Can a member of the public get copies of spoiled ballots in Texas after an election, and for how long?

Plain-English summary

The Williamson County Attorney, writing for the county Elections Department, asked the Attorney General whether physical copies of spoiled ballots in ballot box no. 4 can be made available to the public more than sixty days after election day. A spoiled ballot is one a voter mismarked or damaged while voting and then exchanged for a fresh ballot; the spoiled ballot gets logged on a register and dropped into ballot box no. 4, separate from the voted ballots, which go in ballot box no. 3.

The AG first cleared up a timing confusion. The Election Code requires voted ballots to be kept securely for at least 60 days, but that 60-day rule is about voted ballots in box no. 3, not spoiled ballots in box no. 4. Spoiled ballots are "precinct election records" that must be preserved for at least 22 months after election day. So the real question was whether the public can get copies during that 22-month period.

The answer is yes. The Election Code says all election records are public information unless an exception in the Election Code or the Public Information Act applies, and spoiled ballots qualify as election records. The AG found no exception in either the Public Information Act's list of excepted information or anywhere in the Election Code that covers spoiled ballots. So the custodian must make copies available, and the AG read the public-access requirement as authorizing the custodian to enter ballot box no. 4 to respond to a request, subject to the normal time-and-manner rules (business hours, custodian present during inspection, and so on).

There is one important limit. Even though spoiled ballots are public, some information on an individual ballot can be confidential. Drawing on a prior opinion and older Texas cases, the AG explained that the constitutional right to a secret ballot protects personally identifiable information that could tie a voter's identity to their specific selections. So before releasing copies, the custodian must redact any such voter-identifying information.

What this means for you

If you are an election records custodian or elections administrator

Based on this opinion, you must make copies of spoiled ballots in ballot box no. 4 available to the public during the 22-month preservation period, not just for 60 days. The 60-day secure-storage rule applies to voted ballots in box no. 3, which is a different category. Before you release copies, redact any personally identifiable information that could connect a voter to their specific choices, because the AG concluded that information is confidential and you have no discretion to release it (Gov't Code section 552.007).

If you are a journalist, researcher, or member of the public requesting records

The opinion treats spoiled ballots as public election records you can request and obtain copies of for 22 months after the election. Expect the custodian to follow standard access procedures (regular business hours, supervised inspection of box no. 4) and to redact voter-identifying details to protect ballot secrecy.

If you advise a county on records requests

The opinion's analysis runs in two steps: confirm the record is an "election record" and therefore public under Election Code section 1.012(c), then check for an express exception in the Public Information Act or the Election Code. Finding none for spoiled ballots, the AG concluded they are disclosable, with secret-ballot redaction as the only carve-out.

Common questions

Q: Can the public get copies of spoiled ballots in Texas?
A: Yes. The AG concluded spoiled ballots in ballot box no. 4 are election records and public information, and no statute excepts them, so the custodian must provide copies on request.

Q: For how long are spoiled ballots available?
A: At least 22 months after election day, the preservation period for precinct election records. The 60-day rule the request mentioned applies to voted ballots, not spoiled ballots.

Q: Doesn't the 60-day secure-storage rule apply?
A: No. The AG explained that the 60-day rule in subsection 66.058(b) covers voted ballots delivered in ballot box no. 3. Spoiled ballots are delivered in ballot box no. 4, so that rule does not control.

Q: Will the spoiled ballots reveal how someone voted?
A: They should not, after redaction. The AG concluded that personally identifiable information that could tie a voter's identity to their specific selections is confidential under the secret-ballot right and must be redacted before release.

Q: Who supervises access to the ballots?
A: The general custodian of election records or a designee must be present whenever the records in ballot box no. 4 are inspected, and access follows the custodian's reasonable rules during regular business hours.

Background and statutory framework

When a voter spoils a ballot, the voter returns it for a new one, the election officer logs it on a register, and the spoiled ballot goes into ballot box no. 4 (Tex. Elec. Code § 64.007). At the close of the election, the presiding judge delivers locked ballot box no. 4, with the spoiled ballots and their register, to the general custodian of election records (id. §§ 66.021, 66.026, 66.051(b)). Those are "precinct election records" (id. § 66.002), and the custodian must preserve them for at least 22 months after election day (id. § 66.058(a); 13 Tex. Admin. Code § 7.125(a)(10) (2020)). The 60-day secure-storage rule in subsection 66.058(b) applies to voted ballots, which are delivered in ballot box no. 3 (id. §§ 51.033(d), 66.025(a)(1)).

