Election watchdog sues Texas county over ballot secrecy, but paper ballots could be the solution

An election integrity group has sued Harris County, Texas, over failing to ensure ballot secrecy while providing public records, an issue that could be resolved by switching to paper ballots.

The Public Interest Legal Foundation (PILF) filed a lawsuit in federal court on Tuesday against Harris County, home to Houston, alleging that the First and Fourteenth Amendments of the U.S. Constitution were violated by not adequately ensuring the secrecy of voters’ ballots. However, an election integrity advocate believes that ballot secrecy would be maintained by using paper ballots instead of having machines create or mark ballots.

PILF sued Harris County Clerk Teneshia Hudspeth, since she oversees election administration in the county, and Harris County Judge Lina Hidalgo, because her responsibility is to ensure the county follows state and federal election laws.

“Harris County has implemented a system of voting which permits voters ballots to be traced back to the individual voter,” according to the lawsuit. “To audit elections, Texas’ public disclosure laws make public both the poll books of voting centers and the disclosure of ballots, the combination of which make it possible for anybody to trace certain voters back to their actual ballot.”

“By utilizing the poll books from countywide Vote Centers along with publicly available ballots of specific voters, it is possible to connect specific voters to their individual ballot to learn how they voted in that election,” the lawsuit alleges.

“For example, if voter John Doe, from precinct 1 voted at vote center 1 at 2:15 on the first Tuesday of early voting, a ballot cast at 2:16 from a voter in precinct 1 at vote center 1 is easily traced back to voter John Doe. The poll books record where and when voter John Doe voted. The ballot indicates the time of the vote and precinct to which the voter belongs,” the filing continues.

“Because of the current Texas law requiring public disclosure, certain specific voters’ ballots have already been made available to the public and have been publicly released through various news organizations,” according to the lawsuit.

 Claims specific voters’ ballots publicly disclosed

An affidavit included in the lawsuit from Barry Wernick, who obtained ballots and poll books for the political party primary elections in Harris County this year, shows that he “discerned the ballots of court of appeals justices, district court judges state senators, state representatives, congressmen and congressional candidates and, most ironically, the ballot of Texas Secretary of State Jane Nelson,” the lawsuit states.

“Current expert estimates indicate that using this analog method, around 10% of all Democratic Primary Voters and about 5% of all Republican Primary Voters’ ballots may be discoverable just by using public and legally available records. For example, Mr. Wernick has ascertained the votes of over 28,000 Harris County voters.”

The lawsuit also alleges that Harris County does not adequately follow the Texas secretary of state’s guidance regarding redactions of election records, leading to the violation of ballot secrecy.

However, “even if information about the voter is redacted so that it becomes impossible for the general public to no longer able to trace ballots to individual voters due, it is still possible for election officials to trace voters to ballots and visa-versa because they have access to all of the information required to match a voter to their ballot,” the lawsuit argues. “It is no better for the voter that violation of their secret ballot comes at the hands of the county government than the general public.”

Ballot privacy a "safeguard"

The lawsuit explains that the importance of secret ballots is to ensure that voters are not pressured into voting for a candidate.

“One of the most crucial functions of the secret ballot is to safeguard the autonomy of the voter, protect the voter from undue influence and help eliminate corruption from the voting choices. By ensuring that votes are cast in private, individuals can express their preferences without fear of retribution or social pressure.”

The lawsuit requests the court require the county to stop “making public voter identifying information from poll books and ballots” and “abstain from viewing information that may lead to the discovery of a voter’s ballot and from identifying to anyone a voter’s vote or ballot.”

PILF President J. Christian Adams explained the importance of his group’s lawsuit. “The secret ballot is a cornerstone of political privacy and is protected by the 1st and 14th Amendments of the Constitution,” Adams said in a statement on Wednesday. “Harris County voters have a right to cast a ballot without their friends and neighbors knowing who they voted for. Protecting the secret ballot is fundamental to the integrity of the electoral process.”

Phill Kline, director of The Amistad Project election integrity group, told Just the News on Thursday that technology was a crucial issue for the lack of ballot secrecy in Harris County. With the “digital world, you are communicating with a machine that’s two-way,” Kline said. However, “when communicating with a piece of paper, it’s one-way communication because the paper is not communicating back,” and there is “no record."

“When you got machines, you have a record of everything that occurs within the machine, and that'll be preserved.”

He explained that ballot scanners can still be used securely in elections, but elections should be conducted with paper ballots, not machines that create or mark ballots.

“I think there's a way to use scanners with paper ballots completed by a voter if you conduct the right audits and manage the election in the right way,” so that “it’s transparent,” Kline said, adding, “We really haven't perfected that yet.”

Election Integrity Network Founder Cleta Mitchell told Just the News on Thursday that Harris County has a track record of election issues. “Harris County is one of the worst run election offices in the country and that is saying a lot since there is serious competition for that title,” Mitchell said.

“So it does not surprise me in the least that Harris County cannot seem to follow the law in this instance any better than it follows the law in the rest of its operations and functions. It is time for the Texas Secretary of State to rescue the voters in Harris County from a series of problematic election administrators, and to make a serious effort to run Harris County elections in a manner consistent with state and federal law.”

The offices of the Harris County clerk and judge didn’t immediately respond to requests for comment on Thursday.