The opinion comes in response to two inquiries, one from state Sen. Kelly Hancock (R-North Richland Hills) and one from state Rep. Matt Krause (R-Fort Worth).
“Members of the legislature have expressed interest in researching the results of certain Texas elections in order to promote public confidence in Texas elections,” reads Hancock’s letter. “However, election administrators and district attorneys have cited certain sections of the Election Code as preventing the release of materials necessary to conduct such an audit.”
Members of the Texas Legislature can access records not publicly available through traditional public information requests, but Texas Election Code sets a 22-month buffer between an election and the public availability of the records from the contest.
A 1988 opinion from former attorney general Jim Mattox stated that ballots must remain in the lockbox until that window closes. “[I]t is our opinion that a request made during the retention period to inspect voted ballots must be treated as a request to inspect the ballots when the retention period expires,” Mattox wrote.
That presupposition is exactly what Hancock and Krause are disputing in their inquiries.
“Even if [‘anonymous ballots’ cannot be publicly available], legislators may examine the voted ballots in light of [Texas code] granting a special right of access to legislators for legislative purposes, even to confidential records,” Krause asserts.
He then asks, “Thus, if a legislator requests to inspect or to obtain copies of anonymous voted ballots for legislative purposes, is the custodian of election records authorized to access such records for purposes of fulfilling the request?”
Paxton decided in the affirmative, writing, “By expressly requiring the custodian to provide public access to such records, the Legislature authorized entry into the locked ballot box for such purpose during the 22-month period.”
“Thus, members of the public and legislators may inspect or obtain copies of anonymous voted ballots during the 22-month preservation period.”
“Personally identifiable information” on the ballots, he stipulated, is protected from public viewing. “Any confidential information on an anonymous voted ballot must be redacted for purposes of disclosure in order to protect the constitutional right to a secret ballot.”
To accomplish this, the secretary of state and custodians of election records are tasked with laying out a set of procedures to ensure public access to ballots while redacting personal information.
Due to the opinion, which is legally non-binding but serves as official guidance from the attorney general, legislators will now be able to inspect voted ballots within 22 months of contest and compare them with the official results.
Since the 2020 election, calls for increased electoral safeguards and oversight have become the top focus among Republican priorities. Last year, the secretary of state audited the 2020 November general election results in the two largest Democratic and two largest Republican counties in Texas.
The Texas Legislature’s marquee election reform bill from last year requires that such audits continue regularly. The four counties selected for review after this year’s general election are Cameron, Eastland, Guadalupe, and Harris Counties.
This new guidance allows a prompter audit at a more granular level than the procedure laid out in the 2021 law.
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Brad Johnson is a senior reporter for The Texan and an Ohio native who graduated from the University of Cincinnati in 2017. He is an avid sports fan who most enjoys watching his favorite teams continue their title drought throughout his cognizant lifetime. In his free time, you may find Brad quoting Monty Python productions and trying to calculate the airspeed velocity of an unladen swallow.