Election Advisory No. 2024-05
| To: | All Election Officials | |
| From: | Christina Worrell Adkins, Director of Elections |
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| Date: | January 24, 2024 | |
| RE: | Public Inspection of Ballot Images and Cast Vote Records and Ballot Security (HB 5180) | |
Introduction
This advisory is intended to advise counties of changes in the law passed during the 88th Regular Session (2023) in regards to public inspection of ballot images and cast vote records. Additionally, this advisory will provide explanations and guidance on the new law and ballot security issues.
All statutory references in this advisory are to the Texas Election Code (“the Code”), unless otherwise indicated.
Public Inspection of Ballot Images and Cast Vote Records
House Bill 5180 (88th Leg., R.S., 2023) amended Section 1.012 of the Code, effective September 1, 2023, to provide that, beginning on the first day after the date of the final canvass for an election, the general custodian of election records shall make available for public inspection any election records that are images of voted ballots (if maintained) or cast vote records. The bill further clarifies that original voted ballots shall be made available for public inspection beginning on the 61st day after election day. The general custodian of election records must adopt procedures to ensure that any personally identifiable information of a voter that is contained on a ballot is redacted before making the voted ballot available for public inspection.
Under HB 5180, Section 1.012 of the Code now provides a deadline for making ballot images and cast vote records available for public inspection that is different from the deadline for making other election records available for public inspection. Additionally, the general custodian of election records must adopt procedures to ensure that personally identifiable information that may be contained on those ballot images and cast vote records has been redacted before such records are made publicly available for inspection.
Since ballot images and cast vote records are available for public inspection beginning on the first day after the final canvass of the election, a general custodian of election records may begin the redaction process for those particular records as soon as practicable following the final canvass. We recommend that entities work closely with their legal counsel and public information divisions to ensure that records have been properly redacted before being made publicly available. Any questions or concerns about the time needed to respond to a request to inspect, or obtain copies of, public information should be directed to the Open Government Hotline at the Office of the Attorney General at (877) 673-6839.
Public Inspection of Voted Ballots After an Election
HB 5180 did not amend Section 66.058 of the Code, which requires voted ballots to be preserved securely in a locked room in the original locked ballot box for at least 60 days after the date of the election. An unauthorized entry into the ballot box containing voted ballots or the failure to prevent an unauthorized entry into the ballot box containing voted ballots constitutes a Class A misdemeanor. This means that original voted ballots may not be accessed during the 60-day period except in the event of a recount or another authorized entry into the ballot box. Therefore, any redaction of personally identifiable information of a voter on voted ballots should not begin until after the 60-day period has elapsed.
For public information requests related to voted ballots, the Secretary of State recommends that the general custodian of election records establish a written policy that specifies procedures for providing access to anonymous voted ballots through public inspection.
The general custodian’s policy should, at a minimum, include the following provisions:
- A defined time period for public inspection consistent with the Public Information Act.
- A log of all individuals accessing the anonymous voted ballots during the defined time period.
- General regulations regarding access to the ballots, including the following protocols:
- At least one member of the general custodian’s staff must be present at all times in the room containing the voted ballots while public inspection is taking place.
- Pens, pencils, and other marking devices are prohibited in the room containing the voted ballots.
- Food and beverages are prohibited in the room containing the voted ballots.
- Voted ballots must be kept in the same stacks, containers, or boxes, whichever is applicable, while public inspection is taking place.
- Voted ballots may not be removed from the room in which public inspection is taking place.
- Imaging devices may be used to take photos or make copies of the voted ballots.
If the general custodian has video surveillance available, the Secretary of State recommends that the custodian utilize the surveillance system to monitor all activities in the inspection room during the time that the ballots are made available for public inspection. In the space where the general custodian is providing public access to the anonymous voted ballots, the general custodian should ensure that all other materials unrelated to the ballot request are removed from that location.
Management and Retention of Election Records
Voted paper ballots are the official ballot of record for recounts and election contests. If the general custodian does not already have anonymous voted ballots scanned or imaged, they may want to consider imaging them prior to public inspection to ensure that there is a record of the image prior to public inspection taking place. If the files are being provided in any electronic format, the Secretary of State strongly recommends that you calculate a hash value to validate the integrity of the files and to ensure they are not altered in any way. If you need guidance on calculating a hash, please contact the Elections Division’s election security training team for assistance.
Under Section 66.058 of the Code, election records must be preserved for at least 22 months after election day. Section 1.012 of the Code defines the term election record to include ballot images, cast vote records and voted ballots. At the conclusion of the retention period, contents of locked ballot boxes or secure containers may only be destroyed if there is no election contest, criminal investigation, or pending public information request that has yet to be fulfilled. (Secs. 1.012, 66.058). Entities should also consult with their legal counsel and any records management officers before disposing of such materials after the 22-month retention period.
If you have any questions or situations that are not covered by this advisory, please do not hesitate to contact the Elections Division toll-free at 1-800-252-2216.
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