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Three Texas counties sue Ken Paxton to settle dilemma over public access to ballots

Election officials say attorney general’s legal opinion puts them in a bind: risk breaking the law or risk provoking lawsuits.

A person’s hand holding bright-colored bags labeled “provisional ballots”

Election workers sort provisional ballots and forms from the polling centers at the Tarrant County Election Administration building in Fort Worth on Nov. 8, 2022. The county is suing Attorney General Ken Paxton over when residents can access ballots cast after the election.

Shelby Tauber for The Texas Tribune

Votebeat is a nonprofit news organization reporting on voting access and election administration across the U.S. Dig deeper into how our democracy works with Votebeat’s free newsletters.

At least three Texas counties — Tarrant, Williamson, and Harris — have sued Attorney General Ken Paxton and are asking a judge to strike down a legal opinion he released last year that says anyone can access voted ballots right after an election. The lawsuits allege Paxton’s opinion violates state and federal law, contradicts his own previous direction on the issue, and exposes local election administrators to potential criminal charges.

For decades, the attorney general’s office advised counties that voted ballots were to be kept secure for 22 months after an election, a timeframe mandated by federal law and Texas state election code. But only months before the November 2022 general election, even though neither law had changed, Paxton released an opinion saying the documents could be released to anyone who requested them, almost right after the ballots were counted. 

Now, counties and election officials across the state are stuck. They can follow Paxton’s new opinion — which is only a written interpretation of the law — and potentially open themselves up to criminal penalties for violating state law, or they can defy the state attorney general and open up themselves to costly lawsuits. 

That’s why now the counties are asking a judge to step in and settle the question. 

Paxton’s office did not respond to emails requesting comment. Paxton so far has filed a response only to Tarrant County’s lawsuit, which was filed in October and was the first of the three challenges. Paxton’s office denied the county’s claims.

Experts say the move by three different counties to challenge the Texas attorney general’s legal opinion speaks to the complicated position it has put local election officials in. His opinion, they say, has caused chaos, and has no basis in state law. 

“These counties don’t have a choice. They have to worry about whether Ken Paxton is going to take action against them,” said Chad Dunn, an Austin-based attorney and an expert on Texas election law. Dunn said Paxton’s opinion “is laughable. The election code is clear. I’ll be just shocked if the state court system ends up agreeing with Ken Paxton and the ballots are public.” 

Election administrators across the state have for months been fielding an onslaught of records requests, many citing Paxton’s legal opinion, from people seeking to inspect anonymous voted paper ballots. They’re also requesting cast vote records — an anonymous electronic record of the votes on each ballot — from the 2021 and 2022 elections. 

A ruling by a judge, according to election officials from the counties that filed the lawsuits, would help solve the problem by giving counties clear guidance. All three counties filed in Travis County district courts.

“We feel like we’re in a situation that is ‘bad if you do, bad if you don’t, and pick your poison,’ ” said Heider Garcia, Tarrant County’s election administrator, adding that county election administrators were discussing it during a conference earlier this month. 

For his part, Chris Davis, Williamson County’s election administrator, said the legal opinion “blew our minds. I definitely sensed varying levels of confusion about this from several counties.” 

In a written statement, Harris County Attorney Christian Menefee said the county sued the attorney general’s office because “he got the law wrong.”

The Texas attorney general’s office, including Paxton’s own administration, has affirmed this interpretation of the law since the 1980s. The practice of keeping the ballots preserved and confidential for 22 months, experts say, prevents the documents from being tampered with or compromised and protects the documents’ reliability in case there’s a request for recount or other election challenges. 

Paxton released his opinion in August after a request from state Sen. Kelly Hancock and state Rep. Matt Krause, both Republicans, who said members of the public and legislators desired “to audit the outcome of Texas elections.” In a footnote, Paxton acknowledged that the attorney general’s office had issued a previous opinion in 1988, before he took office, saying unauthorized access to the ballots during the preservation period is prohibited. But the new opinion offers no clear explanation of his decision to change a decades-old precedent. 

