Three Texas counties sue Ken Paxton over ballot access opinion

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At least three Texas counties — Tarrant, Williamson and Harris — have sued Attorney General Ken Paxton and are asking a choose to strike down a legal opinion he released last year that claims anybody can access voted ballots proper after an election. The lawsuits allege Paxton’s opinion violates state and federal legislation, contradicts his own previous direction on the problem and exposes native elections directors to potential legal fees.

For many years, the legal professional normal’s workplace suggested counties that voted ballots have been to be stored safe for 22 months after an election, a timeframe mandated by federal legislation and Texas state election code. But solely months earlier than the November 2022 normal election, despite the fact that neither legislation had modified, Paxton launched an opinion saying the paperwork may very well be launched to anybody who requested them, virtually proper after the ballots have been counted.

Now, counties and election officers throughout the state are caught. They can observe Paxton’s new opinion — which is barely a written interpretation of the legislation — and probably open themselves as much as legal penalties for violating state legislation, or they’ll defy the state legal professional normal and open up themselves to pricey lawsuits.

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

Paxton’s workplace didn’t reply to emails requesting remark. Paxton thus far has filed a response solely to Tarrant County’s lawsuit, which was filed in October and was the primary of the three challenges. Paxton’s workplace denied the county’s claims.

Experts say the transfer by three completely different counties to problem the Texas legal professional normal’s authorized opinion speaks to the difficult place it has put native election officers in. His opinion, they are saying, has brought about chaos and has no foundation in state legislation.

“These counties don’t have a choice. They have to worry about whether Ken Paxton is going to take action against them,” stated Chad Dunn, an Austin-based legal professional and an knowledgeable on Texas election legislation. Dunn stated 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.”

Elections directors throughout the state have for months been fielding an onslaught of information requests, many citing Paxton’s authorized opinion, from folks looking for to examine nameless voted paper ballots. They’re additionally requesting cast vote records — an nameless digital file of the votes on every ballot — from the 2021 and 2022 elections.

A ruling by a choose, in response to election officers from the counties that filed the lawsuits, would assist resolve the issue by giving counties clear steerage. 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,’” stated Heider Garcia, Tarrant County’s elections administrator, including that county elections directors have been discussing it throughout a convention earlier this month.

For his half, Chris Davis, Williamson County’s elections administrator, stated the authorized opinion “blew our minds. I definitely sensed varying levels of confusion about this from several counties.”

In a written assertion, Harris County Attorney Christian Menefee stated the county sued the legal professional normal’s workplace as a result of “he got the law wrong.”

The Texas legal professional normal’s workplace, together with Paxton’s personal administration, has affirmed the identical interpretation of the legislation because the Eighties. The observe of holding the ballots preserved and confidential for 22 months, experts say, prevents the paperwork from being tampered with or compromised and protects the paperwork’ reliability in case there’s a request for recount or different election challenges.

Paxton released his opinion in August after a request from state Sen. Kelly Hancock and state Rep. Matt Krause, each Republicans, who stated members of the general public and legislators needed “to audit the outcome of Texas elections.” In a footnote, Paxton acknowledged that his workplace had issued a earlier opinion in 1988, earlier than he took workplace, saying unauthorized access to the ballots through the preservation interval is prohibited. But the brand new opinion provides no clear clarification of his choice to vary a decades-old precedent.

Paxton’s workplace “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 doesn’t tackle the potential legal publicity of election officers, who may very well be charged with a misdemeanor amounting to $4,000 in fines or as much as a yr in jail, or supply a transparent timeframe of how rapidly election clerks should present the information 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 difficult Paxton’s Public Information Act choices — which specialists say shouldn’t be an unusual observe — and never his authorized opinion instantly. In order for counties to have the ability to problem an legal professional normal’s opinion in court docket, the counties should have “standing and show a reason why it affects them,” stated Bob Heath, an Austin-based election and voting rights lawyer and a former chair of the opinions committee of the Texas legal professional normal’s workplace. The counties are doing so by means of the Public Information Act challenges which might be primarily based on Paxton’s choice, 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 stated.

Soon after the 2020 election, when former President Donald Trump started to unfold conspiracy theories concerning the final result of the election and whether or not it had been affected by fraud, counties throughout the state and the nation have been flooded with public information requests to look at voted ballots and voting data.

Based on the lawsuits, requesters have been looking for solid vote information from every county for the 2021 and 2022 elections. In Tarrant County, the lawsuit says requesters are looking for “all early voting, absentee, provisional, and day-of-election paper ballots” from 2021, and in Williamson County, one requester is looking for “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 devour time and sources. In August, a person from San Antonio requested to examine ballots from Williamson County’s November 2020 election. In September, after 22 months had elapsed, election officers in Williamson County pulled out tons of of bins containing the 300,000 ballots the person had requested. But he by no means confirmed as much as examine them.

After Paxton launched his opinion in August, these requests accelerated, election officers stated. When Tarrant, Harris and Williamson counties sought assist from Paxton’s workplace, his response to the counties was to launch the information, the lawsuits state.

Many of the requests obtained by the three counties suing Paxton, in addition to different counties throughout the state, stemmed from native and nationwide voter fraud activists who’ve promoted conspiracy theories about elections and are looking for to conduct their very own critiques of ballots.

Paxton has been among Trump’s most vocal supporters. He is going through a professional misconduct lawsuit by the State Bar of Texas for filing a lawsuit difficult the outcomes of the 2020 election in 4 states. That case was dismissed by the Supreme Court.

Voting rights advocates say Paxton’s opinion is an element of a bigger try to proceed to undermine the religion within the elections course of, each in Texas and throughout the nation.

“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,” stated James Slattery, senior supervising legislative legal professional with the Texas Civil Rights Project.

Slattery added that permitting “untrained amateurs infected with conspiracy theories” to assessment ballots through the preservation interval would doubtless harm the supplies whereas the election counting course of remains to be underway.

Legislators are stepping in to substantiate the 22-month preservation interval of voted ballots. Sen. Nathan Johnson, D-Dallas, filed Senate Bill 292, which, if handed, would add a piece to the Texas election code that states “voted ballots are confidential and not subject to disclosure until after the preservation period prescribed” by the election code.

Johnson stated he filed the invoice quickly after he learn Votebeat’s coverage of Paxton’s opinion as a result of he didn’t need election officers throughout 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 stated. Election officers “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 [email protected]

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