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Paxton’s legal guidance on ballots contradicts advice he gave counties five days earlier

Texas attorney general’s office sent multiple memos this summer instructing election officials to follow longtime precedent in securing ballots after elections. Then he changed his mind.

A pile of boxes and stacks of paper in an office

Boxes of ballots from the 2020 GOP primary elections sit in the room where an election integrity group last month recounted votes from a March 2020 election at the Tarrant County Elections Administration building in Fort Worth, Texas.

Shelby Tauber for The Texas Tribune

Texas Attorney General Ken Paxton stunned election administrators across the state last week when he released an opinion that, in theory, would allow anyone to access ballots almost immediately after they were counted. 

Records show that, as recently as five days before the office released that opinion, it was providing the exact opposite guidance to counties. 

“The information at issue is confidential for at least 22 months after election day,” a public records opinion from the office, dated Aug. 12, reads. “Accordingly, the district attorney’s office must withhold the information at issue.” 

Then, five days later, Paxton released his new opinion. “Members of the public” the new guidance read, are welcome to inspect “voted ballots during the 22-month preservation period.”

“What a difference five days makes,” said Chris Davis, elections administrator in Williamson County. 

The record shows that Tarrant County did not receive the opinion telling it not to release the ballots until Aug. 22 — five days after Paxton issued his new opinion. This left the county  unsure of how to proceed, and by that time, it had already challenged the new opinion in court. Paxton’s office did not respond to questions about what, if anything, changed in the five day period between the contradictory opinions. 

The Aug. 12 opinion, which Votebeat obtained through a public records request, was one of at least three this summer in which Paxton’s office advised Tarrant County against releasing ballots within the 22-month waiting period required by state and federal law. 

“It is unbelievable that the Attorney General appears to be giving conflicting advice to election officials regarding something as serious as the security of ballots that have been cast in the election,” said James Slattery, senior staff attorney at the Texas Civil Rights Project. “Nothing relevant has changed in the thirty years the office’s opinion has been in effect — except that the current incumbent is now a leader of the Stop the Steal movement.” 

Tarrant County’s court challenge to Paxton’s new opinion was filed as part of an ongoing records dispute. Citing yet another opinion issued to the office this summer, this one dated July 26 and also instructing the county not to release ballots, attorneys for the county’s election department asked the judge to find Paxton’s new opinion “erroneous.” 

“On August 17, 2022, the Attorney General issued a formal opinion concluding for the first time in almost 40 years that voted ballots are not confidential,” they wrote. “The Attorney General’s most recent interpretation is erroneous, and the Court should not follow it.” 

In addition to the opinions issued to Tarrant County and dated July 26 and Aug. 12, records provided to Votebeat show Paxton’s office provided identical advice in opinions dated June 16 and Aug. 1

“We have two documents coming from the same office saying opposite things,” Tarrant County Elections Administrator Heider Garcia told Votebeat. “We’ve got to figure out what’s the path we’re going to walk to do our job.”

Garcia has clear reason to be concerned about the ruling. Earlier this year, after the 22 month window for the March 2020 primary lapsed, a group of activists spent weeks inside his office examining the 300,000 ballots cast by Tarrant County voters. The request took Garcia weeks to fulfill, and then required a dedicated room with videotaped surveillance and a staffer’s supervision. 

“You want it as safeguarded as possible in case you actually do have a criminal investigation or some sort of proceeding where [ballots] become evidence,” Garcia said. “Ballots are really easy to alter. You just grab a Sharpie and draw a line on them and now how do you know if it’s been altered or not? Having absolute protection on the physical document, to me, is extremely important.” 

The implications of Paxton’s Aug. 17 decision are tremendous for local election officials, who say they would not be able to conduct legally viable recounts or protect ballots in event of a challenged result by a candidate. Since the decision was released, counties across the state told Votebeat they’ve seen requests for ballots and related documents swell. Tarrant County has received almost 20, Harris County has received almost 40. 

“In the increasingly fraught time after an election, I can imagine groups with access to the records will be making all kinds of crazy claims that’ll be out there until they’re disproven,” said Grant Hayden, a professor at Southern Methodist University’s Dedman School of Law.

“That kind of behavior won’t do anything to increase transparency in the short run—it’ll just muddy the waters.”

Paxton’s clear about-face is now before a state judge in Fort Worth. On Friday, a spokesperson for Harris County elections told Votebeat the county would also be willing to defend the 22-month waiting period in court. 

In a statement, Harris County Attorney Christian Menefee wrote that the attorney general’s office had, “just a month ago,” provided the same contradictory advice to Harris County as provided to Tarrant County. 

“Our election workers should not have to fear being criminally prosecuted because the Attorney General wants to play politics and try to rewrite laws,” Menefee said.

Jessica Huseman is Votebeat’s editorial director and is based in Dallas. Contact Jessica at jhuseman@votebeat.org. Natalia Contreras is a reporter for Votebeat in partnership with the Texas Tribune. Contact Natalia at ncontreras@votebeat.org.

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