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Published on May 29, 2024
Texas' Transparency Drive Risks Secret Ballot, Sparks Fears of Voter Fraud Witch HuntSource: Unsplash/ Arnaud Jaegers

A recent joint investigation by Votebeat and The Texas Tribune has exposed a troubling trade-off in Texas' bid for election transparency. As the state enacts laws making it easier to access election records soon after elections, the shroud of secrecy around voters' ballots may be inadvertently lifted. This revelation comes with a rise in public record requests from activists, driven by unfounded fears of voter fraud.

Fueled by such concerns since 2020, it appears that anyone, with the right know-how, can link a specific vote to an individual in some cases, particularly in small counties and low-turnout events. As stated in the investigation, "What bothers me is that people cannot vote in secret in the United States," Williamson County District Attorney Shawn Dick lamented, highlighting the potential damage to the bedrock principle of a private ballot. The Secretary of State's office was found to be aware that the public information could be used to track a voter's choices, but state lawmakers have only continued loosening the reins on voter and ballot data mining.

A clear example of this tension is a report by the website Current Revolt, which published what it claimed to be the ballot cast by former Republican Party of Texas Chair Matt Rinaldi in the March 5 GOP primary. The detailed process to link ballots to voters remains undisclosed by the journalists, to protect voter privacy.

While the electronic ballots don't bear names or Social Security numbers, public records entail enough data points that, when cross-referenced, could potentially out a voter's choices. Rinaldi has neither confirmed nor denied the authenticity of the ballot in question, and the Republican Party of Texas is reportedly considering legal actions against Current Revolt for possible defamation. Amidst this, Secretary of State Jane Nelson has advised county elections administrators that they have a "duty to redact personally identifiable information." However, clarity on what that covers is still in murky waters.

Texas' approach to election records is unusually expansive, offering up everything from electronic poll books to cast vote records and ballot images. It all stems from a drive for transparency in a state haunted by baseless claims of election fraud, championed by key figures like former President Donald Trump, Attorney General Ken Paxton, and U.S. Sen. Ted Cruz. This approach took a legislative twist after Paxton's advice was legally concretized in House Bill 5180 passed during the 2023 session, cutting down the wait time for such records from 22 months post-election to a mere 61 days.

This provision for early access is heralded by proponents like state Rep. Terry M. Wilson as a means to fortify public trust in elections, though election departments across Texas now face growing pressure from public records requests. Critics warn of voter intimidation, and elections administrators are now turning to the Texas Legislature for guidance on what must be public for the sake of transparency and what must be protected to guard voters' anonymity. "If election records are no longer under the control of election officials, this can lead to a significant risk of the records being lost, stolen, altered, compromised, or destroyed," Stephanie Swanson of the League of Women Voters cautioned during a legislative hearing.

With states like South Carolina and North Carolina taking steps to protect ballot secrecy, the pressure is mounting on Texas to find a way to reconcile the public's right to election integrity with each voter's right to cast a secret ballot. Hays County elections administrator Jennifer Doinoff suggests possible legal changes, such as setting a higher voter minimum for precincts or altering how voter information can be released, which would help safeguard privacy.