Jessica Huseman for VoteBeat:
A legal opinion released by Texas Attorney General Ken Paxton last week will almost certainly throw county elections offices into chaos after November, experts say, exposing election clerks to possible criminal charges and materially reducing the security of every ballot cast in the state.
Federal and state law require that ballots be kept secure for 22 months after an election to allow for recounts and challenges — a timeframe Texas counties have had set in place for decades. Paxton’s opinion, which doesn’t stem from any change to state law, theoretically permits anyone — an aggrieved voter, activist, or out-of-state entity — to request access to ballots as soon as the day after they are counted. Such requests have been used by activists all over the country as a way to “audit” election results.
The opinion from Paxton doesn’t carry the force of law, but experts say it will almost certainly serve as the basis for a lawsuit by right-wing activists. The opinion has already impacted election administrators across the state, who told Votebeat that they’ve seen an onslaught of requests since Paxton released it.
“[Paxton’s office wants] to throw a monkey wrench into the operations of vote counting, especially if they think they might lose, and Paxton is in a close race as far as I can tell,” said Linda Eads, a professor at Southern Methodist University’s Dedman School of Law and a former deputy attorney general for litigation for the state of Texas. She said she was “shocked” by the opinion.
Paxton, a Republican, was indicted on securities fraud charges in 2015 (he has yet to go to trial), and in 2020, the FBI began investigating claims he used his position to help a political donor. He has denied wrongdoing in both cases. He’s also been among former President Donald Trump’s most vocal supporters, and is now facing a professional misconduct lawsuit by the Texas state bar for filing a lawsuit challenging the results of the 2020 election in four states. The case was dismissed by the Supreme Court. He is up for re-election in November.
Paxton’s office sought input from the secretary of state’s office prior to issuing the decision, which was requested by state Sen. Kelly Hancock and state Rep. Matt Krause, both Republicans. In no uncertain terms, the secretary of state’s office — which is run by a Republican appointed by Gov. Greg Abbott — recommended keeping the current waiting period.
“The voted ballots are the core of the election process and the prohibition on disturbing the ballots (except in limited circumstances as permitted by the Election Code) preserves the integrity of the election itself,” wrote Adam Bitter, general counsel for the office, in a letter obtained by Votebeat through a public records request. “Handling of the voted ballots themselves opens up the possibility of accidental or intentional damage or misplacement that could call into question the election after the fact.”