Early voting records are public. That includes the applications for ballots by mail, a fact that I considered too obvious to dispute, until I ran across accounts of a pending election contest involving a state representative.
Representative Lon Burnam, who represents House District 90 in the Texas Legislature, lost in the March 4, 2014 Democratic Party primary to Ramon Romero Jr. This loss prompted Rep. Burnam to file an election contest, arguing that the outcome of the primary was skewed by absentee ballot requests that he thinks should have been rejected. The margin of loss is small (around 111 votes out of some 5,000 votes cast), and as is often the case, this circumstance makes an election contest more attractive.
Burnam’s lawsuit has gotten some press over the last few days, because the Texas Supreme Court shot down Burnam’s discovery request for copies of the applications for ballots by mail. The twist here is that a Burnam alleges that a substantial number of the applications were submitted electronically (rather than by the traditional methods of mail, in-person delivery, or via fax). Whether this was actually the case or not is unclear – it is possible that campaign workers were merely using iPads with targeted voter registration lists, but may have given paper applications to the voters.
In any case, Burnam wanted to see copies of all the applications, so that he could see if there was any funny business vis-a-vis the early voting.
Here’s what the law says about requesting ballots by mail:
An application must be submitted to the early voting clerk by:
(2) common or contract carrier; or
(3) telephonic facsimile machine, if a machine is available in the clerk’s office.
Notice that the law doesn’t authorize applications via iPad app, laptop or Skype, or any other cool modern technology. People commenting on the lawsuit have tended to focus on the public policy arguments for and against expanding the ways in which people could request ballots by mail, and the consensus seems to be that the law seems out-of-date.
Keep in mind that there is a signature comparison issue here – before ballots by mail can be accepted, a group of election workers have to compare the signatures on the applications for ballots with the signatures on the ballot carrier envelopes. If the signatures don’t match, ballots can be rejected. One issue is whether an electronic method of transmission allows for a sufficiently accurate and detailed reproduction of a voter’s signature so that the comparison between the two documents can be made. Tex. Elec. Code Sections 87.027(i), and 87.041(b).
The discovery argument went badly for Representative Burnam – the county fought releasing the applications on the grounds that those documents contain sensitive private information, and the judge agreed. (This story from the Fort Worth Star-Telegram covers some of the background).
And frankly, this result is wrong. As a basic matter (and with a few rare exceptions involving Social Security number and drivers’ license number information in voter registration) every document generated by an election is a public record (Tex. Elec. Code Section 1.012), including all of the applications for ballots by mail. The only limitation is an embargo on public inspection until the first business day after the election; the statute makes explicit that public inspection of the applications is allowed after that time. Tex. Elec. Code Section 86.014.
In order to be able to audit an election, any person must be able to march into the early voting clerk’s office and ask to see the original applications for ballots by mail – unredacted, and unedited. Privacy concerns do not apply, because when voters vote, they are taking the reins of government into their hands, and we are all entitled to know which of us exercised our franchise. This shouldn’t even be a topic of litigation – a simple public information request should allow for inspection and copying of any and all applications for ballots by mail as a matter of routine.