Texas Tribune
Fixing ballot secrecy in Texas won’t be easy, experts say
by By Natalia Contreras, Votebeat and The Texas Tribune, The Texas Tribune – 2024-06-26 11:00:00
SUMMARY: The article addresses challenges and measures to ensure ballot secrecy amidst increased calls for election transparency. Pam Anderson's test from Colorado a decade ago revealed that linking a ballot to its voter was possible, prompting the state to enhance voter privacy. In Texas, recent revelations showed that public records could expose voter choices, leading to emergency guidance from state officials to prevent such breaches. Texas faces added burdens on local election officials for redactions and maintaining voter privacy, highlighting the need for balancing transparency and secrecy. Other states like Colorado and North Carolina have also implemented measures to protect voter anonymity.
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When Pam Anderson was a county elections clerk in Colorado about a decade ago, she worried about whether the state's increasingly transparent election process had made it possible to link a ballot to the voter who cast it.
As a test, she asked her staff in Jefferson County to see whether they could find a ballot that she had cast in a previous election.
It took them less than 20 minutes.
“It was a big revelatory moment to know this could be possible,” said Anderson, now an election administration expert and consultant.
Since then, Colorado has taken steps to protect a voter's right to a secret ballot: Election officials there remove the voting method and polling location from public reports detailing voter participation. The state has invested in training election officials to redact information from the records it releases publicly, and purchased technology to help make those redactions more efficiently, Anderson said.
Such measures could help point the way forward for Texas, where recent laws enacted in the name of increasing election transparency have made it possible — in limited instances — to use public records and data to determine how individual voters voted.
The vulnerabilities came into public view last month, after a right-wing news site published what it said was the ballot a former Texas GOP chair cast in this year's Republican primary. Votebeat and The Texas Tribune were able to verify that the private choices some voters make in the voting booth could be identified using public, legally available records.
Texas Secretary of State Jane Nelson and her staff were aware of the risk that voters' choices could be exposed to public discovery, and election administrators across the state had been warning about it.
But it wasn't until after the Votebeat and Texas Tribune report that Nelson's office and Texas Attorney General Ken Paxton issued emergency guidance to election officials, instructing them to stop releasing information that can help expose how people voted.
This week, Nelson's office quietly issued an additional directive that will require even more redactions and aim to limit opportunities for members of the public to cross-reference records and pinpoint a particular voter's ballot.
The guidance from Nelson and Paxton adds to the burdens on local election officials to figure out what information they have to redact in a given case to prevent records from being used to link individual voters with a specific ballot or ballot image.
Limiting threats
Other states have already contended with the tension between ballot secrecy and transparency. Striking the right balance between those two goals, experts say, is neither quick nor easy.
To fully protect all voters' private choices, Texas will need to provide additional support and resources to local election administrators whose voting systems, equipment, and recordkeeping procedures vary by county, experts said.
Anderson, who was the Republican nominee for Colorado secretary of state in 2022, said election officials will need time to work through the problem, taking into account all the specifics that apply — everything from the types of voting systems used in the state and the turnout in individual elections to the types of documents election officials must release.
Some local election officials said the state's initial guidance to redact was too broad. Redacting “is not an easy fix and it can't be a cookie-cutter thing for everyone,” said Trudy Hancock, the Brazos County elections administrator.
During a House Elections Committee hearing earlier this month, Christina Adkins, head of the elections division in the Texas Secretary of State's Office, acknowledged during questioning that county clerks and election officials performing redactions would still have access to records that could tie a voter to their ballot.
“That's why I think that this is a short-term solution, and why there needs to be some bigger discussions about how to prevent this issue from occurring on the front end of the election,” Adkins said.
The latest guidance from Nelson's office, obtained by Votebeat earlier this week, will require more redactions. It prohibits counties from using electronic poll books — the equipment used to check in voters at polling sites — to generate and print numbers on ballot paper. That stems from concern that such numbers, which link the ballots to the device used to check in the voter, could later be cross-referenced with other information to pierce ballot secrecy.
This directive will force multiple counties including Dallas, Travis, and Williamson to quickly change their procedures and revamp their worker training in a presidential election year. Some counties will also have to order new paper ballot stock in order to comply, an unexpected expense. That new ballot stock will be sequentially numbered, and those numbers will then have to be redacted in order to avoid creating yet another ballot secrecy risk.
Balancing act
The U.S. adopted the secret ballot in the late 19th century in an attempt to address issues of vote-buying and voter intimidation For decades, election officials across the country have striven to find the best ways to protect voters' ballot secrecy.
