The issues seem small, but there are far reaching consequences if all issues are considered.
Here’s the short version of a battle that is going on in the Texas right now and why the AG’s decision on my document request is so important.
I am asking for electronic ballot information that the legislature has clearly stated is public information. Specifically, I’m asking for ballot images which are simply pictures of the ballots, and cast vote records which are a synopsis of the information on the ballot and are what our election tabulations are based on. It is a tally sheet in essence.
There is a frequent claim made that 66.058 makes precinct election records confidential and non releasable for 22 Months. It clearly does not say that, (see side 2) it is simply a retention period and that interpretation saying it makes things confidential is in conflict with what the legislature has said in 1.012 and 125.064, which specifically make virtually all election records public
The only documents specified in the entire section of 66.058 are Voted Ballots, and they are given specific storage and access requirements for that period. No other document is offered that protection. I should note that even the ballots are accessible, but only as allowed by other sections of the code.
There is an attempt to conflate ballots with ballot images and other ballot information. This is in conflict with 128.001 which makes a clear exception to 66.058 for this type of electronic “ballot materials”, and 125.064 that clearly makes any documents or records generated by an electronic voting system to be public documents. Ballot images and other electronic files are indeed generated by the system.
Often, various county departments will call the SoS office and be given advice over the phone that contradicts current statutes that are quoted above.
Two opinions are often used in making these claims. One is from the SoS, Election Law Opinion No. JWF-9 (1983) is antiquated. JWF-9 References code that has long since disappeared from the books and deals with images that were made in completely different circumstances, apparently illegaly. The images today are made lawfully. Both 128.001 and 125.064 were written into the election code since that decision was issued. The law, facts and circumstances are all different now than in 1983.
ORD 505 is an AG decision that references ballots and not ballot images, and I contend that 128.001 specifically states that images are a separate thing from ballots that it is not applicable to this circumstance.
Sec. 66.058. PRESERVATION OF PRECINCT ELECTION RECORDS.
(a) Except as otherwise provided by this code, the precinct election records shall be preserved by the authority to whom they are distributed for at least 22 months after election day.
(b) For a period of at least 60 days after the date of the election, the voted ballots shall be preserved securely in a locked room in the locked ballot box in which they are delivered to the general custodian of election records. On the 61st day after election day, the general custodian of election records may:
(1) require a person who has possession of a key that operates the lock on a ballot box containing voted ballots to return the key to the custodian; and
(2) unlock the ballot box and transfer the voted ballots to another secure container for the remainder of the preservation period.
(b-1) Except as permitted by this code, a ballot box or other secure container containing voted ballots may not be opened during the preservation period.
(c) If during the preservation period an authorized entry is made into a ballot box or other secure container containing voted ballots, when the purpose for the entry is fulfilled, the box or container shall be relocked or resecured, and the box and key or secure container returned to the custodian.
(d) A custodian of a ballot box or secure container containing voted ballots commits an offense if, during the preservation period prescribed by Subsection (a), the custodian:
(1) makes an unauthorized entry into the box or container; or
(2) fails to prevent another person from handling the box or container in an unauthorized manner or from making an unauthorized entry into the box or container.
(e) An offense under Subsection (d) is a Class A misdemeanor.
552.001
(f) The records in ballot box no. 4 may be preserved in that box or by any other method chosen by the custodian. If the records are removed from the box, they may not be commingled with any other election records kept by the custodian.
(g) Electronic records created under Chapter 129 shall be preserved in a secure container.
(h) For the preservation of precinct election records in an election involving a federal office, the secretary of state shall instruct the affected authorities on the actions necessary to comply with federal law and otherwise implement this section.
cts 1985, 69th Leg., ch. 211, Sec. 1, eff. Jan. 1, 1986. Amended by Acts 1997, 75th Leg., ch. 1078, Sec. 18, eff. Sept. 1, 1997; Acts 2003, 78th Leg., ch. 1315, Sec. 40, eff. Jan. 1, 2004.
Amended by:
Acts 2005, 79th Leg., Ch. 950 (H.B. 1580), Sec. 1, eff. September 1, 2005.
Sec. 128.001. COMPUTERIZED VOTING SYSTEM STANDARDS. (a) The secretary of state shall prescribe procedures to allow for the use of a computerized voting system. The procedures must provide for the use of a computerized voting system with:
(1) multiple voting terminals for the input of vote selections on the ballot presented by a main computer; and
(2) a main computer to coordinate ballot presentation, vote selection, ballot image storage, and result tabulation.
(b) Notwithstanding Chapter 66, a system under this section may allow for the storage of processed ballot materials in an electronic form on the main computer.
(c) The secretary of state may modify existing procedures as necessary to allow the use of a system authorized by this chapter.
Added by Acts 1997, 75th Leg., ch. 1349, Sec. 50, eff. Sept. 1, 1997.