The Williamson County attorney’s office has sued Texas Attorney General Ken Paxton, claiming a ruling he made that gives the public immediate access to ballots after an election violates state law.
County officials, the lawsuit said, can be charged with a misdemeanor if they release the information before a 22-month period required by the state election code that ballots must be kept confidential.
Three people requested to see the Williamson County ballots on Aug. 17, 2022, and Aug. 23, 2022, from different county elections, including all 2021 elections and the March 2022 primary, according to the lawsuit. The only reason they gave for their request was that the attorney general had ruled on Aug. 17, 2022, that ballot information could be released before the 22-month waiting period if there was a public information request for it, said the lawsuit.
County officials, the lawsuit said, did not want to release the information before the 22-month waiting period was over, saying the information was confidential, according to the Texas Election Code.
The attorney general’s office responded in a Nov. 9 letter saying that the ballot information is public information and that the county must release it immediately, the lawsuit said.
The county disagreed with Paxton’s ruling, saying the Texas Legislature “has decreed that the voted ballots remain secure for the 22-month preservation period and has criminalized the unauthorized access to those ballots,” according to the lawsuit.
“The Attorney General does not have the authority to overrule the expressed command of the Legislature by ruling that the Open Records Act supersedes the Election Code provision.”
The lawsuit also said that Paxton had made multiple rulings the county had received in 2022 “that the ballots and cast vote records were confidential during the 22-month preservation period” before Paxton changed his mind and ruled that the public must be allowed access to the ballots.
Linda Eads, a law professor at Southern Methodist University and a former deputy attorney general for litigation for the state of Texas, said she was shocked by Paxton’s August ruling.
“Section 66.058 (of the Texas Election Code) is specific and makes clear that election information is deemed confidential and must be treated as such, even if the more general statute Section 1.012 says election information is public information,” said Eads.
See here and here for some background. The courts have on occasion been willing to put a check on Paxton’s power, and I hope this will be one of those times. At least we’re in the state courts, so the Fifth Circuit won’t be involved. The Lege could modify the law in question to moot the claim, but with any luck there won’t be the time or the inclination to do that in this session. We may have to worry about it again in 2025, but we have enough to occupy ourselves with now, so let’s not borrow trouble.