Following the passage of the Help America Vote Act of 2002, election technology evolved, chain-of-custody procedures improved, more jurisdictions switched to using paper ballots, and election records became much more detailed. These are the changes that prompted Anderson's request to her staff more than a decade ago.
In areas with very small voter precincts and low turnout, the risk of identifying how someone voted also increased. And the way in which election-related data is disclosed can add to the risk.
In Colorado, an effort to allow 16-year-olds to vote in school district elections four years ago failed over ballot privacy questions. The issue was that only a small number of teens in each precinct would have obtained the specific ballot style for school district elections, making it easier to tie such voters to individual ballots.
In Texas, when someone voted and by what means are considered public information. Each county reports what kind of ballot — in-person, mail, provisional, overseas — a voter cast and whether they voted early or on election day. Many other types of information are also available through open-records requests, or published online, including data from electronic poll books used at individual voting precincts; “cast vote records,” the electronic representation of how voters voted; and ballot images, which are copies of actual ballots as marked by voters.
The push to make more records public grew in Texas after the 2020 presidential election as conspiracy theories about the outcome took hold in the state.
In contrast, other states have sought to limit the availability of election information to help safeguard ballot secrecy.
Colorado no longer publicly reports election participation by vote method or by location, in part because so few people vote in person there. In addition, the election officials in the state combine and shuffle small batches of ballots to protect anonymity, a technique often used with military and overseas voters.
North Carolina in 2002 banned the public release of cast vote records and voted ballots. This year, a May primary had such low turnout that the State Board of Elections also removed precinct-level results from its website “so that people couldn't use that and our voter history data to see how individuals voted,” said Patrick Gannon, the public information director for the North Carolina State Board of Elections.
With some election data, North Carolina officials are permitted to insert “statistical noise” in certain areas before publishing results, Gannon said. For instance, if all voters in a particular North Carolina precinct voted for the same candidate, the state would add a small, random number of votes to the other candidates in the published vote totals for that precinct — but not in the official, certified results.
That way, “no one could use our precinct data and voter history data to determine how any individual voted,” Gannon said.
The U.S. Census Bureau uses a similar method in its data to protect privacy.
When elections officials employ this tactic, vote counts in specific precincts will differ slightly from those in the final results, which some experts have said could be misleading.
But “if state officials did not add statistical noise to the precinct sorted data, any person could use that dataset, combined with our voter history dataset, to determine how certain people voted in certain situations,” Gannon said, underscoring that the practice does not alter the official results. “We only insert statistical noise where absolutely necessary.”
Potential breaches
Experts say election officials seeking to protect ballot secrecy should first understand how exactly a voters' ballot could be exposed, so they can decide what information really needs to be withheld.
“A lot of the times when we talk about the secret ballot, we don't really specify how the secret ballot could be violated,” said Michael Morse, an assistant professor of law at the University of Pennsylvania whose research focuses on voter registration and election administration.
The key is understanding the mechanism that threatens the secret ballot so that the fix is properly tailored to the threat, he said.
Morse's most recent research, with political science professors Jeff Lewis at the University of California, Los Angeles, and Shiro Kuriwaki of Yale University, examines the extent to which releasing certain election records — such as cast vote records — can identify voters and their ballot choices.
They found that for 99.8% of Maricopa County voters in Arizona's 2020 general election, the release of ballot records did not lead to the revelation of any vote choice. Morse and his colleagues showed that a vote would be revealed there only if all voters in a “reporting group” — for example, a single precinct, or those who voted by a certain method within a precinct — are unanimous in their choice of a particular candidate.
Florida tries to limit this risk by aggregating results in some cases. Election officials there typically report election results by precinct and vote method. But if there are fewer than 10 voters who cast ballots in a particular precinct using a particular method, then by law, election officials report only the aggregated precinct-wide results.
This type of aggregation rule doesn't work perfectly, Morse and his colleagues explained.
“It suppresses some results that would not lead to vote revelation, but might not suppress a few that could,” he said
Morse and his colleagues point to longer-term measures, such as redistricting, as potentially more effective solutions.
“Lining up the district lines for multiple offices to avoid split precincts would increase the number of voters per precinct and thus reduce the extent of revelation,” he said.
Texas election officials have proposed a similar long-term solution that would require the Texas Legislature to increase the minimum number of registered voters allowed in voting precincts. Currently, county election precincts must have at least 100, but not more than 5,000 voters. However, in some large counties, a precinct can have as few as 50 voters.
The Texas Legislature will resume in January.
A new burden
By law, Texas election officials are already required to redact identifiable information in election records such as Social Security numbers, state-issued identification numbers, and phone numbers. But the recent guidance from the Texas Secretary of State's office said they're obligated to do more, if necessary, to protect voter privacy, though they might need to seek guidance from the state attorney general to know whether they're doing too much.
