Voter advocacy groups ask DOJ to step in as Texas allows some ballots to be identified

The request for the U.S. Department of Justice to protect voters comes after Texas undermined ballot secrecy in the name of election transparency.

By Natalia Contreras, VoteBeat

This article was originally published by Votebeat, a nonprofit news organization covering local election administration and voting access.

A coalition of watchdog and voter advocacy groups asked the U.S. Department of Justice on Thursday to use “all available legal authorities” to protect the secrecy of ballots after Votebeat and The Texas Tribune confirmed that the private choices some voters make in the voting booth can in some instances be identified using public, legally available records.

The two news organizations reported on the limited ability to identify how some people vote after an independent news site published what it said was the image of the ballot a former state GOP chair cast in the March 5 Republican primary.

The League of Women Voters of Texas, American Oversight, the Campaign Legal Center, and Southern Coalition for Social Justice cited the investigation by Votebeat and The Tribune that replicated a series of steps that could identify a specific person’s ballot choices using public records. The outlets did not detail the precise information or process needed to do so.

The advocacy groups said the ability to identify how people vote could lead to voter intimidation.

“Texans should not have to fear that their right to a secret ballot can be compromised, nor should they have to fear any other adverse consequences flowing from the compromise of that right—such as exposure of the ballot being wielded to threaten or intimidate them and their loved ones,” the groups wrote in the letter, addressed to Tamar Hagler, the chief of the voting section of the the Justice Department’s civil rights division.

The groups’ request to the Justice Department comes a week after the Texas Secretary of State’s Office issued emergency guidance to local election officials, telling them, among other things, to “redact any information on the precinct election records or on the ballot image that identifies the location at which a voter voted.”

Secretary of State Jane Nelson’s office had been aware that publicly available information could be used to link a particular ballot to the voter who cast it, but didn’t issue the guidance on how to protect ballot privacy until after the two outlets reported on the situation.

Texas lawmakers and county election officials have made election records easier to access in recent years, citing the need for election transparency as conspiracy theories about the outcome of the November 2020 election took hold in the state.

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 records such as ballot images and cast vote records—electronic representations of how voters voted—just 61 days after election day.

When publishing what it said was former Republican Party of Texas Chair Matt Rinaldi’s ballot, the independent news site didn’t fully explain how it linked the ballot image to him. Rinaldi has neither confirmed nor denied that it was his ballot.

“This was always a possibility that we were concerned about. And of course, as your reporting has shown, it’s a reality in certain jurisdictions under certain circumstances,” Elisabeth MacNamara, vice president of advocacy for the League of Women Voters of Texas, told Votebeat. “The mere fact that someone could, in the right set of circumstances, connect all of the dots because these voted ballots are available and know how their neighbors are voting is intimidating and we’re concerned that it’s going to discourage people from voting in this state where turnout is already pretty low.”

During a Texas House Elections Committee hearing Wednesday, state representatives discussed potential legislation that could help prevent a voter’s ballot choices from becoming public. Such changes could include aggregating information from smaller precincts into larger ones and expanding the number of voters in precincts, steps that could make it more difficult to link a ballot to a voter.

Currently, county election precincts must have at least 100 voters but not more than 5,000. However, in some large counties, a precinct can have as few as 50 voters.

Christina Adkins, the elections division director for the Texas Secretary of State’s Office, told lawmakers she and her staff are looking at best practices from other states to protect a voter’s right to a secret ballot. The office did not immediately respond to questions about which state it is looking to for guidance. Both South Carolina and North Carolina have taken steps to protect ballot secrecy by restricting which election records are released and by aggregating results from smaller precincts into larger ones when necessary.

Lawmakers on Wednesday discussed additional possible legislation that would further prevent the misuse of publicly available election records by exposing how people voted. Currently under state and federal law, anyone who publicizes a voter’s ballot information could face legal action if the release of information is tied to voter intimidation, bribery, or coercion.

On the same day Adkins issued guidance to local election officials last week, Texas Attorney General Ken Paxton released a legal opinion that said the disclosure of election records must be done in a way that preserves ballot privacy.

In their letter to the U.S. Department of Justice, the groups criticized Paxton’s guidance and noted that it was a 2022 opinion from his office that “produced this issue” and that the office “takes no responsibility for creating an environment of fear in Texas elections.”

“Simply put, the recent legal opinion is too little, too late,” the letter said.

Voted ballots, by law, had to be kept secure and were not available to the public for 22 months after an election. But in August 2022, Paxton released a non-binding legal opinion advising county officials to release voted ballots as soon as they are counted, while redacting any information that could identify the voter. After at least three counties challenged Paxton’s advice in court, the Texas Legislature rewrote the law to align with Paxton’s advice to more quickly release voted ballots.

The groups in their letter raised concerns about whether the state law conflicts with federal law requiring that every voted ballot in a federal election “be retained and preserved for 22 months”  following such an election in their original format.

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