Texas Tells Local Election Officials to Stop Releasing Information That Exposes How Some People Vote

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 covers election administration and voting access for Votebeat in partnership with The Texas Tribune. This coverage is made possible through Votebeat, a nonpartisan news organization covering local election administration and voting access.  Sign up for Votebeat Texas’ free newsletters here.  This story is published courtesy of the Texas Tribune. The Texas Tribune is a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.