That means an added burden on local election officials.
“It's time consuming, and it requires additional effort on the part of the election administrator, who is working on behalf of the voter to help maintain their privacy and anonymity,” said Tammy Patrick, CEO for programs at the National Association of Election Officials.
Hancock, the election administrator in Brazos County, home to College Station and Texas A&M University, said lawmakers should consider the time and resources that redactions have required in recent years. Hancock's office is one of many election departments across the state that have been flooded with public information requests seeking granular election data. And although her office gets help from the county's public records department, most of the state's smaller counties do not have that support — or funding for software to help with redactions.
“A department with only two people on staff would have to handle that themselves. They'd also be under a time crunch to respond, and they'd also be in the middle of running an election,” Hancock said. “So you would either have to hire somebody to come in and redact that stuff, or they would have to take the other person to stop their duties to redact.”
The concern is not only about time, workers, or resources, she said, but also about figuring out exactly what to redact.
“You never know what information people are going to use to connect the dots,” she said. “What's to stop one person from requesting one thing, another person requesting another thing, another person requesting another thing, and then they all work together to connect those dots?”
Natalia Contreras covers election administration and voting access for Votebeat in partnership with the Texas Tribune. Natalia is based in Corpus Christi. Contact her at ncontreras@votebeat.org.
Disclosure: Texas A&M University and Texas Secretary of State have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.
Just in: Former U.S. Rep. Liz Cheney, R-Wyoming; U.S. Sen. John Fetterman, D-Pennsylvania; and Oklahoma Gov. Kevin Stitt will take the stage at The Texas Tribune Festival, Sept. 5–7 in downtown Austin. Buy tickets today!
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The Texas Tribune is a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.
Texas Tribune
Texas to double state fund aimed at expanding power grid
by By Kayla Guo, The Texas Tribune – 2024-07-01 17:05:54
SUMMARY: The state of Texas plans to double the Texas Energy Fund from $5 billion to $10 billion to expand the power grid as electricity demand is expected to nearly double by 2030. This follows a forecast by the Electric Reliability Council of Texas, which estimated the state's main grid would need to supply nearly twice its current power. The fund, approved by voters in November 2023, offers low-interest loans for new gas-fueled power plants. The state's grid has faced scrutiny since a 2021 winter storm caused extensive outages. Companies must apply for loans by July 27.
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The state of Texas plans to double a state fund aimed at expanding the power grid as demand for electricity is expected to nearly double over the next six years.
The state will look to boost the Texas Energy Fund from $5 billion to $10 billion, Gov. Greg Abbott and Lt. Gov. Dan Patrick announced on Monday. The fund was approved by voters in November 2023 to offer low-interest loans to incentivize development of new gas-fueled power plants.
The announcement comes soon after a new prediction by the state's main grid operator that said electricity needs will surge in the coming years. The Electric Reliability Council of Texas estimated that the state's main power grid would have to provide nearly double the amount of power it currently supplies by 2030.
The numbers in the new forecast, Abbott and Patrick said in a press release, “call for an immediate review of all policies concerning the grid.”
The state's grid came under intense public and legislative scrutiny after a winter storm in 2021 knocked out its operations, causing dayslong power outages across the state in freezing temperatures that left millions of Texans without lights or heat. Hundreds died.
The Texas Energy Fund set aside $5 billion to fund 3% interest loans to help construct new gas-fueled power plants that are not dependent on the weather and that could power 20,000 homes or more.
The fund was also designed to pay out bonuses to companies that connect new gas-fueled plants to the main grid by June 2029, and to offer grants for modernizing, weatherizing and managing vegetation growth around electricity infrastructure in Texas outside the main electricity market, which meets around 90% of the state's power needs.
The state received notices of intent to apply for $39 billion in loans — almost eight times more than what was initially set aside, Abbott and Patrick said. They added that the average plant will take three to four years to complete, and new transmission lines will take three to six years to complete.
Companies have until July 27 to apply for a loan.
Just in: Former U.S. Rep. Liz Cheney, R-Wyoming; U.S. Sen. John Fetterman, D-Pennsylvania; and Oklahoma Gov. Kevin Stitt will take the stage at The Texas Tribune Festival, Sept. 5–7 in downtown Austin. Buy tickets today!