Election Code section 1.012(c) makes all election records public information except as otherwise provided by the Election Code or the Public Information Act (Chapter 552), and the AG concluded spoiled ballots are "election records" under section 1.012(d). The Public Information Act's exceptions (Gov't Code §§ 552.101-.163) do not address spoiled ballots, and nothing in the Election Code makes them confidential, a reading consistent with the AG's prior opinion KP-0411 (2022) and earlier open-records letter rulings. The only confidentiality limit comes from the constitutional right to a secret ballot (Tex. Const. art. VI, § 4), which, as recognized in KP-0411 and in Wood v. State ex rel. Lee, 126 S.W.2d 4 (Tex. 1939), and Carroll v. State, 61 S.W.2d 1005 (Tex. Crim. App. 1933), protects information that could tie a voter to their selections. Because a governmental body has no discretion to release information confidential by law (Gov't Code § 552.007), the custodian must redact such voter-identifying information.

Citations and references

Statutes:

• Tex. Elec. Code § 66.058 — preservation of precinct election records (22 months) and voted ballots (60 days)
• Tex. Elec. Code § 1.012 — election records are public information
• Tex. Const. art. VI, § 4 — secret ballot

Key cases:

• Wood v. State ex rel. Lee, 126 S.W.2d 4 (Tex. 1939) — secret-ballot protection of voter-identifying information
• Carroll v. State, 61 S.W.2d 1005 (Tex. Crim. App. 1933) — same

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0463
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2024/kp-0463.pdf

Original opinion text

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

May 1, 2024

The Honorable Dee Hobbs
Williamson County Attorney
405 M.L.K. Street, #7
Georgetown, Texas 78626

Opinion No. KP-0463

Re: Whether a member of the public may obtain copies of spoiled ballots on the 61st day following election day (RQ-0520-KP)

Dear Mr. Hobbs:

On behalf of the Williamson County Elections Department, you ask "whether physical copies of spoiled ballots in ballot box 4 can be made available to the public" sixty-one days after election day.¹ We begin by examining the handling of spoiled ballots at the polling place, the distribution of spoiled ballots at the close of the election, and the preservation of spoiled ballots following the election.

The Election Code dictates the handling of spoiled ballots at the polling place, the distribution of spoiled ballots at the close of the election, and the preservation of spoiled ballots following the election.

Election Code section 64.007 is titled "Spoiled Ballot." TEX. ELEC. CODE § 64.007. It provides that "[i]f a voter mismarks, damages, or otherwise spoils the ballot in the process of voting, the voter is entitled to receive a new ballot by returning the spoiled ballot to an election officer."² Id. § 64.007(a). A spoiled ballot returned by a voter to an election officer is accounted for on a register maintained by the officer at the polling place.³ Id. § 64.007(c) (requiring an election officer to "enter on the register the name of each voter who returns a spoiled ballot and the spoiled ballot's number"). After entering the required information about the spoiled ballot on the register, the election officer deposits the spoiled ballot in ballot box no. 4.⁴ Id. § 64.007(d); see also id. § 51.033(a), (c)–(e) (requiring four ballot boxes, each for a different purpose, be used at each polling location in an election).

The disposition of records and supplies at the close of the election is generally governed by Election Code chapter 66. Id. §§ 66.001–.062. Subsection 66.021(a) instructs the presiding judge, upon completing the election returns for the precinct, to "assemble the precinct election records and place them in the appropriate envelopes and ballot boxes for distribution." Id. § 66.021(a). The term "precinct election records" is defined to mean "the precinct election returns, voted ballots, and other records of an election that are assembled and distributed under" chapter 66. Id. § 66.002 (emphasis added). Spoiled ballots are assembled and distributed under chapter 66; thus, they are precinct election records. Specifically, chapter 66 directs that the spoiled ballots along with the spoiled ballot register be placed in ballot box no. 4 and delivered by the presiding judge to the general custodian of election records. Id. §§ 66.021(b) (requiring the judge to lock ballot box no. 4 when it is ready for distribution), 66.026(2), (3) (providing that "[b]allot box no. 4 must contain" among other things, the register of spoiled ballots and any spoiled ballots), 66.051(b) (requiring the presiding judge to deliver "ballot box no. 4 and its key in person to the general custodian of election records"); see also id. § 127.067(c) (relating to disposition of precinct election records in election using electronic voting system instead of paper ballots).

