Texas Election Code Sec. 66.058 requires election officials to preserve records, including ballots, for 22 months after Election Day, after which officials may destroy those records. During the retention period, ballots are to be kept in a secure container and officials who allow “unauthorized” handling of the ballots can be charged with a Class A misdemeanor.
County elections officials have long interpreted the preservation rules as also preventing inspection of the ballots through open records requests and have only allowed access with a court order. In 2021 two state legislators, Sen. Kelly Hancock (R-North Richland Hills) and former representative Matt Krause, requested an opinion from Paxton on the matter.
In his opinion issued last August, Paxton wrote that while one section of state election code established the 22-month preservation period, another section designated “anonymous voted ballots” and all other election records as public information.
“Voted ballots become public information once ‘the custodian completes the unofficial tabulation of the results for that precinct,’” wrote Paxton. “‘[A]n election record that is public information shall be made available to the public during the regular business hours of the record’s custodian.’”
After three citizens last August filed public information requests for ballot images from elections in 2020 through the 2022 primary, Williamson County appealed to the AG’s office to prevent them from viewing the ballots. In a response dated November 9, 2022, the AG’s office reiterated the opinion that “members of the public may inspect or obtain copies” of election records during the 22-month preservation period.
In a lawsuit filed in Travis County on December 14, 2022, the Williamson County attorney’s office under Republican Dee Hobbs argues that Paxton exceeded his authority and that his opinion conflicts with state law. Although the county refers to what it calls the “plain language” of the election code, Paxton’s opinion notes that the code in question only mentions “unauthorized access” and does not expressly prohibit public access to the records, and that “the Legislature authorized entry into the locked ballot box for such purpose during the 22-month period.”
The county is requesting that the 353rd District Court declare the ballots confidential and allow the election records to be withheld from the public until the 22-month preservation period ends.
Under state code, attorneys for candidates contesting elections may inspect unredacted election records either at the local district attorney’s office or in the elections office, but most officials are unprepared to provide such access to citizens.
Krause told The Texan that he had asked to inspect ballots in Tarrant County after the 2020 election but was told that even as a state legislator he would need a court order to gain access. While praising the AG’s interpretation, Krause acknowledged the challenge for elections officials.
“I understand the concerns from custodians who face criminal liabilities if anything happens and I get why they want to keep those secure,” said Krause. “But in this instance, I feel those concerns are outweighed by the right of citizens to view those ballots to ensure election integrity and I think access is in the best interest of everybody. I think election officials will be able to figure out a way to give the public access to those ballots in a secure and confidential way.”
Since 2020, voters have increasingly sought access to election records amid claims of voter fraud or mishandled elections. After an equipment malfunction that prevented voters from being identified to their correct precincts in 2020, Williamson County Commissioners Court questioned the results but ultimately voted to approve canvass of the county’s elections.
Last year, the Texas Secretary of State’s office conducted audits of the 2020 elections in the most populous Democratic and Republican counties. But final reports were not completed until December 2022, long past the deadlines for filing election contests or seeking other legal remedies.
Last month, state Sen. Nathan Johnson (D-Dallas) filed legislation that will specify that voted ballots are confidential and not subject to disclosure until after the 22-month preservation period.
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Holly Hansen is a regional reporter for The Texan living in Harris County. Her former column, “All In Perspective” ran in The Georgetown Advocate, Jarrell Star Ledger, and The Hill Country News, and she has contributed to a variety of Texas digital media outlets. She graduated summa cum laude from the University of Central Florida with a degree in History, and in addition to writing about politics and policy, also writes about faith and culture.