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Texas Tribune
Commanding officer confirms Troy Nehls has two Bronze Stars
by By Isaac Yu, The Texas Tribune – 2024-07-01 13:02:57
SUMMARY: The Texas Tribune reports that the military record of Rep. Troy Nehls has come under scrutiny. A CBS investigation revealed discrepancies in Nehls' service decorations, including claims of a second Bronze Star and a Combat Infantryman Badge (CIB), which the Pentagon has not corroborated. Nehls' former commanding officer, Jason Burke, affirmed awarding him a second Bronze Star in 2008. Despite the Pentagon's records indicating only one Bronze Star and no CIB, Nehls insists on social media that he earned both awards. Nehls, facing criticism, has stopped wearing the CIB, which was revoked in 2023 due to service in a non-combat role.
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WASHINGTON — The commanding officer of a 2008 tour in Afghanistan that included then-U.S. Army Major Troy Nehls told The Texas Tribune that he recalls awarding the now-congressman his second Bronze Star award.
That award — which recognizes service members who show heroism in the field — has been called into question after a CBS investigation reported Nehls had been touting military decorations that did not match his service record provided by the Pentagon. In campaign ads and in his House biography, Nehls, R-Richmond, has posted pictures wearing an Army uniform and two Bronze Star medals. He has also worn the Combat Infantryman Badge lapel pin, awarded to soldiers for service in combat.
The investigation found that the Pentagon reported Nehls received only one Bronze star and that the Combat Infantryman Badge was awarded in error and rescinded in 2023. Nehls, who has been publicly criticized by members of his own party amid the claims of stolen valor, said on social media that he did have two Bronze Stars. But he has since stopped wearing the CIB.
But Jason Burke, the Navy captain who led the 130-person joint task force Nehls served on during his tour, recalled awarding the medal to Nehls. Nehls received the medal at a ceremony with several other officers in the fall of 2008, shortly before Nehls finished his tour and returned to Texas, Burke told the Tribune.
“You're getting that award if you've done a good job and met the criteria,” said the now-retired Burke, who is listed on the award certificate as Nehls' commanding officer. “He earned it, and received it.”
Nehls, who represents a swath of Houston suburbs, served as Burke's second-in-command under a joint effort called Task Force Currahee. Their unit, which included both Army and Navy officers, worked on provincial reconstruction, building roads, clinics and schools in eastern Afghanistan's Ghazni Province. Burke said the team's convoys regularly came under Taliban ambushes and guerrilla attacks.
The Bronze Star award must be recommended by a commander, and any service member in any branch of the military working an operation involving a conflict with an opposing force is eligible. The CIB, by contrast, is only given to those in combat roles.
It was relatively standard during the U.S.'s war on terrorism, after the Sept. 11, 2001, attacks, for officers of certain ranks to receive a some kind of award upon completing a tour, often a Bronze Star. Nehls' first star was awarded for Operation Iraqi Freedom in 2004, where he trained 13 staff members of an Iraqi government office to perform financial assessments, according to the certificate.
A spokesperson for Nehls declined to comment on this story, pointing to a post on X Nehls made last month defending his record and posting photos of the certificates of his two Bronze Stars, and his copy of the underlying nomination forms. Burke's sign-off can be seen on the 2008 documentation, known as a Form 638, along with signatures from two higher-level officials.
CBS reported the Pentagon would conduct another review of Nehls' record. The most recent summary of his service and awards, provided to the Tribune by a Pentagon spokesperson on Friday, lists only one Bronze Star and no CIB.
The systems for keeping records for military awards can be difficult to navigate. A soldier often becomes responsible for making sure awards paperwork is turned over to a personnel officer.
That means documentation for awards sometimes slips through the cracks, according to retired Army sergeant Anthony Anderson, who has investigated numerous instances of stolen valor.
“I wouldn't say it's common, but it does happen,” Anderson said.
Anderson said he had previously spoken with Nehls' chief of staff, encouraging them to submit documentation of the second Bronze Star to the Pentagon to be added to Nehls record.
He said he would be surprised if an officer in Nehls' position hadn't received a Bronze Star.
Nehls' military record has become a thorn for him in recent months. He announced that he would stop wearing the Combat Infantryman Badge last week in response to reports that the badge had been revoked in 2023.
Nehls was found to be ineligible for that badge because he had served in Afghanistan in a civil role, not as a combatant infantryman. Nehls did serve as an infantryman during his time with the Wisconsin National Guard in the 1990s, completing a tour in Bosnia.
Just in: Former U.S. Rep. Liz Cheney, R-Wyoming; U.S. Sen. John Fetterman, D-Pennsylvania; and Oklahoma Gov. Kevin Stitt will take the stage at The Texas Tribune Festival, Sept. 5–7 in downtown Austin. Buy tickets today!