Once delivered to the custodian, "[t]he records in ballot box no. 4 may be preserved in that box or by any other method chosen by the custodian."⁵ Id. § 66.058(f). As precinct election records, spoiled ballots must be preserved by the custodian "for at least 22 months after election day."⁶ Id. § 66.058(a); see also 13 TEX. ADMIN. CODE § 7.125(a)(10) (2020) (Tex. State Libr. & Archives Comm'n, Records Retention Schedules) (setting out "Local Schedule EL: Records of Elections and Voter Registration, 4th Edition" which requires that spoiled ballots be retained "[e]lection day + 22 months").

You suggest that spoiled ballots may be subject to the preservation period in subsection 66.058(b). See Request Letter at 3–4. Subsection 66.058(b) directs that "[f]or 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." TEX. ELEC. CODE § 66.058(b) (emphasis added); see also id. § 1.012(f)–(h) (addressing the availability of voted ballots for public inspection). But spoiled ballots are not voted ballots as exemplified by the fact that spoiled ballots are delivered to the custodian in ballot box no. 4 while voted ballots are delivered to the custodian in ballot box no. 3. Id. §§ 51.033(d) (providing "[b]allot box no. 3 is used for delivering the voted ballots to their custodian"), 66.025(a)(1) (providing "[b]allot box no. 3 must contain . . . the voted ballots"). As a result, subsection 66.058(b) is not relevant to your question.

With that background and clarification, we consider whether copies of spoiled ballots preserved in ballot box no. 4 are available to the public during the 22-month preservation period.

The Election Code designates spoiled ballots preserved in ballot box no. 4 as public information subject to disclosure.

Section 1.012 of the Election Code generally requires the custodian to make election records available to the public unless the records are expressly excepted by the Public Information Act or the Election Code. Id. § 1.012(c) ("Except as otherwise provided by [the Election Code] or Chapter 552, Government Code [the Public Information Act], all election records are public information."); Tex. Att'y Gen. Op. No. KP-0411 (2022) at 3. "Election records" include anything distributed or received by government under the Election Code or required by law to be kept by others for information of government under the Election Code, as well as any document or paper issued or received by government under the Election Code. TEX. ELEC. CODE § 1.012(d). Thus, spoiled ballots are not only "precinct election records" that must be preserved under subsection 66.058(a) but also "election records" available to the public under Election Code subsection 1.012(c). We must then examine whether spoiled ballots are expressly excepted from disclosure to the public by the Public Information Act or the Election Code.

Subchapter C of the Public Information Act establishes the exceptions to the general rule that public information shall be made available to the public. See TEX. GOV'T CODE §§ 552.101–.163 ("Information Excepted from Required Disclosure"). No section within that subchapter expressly addresses spoiled ballots or excepts them from disclosure.⁷ See id. Likewise, no provision in the Election Code designates spoiled ballots as confidential or otherwise prohibits their disclosure to the public. A court would likely conclude that, by requiring that the public have access to election records, the Legislature thereby authorizes the election records custodian's entry to ballot box no. 4 to respond to a public information request for copies of spoiled ballots. This entry must be made in accordance with the time and manner requirements prescribed by statute, the Secretary of State, and the custodian. See, e.g., TEX. ELEC. CODE §§ 1.012(a), (b) (requiring that an election record that is public information "be made available to the public during the regular business hours of the record's custodian" and allowing the custodian to adopt reasonable rules regarding access to the records), 66.058(h) (authorizing the Secretary of State to instruct elections administrators on compliance with section 66.058 for elections involving federal office), 66.057(b) (requiring the general custodian of election records or the custodian's designee be present at all times when the records in ballot box no. 4 are inspected).

Any personally identifiable information contained in election records that could tie a voter's identity to their specific voting selections must be redacted for purposes of disclosure to protect the constitutional right to a secret ballot in Texas.

That copies of spoiled ballots preserved in ballot box no. 4 are available to the public during the 22-month preservation period does not mean some information on an individual ballot may not be confidential.⁸ A recent opinion of this office explained that "the right to a secret ballot has been held to protect personally identifiable information contained in election records that could tie a voter's identity to their specific voting selections." Tex. Att'y Gen. Op. No. KP-0411 (2022) at 4 (citing Wood v. State ex rel. Lee, 126 S.W.2d 4, 9 (Tex. 1939) and Carroll v. State, 61 S.W.2d 1005, 1008 (Tex. Crim. App. 1933)); see also TEX. CONST. art. VI, § 4. Therefore, a court would likely find that personally identifiable information contained in an election record, including a spoiled ballot, that could tie a voter's identity to their specific voting selections is excepted from public disclosure. As a result, the election records custodian must redact any such personally identifiable information to protect the constitutional right to a secret ballot in Texas. See TEX. GOV'T CODE §§ 552.007 (providing that a governmental body has no discretion to release information deemed confidential by law), 552.301–.310 (setting out the procedure for a decision from the attorney general regarding whether information may be withheld).

