Social Security numbers, state identification numbers, birthdates and or phone numbers. In the case of ballots, they are also supposed to redact names.
The push for increased transparency gained momentum after the 2020 presidential election when former President Donald Trump launched a campaign, bolstered by two fellow Republicans, Texas Attorney General Ken Paxton and U.S. Sen. Ted Cruz, to convince voters the 2020 election was stolen from him.
Conservative activists searching for proof of voter fraud routinely began requesting original voted ballots and cast-vote records in almost every Texas county.
At the time, voted ballots, by law, had to be kept secure and were not available for 22 months after an election. But in August 2022, Paxton — who had tried unsuccessfully to overturn the 2020 presidential election results in four battleground states outside his jurisdiction — released a nonbinding 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.
During the 2023 legislative session, lawmakers overwhelmingly passed House Bill 5180, allowing public access to ballot images, cast-vote records, and the original voted ballot just 61 days after election day.
“This is about giving our citizens confidence in their elections while protecting our election administrators,” the bill’s author, state Rep. Terry M. Wilson, R-Marble Falls, said during a committee hearing on the legislation in April 2023.
Supporters argued this bill was necessary for third-party groups to conduct audits of elections in a timely manner.
Christina Adkins, then acting director of the Secretary of State’s elections division, told lawmakers during the hearing that the bill provided much needed clarity for the state agency.
But opponents of the legislation noted that election departments in Texas and across the country had seen an increase since the 2020 presidential election in records requests seeking more technical information about an election.
Stephanie Swanson, the Austin-area director of the League of Women Voters, warned that the legislation would result in an even greater flood of public records requests, which could be used as a means of voter intimidation.
“If election records are no longer under the control of election officials, this can lead to a significant risk of the records being lost, stolen, altered, compromised, or destroyed,” Swanson said.
Election administrators look to the Legislature for help
One potential solution pits the state against the counties in terms of where the responsibility lies to fix the problem.
On Friday, the Texas Association of Election Administrators as well as county and district clerks sent a letter to the Texas Senate State Affairs Committee, which deals with voting issues, suggesting that there could be changes to what’s considered “identifiable” information.
“County election officials are working with the Secretary of State’s office to improve the redaction of information that can be used to identify a voter and his/her precinct,” the letter reads.
Dick, the Williamson County prosecutor, said his county is aware of possible ballot secrecy issues and said that the attorney general’s office is looking into the matter. A spokesperson for Paxton’s office did not respond to requests for comment.
A ballot Dick previously cast in a Texas election was apparently included as evidence in an unrelated lawsuit filed earlier this year, also accusing Texas of ballot security vulnerabilities.
That lawsuit alleges that Nelson and election officials from three Central Texas counties violated voters’ equal protection rights by allowing the public to track down a voter’s ballot through a unique identification number. The plaintiffs did not describe the method in the lawsuit and declined to share it with Votebeat and the Tribune. It could not be verified.
The plaintiffs in the lawsuit, including Laura Pressley, have made similar allegations in past lawsuits that courts have dismissed. Since at least 2014, when she lost a race for the Austin City Council, Pressley has frequently sued counties, election administrators, and the Texas Secretary of State for not following the Texas Election Code as she interprets it. She rarely succeeds in court.
She and her allies have long pushed for the state to get rid of the popular countywide polling place program — used by more than 90 jurisdictions in the state. The Texas Senate State Affairs Committee is set to hear testimony on election issues, including the use of the program on Wednesday in Austin.
Pressley has also advocated for counties to stop using electronic voting equipment and has demanded the use of sequentially numbered, preprinted ballots, which experts say could further threaten ballot privacy.
If businesses or politicians are able to track down how individuals voted, Dick said, it would change the way those entities target voters for profit and campaign purposes — and could open the door to voter intimidation.
Dick said the issue needs to be resolved immediately but he doesn’t believe the answer is to shut down public access to ballot records and voting information.
Other states, too, have grappled with whether and when to make cast vote records and ballot images public.
In South Carolina, a judge earlier this month shot down a group’s request to examine voters’ cast vote records from the 2020 presidential election. The judge determined that if the documents become public under the Freedom of Information Act, it would violate voters’ right to a secret ballot in the state.
In North Carolina, the State Board of Elections recently removed the precinct-level details of election results for each county from its website. The state argued that because of the particularly low turnout in the state’s recent primary, it could be too easy to determine how some people voted.
In Texas, some county elections administrators say the Legislature needs to craft a law that settles what information must be made public so elections administration is transparent — as well as what can be withheld, so ballot secrecy is protected. Without that, they say, vulnerabilities will persist.
In addition, there are other steps lawmakers could take that would make it harder to breach voters’ privacy, said Jennifer Doinoff, Hays County elections administrator and the president of the Texas Association of Elections Administrators.
For example, she said, they could change the law to raise the minimum number of voters allowed in a precinct, which would make it more difficult to link a ballot to a specific voter. Lawmakers could also rethink how to release information about voters in small precincts, or not release specific polling location records, she said.
As things stand now, Doinoff said, “It’s going to be a lot of attorney general opinions, and it’s going to be a lot of working with the state legislators to figure out what is releasable and what’s not.”
Natalia Contreras covers election administration and voting access for Votebeat in partnership with the Texas Tribune. She is based in Corpus Christi. Contact Natalia at [email protected].
This story was reported in partnership with Votebeat, a nonpartisan news organization covering local election administration and voting access. Sign up for Votebeat Texas’ free newsletters here.
Disclosure: Rice University and 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.
This article originally appeared in The Texas Tribune at https://www.texastribune.org/2024/05/29/texas-ballot-compromised-election-security-transparency/.
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