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Texas Tribune
Robert Robertson execution day set in Texas shaken baby case
by By Kayla Guo, The Texas Tribune – 2024-07-01 11:33:10
SUMMARY: A Texas court has scheduled Robert Roberson's execution for October 17. Roberson, sentenced to death in 2003 for his 2-year-old daughter's death, has consistently challenged the conviction, claiming it was based on questionable science. Despite halting his execution in 2016 due to doubts about shaken baby syndrome, the Texas Court of Criminal Appeals upheld his death sentence in 2023. Roberson's attorneys argue new evidence shows his daughter died of natural causes, not head trauma, and question the shaken baby syndrome diagnosis. The execution date triggers deadlines for last-minute legal and clemency filings.
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A Texas court on Monday set an execution date for Robert Roberson, who was sentenced to death in 2003 for killing his 2-year-old daughter but has consistently challenged the conviction on the claim that it was based on questionable science.
Roberson has maintained his innocence while being held on death row for more than 20 years. The Texas Court of Criminal Appeals previously halted his execution in 2016. But in 2023, the state's highest criminal court decided that doubt over the cause of his daughter's death was not enough to overturn his death sentence.
His new execution date is set for Oct. 17.
Roberson's attorneys objected to the scheduling of an execution after Anderson County prosecutors requested on June 17 that a date be set. His attorneys said they have new evidence to bolster their case and that they planned to file a new request to overturn his conviction.
As a result, his attorneys argued, setting an execution date would be “premature and unjust.”
Roberson was convicted of killing his sickly 2-year-old daughter, Nikki Curtis, after he rushed her blue, limp body to the hospital. He said that Nikki fell from the bed while they were sleeping in their home in the East Texas town of Palestine and that he awoke to find her unresponsive. But doctors and nurses, who were unable to revive her, did not believe such a low fall could have caused the fatal injuries and suspected child abuse.
At trial, doctors testified that Nikki's death was consistent with shaken baby syndrome — in which an infant is severely injured from being shaken violently back and forth — and a jury convicted Roberson.
The Court of Criminal Appeals in 2016 stopped his execution and sent the case back to the trial court after the scientific consensus around shaken baby syndrome diagnoses came into question. Many doctors believe the condition is used as an explanation for an infant's death too often in criminal cases, without considering other possibilities and the baby's medical history.
The Court of Criminal Appeals' decision was largely a product of a 2013 state law, dubbed the “junk science law,” which allows Texas courts to overturn a conviction when the scientific evidence used to reach a verdict has since changed or been discredited. Lawmakers, in passing the law, highlighted cases of infant trauma that used faulty science to convict defendants as examples of the cases the legislation was meant to target.
Roberson's attorneys, in their opposition to setting an execution date, cited “overwhelming new evidence” that Nikki died of “natural and accidental causes” — not due to head trauma.
They wrote that Nikki had “severe, undiagnosed” pneumonia that caused her to stop breathing, collapse and turn blue before she was discovered. Then, instead of identifying her pneumonia, doctors prescribed her Phenergan and codeine, drugs that are no longer given to children her age, further suppressing her breathing, they argued.
“It is irrefutable that Nikki's medical records show that she was severely ill during the last week of her life,” Roberson's attorneys wrote, noting that in the week before her death, Roberson had taken Nikki to the emergency room because she had been coughing, wheezing and struggling with diarrhea for several days, and to her pediatrician's office, where her temperature came in at 104.5 degrees.
“There was a tragic, untimely death of a sick child whose impaired, impoverished father did not know how to explain what has confounded the medical community for decades,” Roberson's attorneys wrote.
They have also argued that new scientific evidence suggests that it is impossible to shake a toddler to death without causing serious neck injuries, which Nikki did not have.
And they cited developments in a similar case in Dallas County, in which a man was convicted of injuring a child. His conviction was based in part on now partially recanted testimony from a child abuse expert who provided similar testimony on shaken baby syndrome in Roberson's case. Prosecutors in Dallas County have said the defendant should get a new trial.
In 2023, when the Court of Criminal Appeals denied Roberson a new trial, prosecutors argued that the evidence supporting Roberson's conviction was still “clear and convincing” and that the science around shaken baby syndrome had not changed as much as his defense attorneys claimed. Witnesses also testified at trial that Roberson had a bad temper and would shake and spank Nikki when she would not stop crying.
The scheduling of Roberson's execution triggers a series of deadlines for any last filings in state and federal court to seek relief and begin a request for clemency.
Just in: Former U.S. Rep. Liz Cheney, R-Wyoming; U.S. Sen. John Fetterman, D-Pennsylvania; and Oklahoma Gov. Kevin Stitt will take the stage at The Texas Tribune Festival, Sept. 5–7 in downtown Austin. Buy tickets today!
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The Texas Tribune is a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.
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