In the aftermath of the 2020 elections, state lawmakers across the ideological spectrum say they are aiming to restore trust in the electoral process. And one of their methods is to enhance the transparency of ballots and associated materials.
In recent years, efforts to provide greater public access to records related to ballot counting (including ballot images), cast vote records (how electronic tabulation equipment reads and counts ballot selections), voter lists, and even physical ballots themselves, have increased tremendously. But these policies – and their implications – are not all created equally.
When set up with appropriate safeguards, transparency measures such as these can increase confidence in elections and reduce the risk of unfounded conspiracy theories. When lacking safeguards, however, they can have a damaging effect on our democracy by opening the door to greater likelihood of baseless election contests, intrusion of privacy, and harassment of voters.
Below are a few examples of new transparency efforts that either make – or miss – their stated aim.
Since 1960, federal law has required election officials to retain all records for any election for federal office for at least 22 months after the date of the election. The retention requirement applies to any record related to registration, applications for ballots, and all records (including ballots) related to voting, counting, and canvassing the election. States must comply with this minimum requirement, but many establish additional requirements for post-election retention of records. For example, Texas law requires the voted ballots to be held in a locked, secure container that may only be opened for very specific reasons during the entire 22-month period.
The greater demand for public access to election records (including voted ballots) in recent years has come in direct tension with these federal and state mandates. To resolve this tension, state and local officials have taken different approaches.
Several Colorado counties are piloting programs to post ballot images online as an additional “audit tool” allowing interested members of the public to verify the election. Generally, prospective viewers must register with the county and will only have access to ballot images that have been subject to review and redaction by election officials to remove any identifying information – a process that takes 18 months to complete. Additionally, voters typically must create an account to access the information online; thus allowing election officials to track who has access.
And over in Wisconsin, Dane County has for the past few years provided public online access to ballot images and cast vote records to allow members of the public to compare ballot selections for any ballot with how they are recorded by tabulation equipment. Importantly, Dane County does not also post a list of all voters who cast a ballot – thus protecting ballot secrecy and preventing harassment of voters by self-appointed “auditors.”
This year, several states are considering new legislation to make election records publicly available shortly after Election Day. However, unlike the local examples out of Colorado and Wisconsin above, many of these proposals could unfortunately lead to negative consequences for both voters and for public trust since they lack sufficient safeguards for constitutionally protected ballot secrecy and voter privacy.
In Arizona, for example, legislation (S.B. 1324) recently passed the Senate that would require county officials to post a list of each voter who voted in an election (including their street addresses), ballot images, and cast voter records within 48 hours of completion of the county canvass. Critics have pointed out the legislation could threaten the secrecy of ballots for voters in smaller precincts, or that online sleuths could use the information to determine an individual voter’s choices. They have also argued that posting voters’ street addresses could fuel the sorts of harassing, door-to-door, post-election canvasses Arizona saw following the 2020 election.
Arizona’s proposal is also flawed because it will be impossible for the state to ever post complete election records because certain voters (e.g., judges and law enforcement professionals, intimate partner survivors, etc.) may understandably opt to keep their records confidential under state law. In a scenario where vigilante inspectors check incomplete information against state certification, unfounded election conspiracies could fester once again.
In Texas, legislation (H.B. 5180) recently heard in the House Elections committee would provide public access to voted ballots, cast vote records, ballot images, and other election records beginning 61 days after Election Day – the day after the deadline to file an election contest. This proposal was likely drafted in response to a non-binding Texas Attorney General opinion from 2022 that argued that, despite the federal and state laws concerning secure ballot retention discussed above, voted ballots are public records that may be accessed by the general public shortly after Election Day. This has led to litigation in at least three counties seeking clarification about how to proceed in light of the conflict between current state and federal law and the Attorney General’s guidance.
Importantly, this legislation, if enacted, would still conflict with federal and state law and contains no safeguards for chain of custody of the ballots and other records. Other states, such as Florida, have laws allowing for public inspection of ballots; however, only election officials may handle the actual, official ballots if the inspection occurs during the statutory retention period.