Texas, a state marred by electoral controversies, found itself embroiled in another mess this year, needing to rush in new guidelines to resolve shortcomings in recent transparency laws that dangerously risked revealing voters’ ballot selections. Despite the 2024 elections having wrapped up, discussions surrounding the security of ballot secrecy has reignited in courthouses and state legislatures. The Public Interest Legal Foundation, a nationally recognized conservative nonprofit organization, instigated a federal lawsuit against Harris County the previous week, on grounds of the county neglecting to enforce protection measures for voters’ right to cast secret ballots.
Meanwhile, an ongoing case involving an activist purporting to expose over 60,000 voters’ ballot choices adds fuel to the fire. To combat such breaches of voter privacy, Republican state Representative Ryan Guillen has introduced new legislation this month with the intention to make it a serious crime for individuals to access information that could link voters to their ballots preferences. This drive for heightened transparency has grown on the back of suspicions seeded by former President Trump that his rightful victory was unscrupulously snatched away in the 2020 election.
The quest for purported voter fraud evidence turned activists into sleuths, who frenziedly filed requests for access to original voted ballots and cast-vote records across nearly all Texas counties. Previously, privacy of voted ballots was guaranteed for a 22-month period post election. However, in a stark turnaround in 2022, Texas Attorney General Ken Paxton issued an advisory suggestion to county officials, promoting the immediate release of voted ballots subsequent to their counting, provided identifiable voter information was omitted.
Eliciting resistance from at least three counties in court, the Texas Legislature subsequently reformed the law to allow public disclosure of ballot images, cast-vote records, and the original voted ballot just 61 days following an election. Over the past three years, requests for election records have increasingly blown out, as have the accompanying risks, as reported by election officials.
An eye-opening incident in May highlighted the perils of these overly transparent records, when the conservative news outlet Current Revolt purportedly published the image of the ballot cast by Matt Rinaldi, former Chair of the Republican Party of Texas, during the March 5 Republican primary. The same month, seasoned conservative activist Laura Pressley specified in a federal lawsuit that a discernable algorithmic pattern from public records had facilitated her to map 60,000 Williamson County voters to their specific ballot choices. Her lawsuit maintains that due to non-compliance with a ballot-numbering law by state and local electoral officials, her ability to connect voters to their respective ballots was made possible.
State and local election officials explained they’ve long harbored concerns about potential threats to ballot secrecy in an era of intensified access to voter data. Yet, the alarming disclosures in May compelled Ken Paxton and Secretary of State Jane Nelson to issue supplementary instructions to election officials, stressing further redactions and advising on the cessation of releasing data that could point to individuals’ voting preferences.
Critics argue that such transparency comes at the cost of voter anonymity, which in turn opens them up to potential breaches of privacy, harassment, and intimidation. Elisabeth MacNamara, vice president of advocacy for the League of Women Voters of Texas expressed concerns that such actions could cause a chilling effect on voter turnout.
Furthermore, the federal lawsuit brought against Harris County by the conservative nonprofit group Public Interest Legal Foundation alleges that the county’s voting process violated at least three voters’ right to anonymous voting. According to the lawsuit, the ballot cast by Caroline Kane, a voter in Harris County and the GOP candidate for a U.S. House seat, was publicly exposed during the March 5 Republican primary. Kane was unfortunately defeated by Democrat Lizzie Fletcher, which might have been a result of this unscrupulous action.
Kane, alongside two other plaintiffs, is seeking judicial intervention to prevent Harris County from disclosing identifiable voter details in ballot images and electronic poll book data. The plaintiffs are also requesting the court order county election officials to avoid viewing information that could potentially reveal a voter’s ballot preference or to anyone identify a voter’s ballot choice.
It’s not a simple task to trace a voter back to their specific ballot choices. Such a feat necessitates a process of elimination and the leveraging of multiple public records. However, these undesirable events are more likely to occur within less populated counties, smaller precincts or elections with sparse turnout.
Pending necessary legislative developments, however, all counties are obliged to comply with the directives from the secretary of state. These directives necessitate the expending of substantial time and resources on blacking out any form of information that might link a voter back to their ballot choices. For certain counties, complying with these measures has called for additional manpower and expensive computer software purchases.
For example, in Guadalupe County, located to the east of San Antonio, election administrator Lisa Hayes is preparing to tackle a likely influx of public records requests. While attempting to fulfill state-imposed post-election deadlines and getting ready for upcoming local runoff elections, she also has to plan her strategy for managing the redaction of more than 80,000 ballots cast this November.
This convoluted situation brings to attention the necessity for balance in transparency and privacy measures within electoral processes. Recent events demonstrate the potential harm caused by excess transparency, which can unfortunately undermine the very foundation of democracy – the secret ballot.
The efficacy of legislative measures and judiciary interventions in the face of the rapidly evolving landscape of modern technologies, remains to be seen. However, one thing is certain—the push for total transparency must consider the importance of protecting the confidentiality rights of voters. Perhaps more debate is needed to reach an optimal solution for pursuing transparency, without risking voters’ right to a secret ballot.