Paxton’s office “does not have the authority to make or change the law; that is a responsibility that solely rests with the Texas Legislature,” Tarrant County’s lawsuit says. 

Paxton’s new opinion does not address the potential criminal exposure of election officials, who could be charged with a misdemeanor amounting to $4,000 in fines or up to a year in jail, or offer a clear timeframe of how quickly election clerks must provide the records to requesters.

“The Election Code provides a few limited circumstances where the custodian has express authority to access ballots prior to the 22-month expiration. Responding to [public information] requests is not one of those circumstances,” the Williamson County lawsuit says. 

The three lawsuits are technically challenging Paxton’s Public Information Act decisions — which experts say is not an uncommon practice — and not his legal opinion directly. In order for counties to be able to challenge an attorney general’s opinion in court, the counties must have “standing and show a reason why it affects” them said Bob Heath, an Austin-based election and voting rights lawyer and a former chair of the opinions committee of the Texas attorney general’s office.The counties are doing so through the Public Information Act challenges that are based on Paxton’s decision, which Heath says is “wrong.” “That’s a way to get to this opinion, and the opinion obviously poses a real problem for counties or for election administrators and county clerks,” Heath said. 

Soon after the 2020 election, when former President Donald Trump began to spread baseless conspiracy theories about the outcome of the election and whether it had been affected by fraud, counties across the state and the country were flooded with public records requests to examine voted ballots and voting data

Based on the lawsuits, requestors have been seeking cast vote records from each county for the 2021 and 2022 elections. In Tarrant County, the lawsuit says requesters are seeking “all early voting, absentee, provisional, and day-of-election paper ballots” from 2021 and in Williamson County, one requester is seeking “all ballot images and cast vote record files for all the elections that took place in 2020, 2021, and 2022,” the lawsuit says. 

Such requests, even for ballots older than 22 months, can consume time and resources. In August, a man from San Antonio asked to inspect ballots from the Williamson County’s November 2020 election. In September, after 22 months had elapsed, election officials in Williamson County pulled out hundreds of boxes containing the 300,000 ballots the man had requested. But he never showed up to inspect them. 

After Paxton released his opinion in August, these requests accelerated, election officials said. When Tarrant, Harris, and Williamson counties sought help from Paxton’s office, his response to the counties was to release the records, the lawsuits state. 

Many of the requests received by the three counties suing Paxton, as well as other counties across the state, stemmed from local and national voter fraud activists who have promoted conspiracy theories about elections and are seeking to conduct their own reviews of ballots. 

Paxton has been among former Trump’s most vocal supporters. He is facing a professional misconduct lawsuit by the Texas state bar for filing a lawsuit challenging the results of the 2020 election in four states. That case was dismissed by the Supreme Court.

Voting rights advocates say Paxton’s opinion is part of a larger attempt to continue to undermine the faith in the elections process both in Texas and across the country. 

“This is obviously, and I stress obviously, a political favor to his allies in the ‘Stop the Steal’ movement, to allow them to conduct more partisan audits and to do it more frequently,” said James Slattery, senior supervising legislative attorney with the Texas Civil Rights Project. 

Slattery added that allowing “untrained amateurs infected with conspiracy theories” to review ballots during the preservation period would likely damage the materials while the election counting process is still underway. 

Legislators are stepping in to confirm the 22-month preservation period of voted ballots. Sen. Nathan Johnson (D-Dallas) filed Senate Bill 292 which, if passed, would add a section to the Election Code that states “voted ballots are confidential and not subject to disclosure until after the preservation period prescribed” by the Election Code. 

Johnson said he filed the bill soon after he read Votebeat’s coverage of Paxton’s opinion because he did not want election officials across Texas “to have to choose between violating state and federal law and getting prosecuted by the attorney general pursuant to his flagrantly erroneous opinion,” Johnson said. Election officials “are experiencing electoral vigilantism. And that’s what Paxton is pushing with this.”

Natalia Contreras covers election administration and voting access for Votebeat in partnership with the Texas Tribune. Contact Natalia at ncontreras@votebeat.org 

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