Stephens County Commissioners vote to file lawsuit against Texas Attorney General about request for election information
By Carla McKeown/Breckenridge Texan
The Stephens County Commissioners voted Monday morning, May 1, to approve Bob Heath with Bickerstaff Heath Delgado Acosta LLP to file a lawsuit on behalf of Stephens County against Texas Attorney General Ken Paxton about a ruling Paxton made concerning some public information requests related to the November 2022 election.
According to the draft of the “Petition for Declaratory Judgment,” Mike Wallis requested copies of all of the contents of the “portable storage media devices,” aka “USB flash drives” or “USB thumb drives,” used in Stephens County in the November 2022 election. Wallis also requested “the ability to inspect the devices themselves,” the petition states.
Stephens County Tax Assessor/Elections Administrator Christie Latham talks to the County Commissioners about the public information request she received. (Photo by Tony Pilkington/Breckenridge Texan)
The flash drives requested are used in the voting machines that Stephens County uses during elections. Stephens County Tax Assessor/Elections Administrator Christie Latham said that providing the information “in native format,” as requested, would reveal proprietary information from Election Systems and Software, the company that makes the voting machines.
County Judge Michael Roach explained that when she first received the request for the information, Latham sought the advice of Heath, who the County retains for elections questions and protocol and who assisted the County with a recount following the 2022 primary runoff election for the Texas House or Representatives District 60 Republican nomination. The recount was requested by Mike Olcott, who was running against incumbent Glenn Rogers, for the position. Rogers’ win was confirmed by the recount, which found no discrepancies.
Heath advised Latham to seek an opinion from the Attorney General about the request, Roach said.
The election data on the flash drives can be released 22 months after the election, but it would be released in a format that is different from the request. For example, Latham can provide print-outs with the voting information that would not include the proprietary information. Based on the request for “all the contents” “in native format,” such print-outs would not fulfill the request.
According to the draft of the Petition for Declaratory Judgment, the Attorney General ruled on April 19 that the County is not required to release the actual flash drives but must release “the requested information.” In the draft, Heath says that the AG’s prior decisions indicated that releasing the information would violate federal law, would compromise the security of the voting systems and is protected proprietary information.
The reason for the ruling from the AG’s office was because Stephens County did not provide a copy of the requested information to the Attorney General for his review. Heath states in the petition that in their original letter to the AG, Stephens County stated that they could not supply a copy of the information because it is sealed until September 2024, as required by the Texas Election Code.
The County is prohibited from asking the AG to reconsider his ruling, leaving the lawsuit as the only method for challenging the ruling, Heath’s document states.
Roach said that three other counties — Travis, Williamson and Harris — have filed similar lawsuits.
The County Judge said that he thinks the public information request is rooted in “wild rumors” that persist about the 2020 election and that have been proven false.
“I think what they’re trying to preserve is a record where … the kind of equipment that we use, somehow, was instrumental in a particular party winning or losing. And that’s just not the fact,” Roach said. “We had an intervening election in 2022 where we hand-counted — to the number — what our machine says. So there’s no flipping of votes, and all these other wild conspiracy theories that abound. And I think as a county we should follow the advice of our attorney, for one, for liability reasons, but the other reason, is that at some point, you’ve got to stand for the facts.”
The commissioners voted unanimously to have Heath file the lawsuit.
Cutline, top photo: County Judge Michael Roach explains why the County can’t release the election information requested. Pictured, clockwise, from left, are Christie Latham, Mark McCullough, David Fambro, Jackie Ensey, Michael Roach, Eric O’Dell and Will Warren. (Photo by Tony Pilkington/Breckenridge Texan)
