Who has the power to pick the kind of ballots Tarrant County uses for elections? The public couldn’t get an answer at a Commissioners Court meeting on Tuesday.
Two weeks ago, the Tarrant County Election Board voted along party lines to start using prenumbered ballots, a move Republicans called a victory for election security. Critics pointed out there is no evidence of widespread voter fraud.
Republican County Judge Tim O’Hare said adopting prenumbered ballots was one of the top requests he heard from constituents.
The Election Board includes O’Hare, Sheriff Bill Waybourn, local Republican Party Chair Bo French, Democratic Party Chair Crystal Gayden, and Elections Administrator Clint Ludwig. Ludwig, whose role is appointed and non-political, recused himself from the vote.
According to state law, a county’s Election Board procures materials needed for elections. The authority for picking which materials to use, however, lies with Ludwig, Democratic County Commissioner Alisa Simmons said at Commissioners Court, referencing a private conversation she had with county attorney Mark Kratovil.
“What you’ve told us before is yes, the elections administrator can decide to use the pre-numbered paper or stick with the blank paper. That’s the answer you’ve given,” she said to Kratovil.
During the meeting, Kratovil would not confirm or deny what Simmons claimed, even as she asked him for specifics. He confirmed the Election Board is in charge of procuring materials, and Ludwig runs elections, but he could not provide legal analysis in an open meeting due to attorney-client privilege, he said. He offered to go into specifics behind closed doors.
KERA News reached out to Elections Administrator Clint Ludwig for clarification.
“That crosses into the legal realm and I will defer to the comments made by [Kratovil] today in Commissioner Court,” Ludwig wrote in a text message.
When asked who has the power to decide which ballots to use, the Tarrant County District Attorney’s Office responded via email.
"The Election Administrator procures and distributes election supplies subject to the approval of the Election Board,” spokesperson Anna Tinsley Williams wrote.
KERA followed up by asking whether the Election Board is allowed to tell the elections administrator what to do.
When reached for comment, O’Hare’s spokesperson Ruth Ray provided a link to the state statute about the Election Board’s responsibilities.
“We encourage you to read Section 51.001 and 51.003 of the Election Code concerning Election Supplies and the Election Board’s responsibility to procure and allocate supplies,” Ray wrote in an email.
Election attorney Beth Stevens, who previously worked for Harris County’s election office and the Texas Civil Rights Project, said the elections administrator, not the Election Board, has the power to choose the type of ballots a county uses.
“The decision how to number ballots is a task that falls directly to the elections official — in this case, the elections administrator,” Stevens said.
She pointed to a 2022 Texas Attorney General opinion, answering a question about ballot numbering from Hood County.
“For such elections taking place in Hood County, the elections administrator is the authority responsible for having the official ballot prepared, including selecting the ballot numbering method,” the opinion states.
The Election Board took its power to procure election materials, and the election administrator’s power to decide how to number ballots, and “sort of mushed those two together in their vote,” Stevens said.
“It's an interesting situation given that the elections administrator, one, recused himself from the vote of the board, and then two, seemed to sort of concede the authority to the Election Board when it doesn't seem that the Election Board had the authority to do that,” Stevens said.
Past agendas for the Election Board show it meets infrequently to approve the procurement of election supplies, appoint people to the Early Voting Ballot Board and to discuss upcoming or recent elections. That falls more within the normal realm of what Election Boards do, Stevens said.
KERA News has reached out to the Texas Secretary of State’s Office, which oversees elections, about whether the Tarrant County Election Board acted appropriately.
At the meeting Tuesday, Simmons tried to get the county attorney to answer questions publicly by waiving the county’s attorney-client privilege. She put the waiver up to a vote.
Initially, the waiver seemed to pass. On the screen showing commissioners’ votes, Republican Commissioner Gary Fickes’ vote was marked as “yes” to waive attorney-client privilege.
After the votes popped up, Republican County Judge Tim O’Hare turned to Fickes on his left and asked, “Are you voting for this?”
“He has voted,” Simmons said.
“I will run the court, you will not,” O’Hare shot back.
After more back-and-forth, Simmons urged O’Hare to “look up” at the screen to see Fickes’ true vote.
“Have a semblance of class. That’s all you have to do. Just a semblance,” O’Hare said. Then he asked Fickes if he wanted to vote yes or no.
Fickes asked for clarification on what a yes or no vote would mean, and O’Hare explained. Simmons insisted Fickes had already voted.
“He reached over and voted, Tim,” Simmons said.
Fickes said he hadn’t voted yet or pressed any button.
After O’Hare repeated the stakes of the vote, Fickes voted against waiving attorney-client privilege, and the motion failed 2-3, Democrats against Republicans.
Simmons laughed.
“Can you reach over here and hit my button every time I’m distracted?” Simmons said to her Democratic colleague, Commissioner Roy Charles Brooks.
Tarrant County faced questions about the independence of its elections administrator last year. Ludwig’s predecessor, Heider Garcia, quit the job, blaming political pressure from O’Hare.
O’Hare denied forcing Garcia to quit. Garcia is now the Dallas County elections administrator.
Got a tip? Email Miranda Suarez at msuarez@kera.org. You can follow Miranda on Twitter @MirandaRSuarez.
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