On Aug. 17, 2022, the Attorney General issued a new opinion, KP-0411, which overrules ORD-505 and suggests the public has a right of access to voted ballots during rather than after the statutorily mandated preservation period. We note that there were no substantive changes in the law concerning preservation of election records between the issuance of ORD-505 and the new opinion. We also note the Texas Secretary of State submitted a letter to the Attorney General in which it urged him to uphold the prior interpretation of law.
KP-0411 represents the Attorney General's opinion on the proper interplay between the requirements of the Public Information Act and the Election Code's right of access to public information and state and federal requirements of maintaining ballots securely after the completion of the election.
The Attorney General opines in KP-0411 that compliance with a request under the Public Information Act is an authorized ground for entry into the locked ballot boxes and secured containers containing voted ballots. Because it is an authorized ground, the boxes and containers with voted ballots may be opened multiple times during the preservation period as necessary to comply with the request. The Attorney General also states that the access is specific to "anonymous voted ballots."
The opinion provides that the general custodian of election records and the Secretary of State both may establish procedures to accomplish the twin priorities of maintaining security of the voted ballots and providing the required public access. The Attorney General does not provide guidance on how general custodians of election records are meant to accomplish these simultaneous goals.
We understand that while the Secretary of State may offer guidance on how to maintain the security of the voted ballots and other records, they likely will defer to the Attorney General on issues concerning compliance with the Public Information Act.