SUMMARY

The Legislature has established procedures aimed at both preserving spoiled ballots and granting public access to them.

Section 66.058 of the Election Code requires spoiled ballots be preserved in ballot box no. 4 or by any other method chosen by the election records custodian during a 22-month preservation period. Section 1.012 establishes spoiled ballots as public information and requires the custodian to make the ballots available to the public. By expressly requiring the custodian to provide public access to such records, the Legislature authorized entry into ballot box no. 4 for such purpose during the 22-month period. Thus, members of the public may obtain copies of spoiled ballots preserved in ballot box no. 4 during the 22-month preservation period.

Personally identifiable information contained in election records that could tie a voter's identity to their specific voting selections is confidential and excepted from public disclosure. Thus, any confidential information on a spoiled ballot must be redacted for purposes of disclosure in order to protect the constitutional right to a secret ballot.

Very truly yours,

KEN PAXTON
Attorney General of Texas

BRENT WEBSTER
First Assistant Attorney General

LESLEY FRENCH
Chief of Staff

D. FORREST BRUMBAUGH
Deputy Attorney General for Legal Counsel

AUSTIN KINGHORN
Chair, Opinion Committee

CHRISTY DRAKE-ADAMS
Assistant Attorney General, Opinion Committee

Footnotes:

¹ Letter from Honorable Dee Hobbs, Williamson Cnty. Att'y, to the Off. of the Att'y Gen., Op. Comm. at 1, 4 (Nov. 3, 2023), https://www.texasattorneygeneral.gov/sites/default/files/request-files/request/2023/RQ0520KP ("Request Letter").

² A poster with instructions about "securing an additional ballot if the voter's original ballot is spoiled" must be posted at each voting station and polling place. TEX. ELEC. CODE § 62.011(a), (c)(4); see TEX. SEC'Y OF STATE, VOTER INFORMATION POSTER, available at https://www.sos.state.tx.us/elections/forms/pol-sub/7-36f.pdf; see also TEX. ELEC. CODE § 62.0115(b)(3) (requiring notice of voters' rights, including information about spoiled ballots).

³ The Secretary of State is charged with creating the register form. See TEX. ELEC. CODE § 64.007(c); TEX. SEC'Y OF STATE, REGISTER OF SPOILED BALLOTS, available at https://www.sos.state.tx.us/elections/forms/pol-sub/7-93f.pdf.

⁴ The Secretary of State prescribes the use of an envelope to keep spoiled ballots separate from other ballots that are returned in ballot box no. 4. See TEX. ELEC. CODE § 51.033(e) (specifying that "[b]allot box no. 4 is used for delivering defectively printed, spoiled, and unused ballots to their custodian after the election"); TEX. SEC'Y OF STATE, ENVELOPE FOR SPOILED BALLOTS, available at https://www.sos.state.tx.us/elections/forms/pol-sub/7-77f.pdf.

⁵ If removed from ballot box no. 4, the records "may not be commingled with any other election records kept by the custodian." TEX. ELEC. CODE § 66.058(f).

⁶ With some exceptions, the records may be destroyed or otherwise disposed of after the preservation period. Id. § 1.013.

⁷ For instance, as you note, previous open records letter rulings issued by this office conclude that spoiled and unused ballots may not be withheld under Government Code section 552.101. See Request Letter at 3 (citing Tex. Att'y Gen. OR2001-2842); see also Tex. Att'y Gen. OR2009-10257 (concluding unused ballots were not confidential by law); Tex. Att'y Gen. OR2001-3228 (concluding spoiled and unused ballots were not confidential by law).

⁸ Briefing received by our office suggests that spoiled ballots, either alone or in combination with other information (e.g., the register of spoiled ballots), "can contain information identifying a voter's selections . . . ." Brief from Jennifer Doinoff, Pres., Tex. Assoc. of Elections Administrators at 1 (rec'd Dec. 19, 2023) (on file with the Op. Comm.).