Secrecy shrouds details of voter outreach program
AUSTIN — On a television ad airing ahead of Election Day, Texas Secretary of State Carlos Cascos declares: “It’s voting season in Texas.”
The 30-second spot tailored by international public relations giant Burson-Marsteller is supposed to serve as a quick explainer to educate Texans on new voter ID requirements ordered by a federal court.
Yet, Cascos and state officials say they cannot reveal where the secretary of state’s office is spending taxpayer money to broadcast those ads and the names of an estimated 1,800 community groups partnering with Texas to circulate voter ID information at the local level.
Texas is using the lion’s share of a $2.5 million voter education effort on paid media and outreach to community organizations but has refused over the course of months to provide details of how and where it’s spending public money for the public education campaign.
The secrecy has irked several lawmakers representing areas of the state with heavy minority populations affected by the
voter ID law, as confusion over photo identification requirements has been reported around Texas during early voting.
State Sen. Rodney Ellis, D-Houston, called it “disturbing” and “unacceptable.”
“The lack of transparency from the Secretary of State is disturbing,” Ellis said in an email, noting that a federal judge has already scolded Texas for distributing misleading information during its current outreach effort. “Now, they’re shrouding the voter education campaign in secrecy and using millions of taxpayer dollars to do it. That is simply unacceptable.”
Cascos, who was appointed secretary of state by Gov. Greg Abbott, said Texas is trying to educate voters to the best of its ability, but he pointed to ongoing litigation when asked about the ad buys and community groups.
‘Pending litigation’
Texas’ main argument to withhold the information boils down to this: Burson-Marsteller drew up the plans and provided them to the state under contract as “proprietary” information. A federal judge in August sealed records related to ad buy markets and community groups targeted to receive “digital tool kits” with updated voter ID information. The secretary of state’s office has since used the court seal as one of its reasons to deny media inquiries for the information.
Along with documents related to the current outreach program, the secretary of state’s office has refused to disclose information related to ad buys and market placement for a voter education campaign in 2014, the first statewide election cycle in which the voter ID law was used. The agency also will not release the name of a state lawmaker it wrote a letter addressing details of the 2014 education effort.
The 2014 documents are not under federal seal, but the secretary of state’s office has asked Attorney General Ken Paxton to allow the agency to withhold their release, arguing they are part of “pending litigation.” The secretary of state’s office has made the same argument with Paxton’s office to withhold documents about ad buys related to the current education campaign.
Alicia Pierce, a spokeswoman for the secretary of state’s office, said the agency’s is seeking to “protect the propriety interests of the state related to information purchased through a vendor.”
“The public information act protects not only information sealed by court order but also information that is a subject of pending litigation,” she said.
Paul Watler, a Dallasbased attorney who represents newspapers and broadcasters in public information and First Amendment cases, said the pending litigation exception in the Texas open records law is very effective for state agencies because it so broad.
“There are no real limits to that test,” he said. “If it relates to pending litigation in any way the information can be withheld.”
Ads running statewide
The secretary of state’s office has said its ads are running statewide and that 30-second spots started airing on television and radio in mid-October but hasn’t provided a breakdown for market-by-market spending. It also has not identified a single community group that received a digital tool kit.
Without more details, experts say, the public will be left in the dark about levels of ad spending in markets with large minority populations and which groups Texas is distributing education materials to.
A softened version of what was once considered the strictest voter ID law in the country is being implemented in Texas for the current election. In August, a federal judge in Corpus Christi ordered that people lacking one of seven state-mandated forms of photo identification will be allowed to cast a ballot by showing an alternate ID and signing an affidavit.
Texas was also ordered to conduct a robust education campaign about the changes as a court fight over the law continues to play out.
The only detailed information released so far has been in a court document in which the state says it planned to spend $1.3 million on paid media, $256,000 for ad production and strategy and around $179,000 on “community engagement” with some 1,800 unnamed organizations.
Texas argued in court filings that documents related to the ad buys and community groups include “proprietary” and “confidential” information provided by BursonMarsteller, which designed the state’s voter education campaign. State lawyers also cited a 1978 case involving President Richard Nixon, in which the U.S. Supreme Court held that media outlets could not have access to tapes from a Watergate obstruction trial. Asked about the issue, Cascos earlier this week deferred to the court’s sealing of the records.
“You’d have to take up that with the federal court,” he said.
When pressed on the state’s argument about the need to guard information provided by BursonMarsteller over the public’s access, Cascos said: “I was not involved.”
‘High burden’
However, that explanation falls short for some lawmakers.
State Rep. Trey Martinez Fischer, a San Antonio Democrat, said the public has a right to know how its dollars to educate voters are being used.
“While the state may believe there’s an interest in wanting to protect this information, it’s a very high burden and I don’t think they’ve met it,” said Martinez Fischer, who also chairs one of the civil rights groups suing Texas over its voter ID law.
According to a court document, Texas planned to send “digital tool kits” to 1,800 community groups with updated voter ID information as part of a strategy that “capitalizes on the connections community groups and organizations have to share information.”
Elaine Wiant, president of the League of Women Voters of Texas, said her organization was never contacted by the secretary of state’s office or BursonMarsteller.
“We’ve had many communications with the secretary of state’s office on this,” she said, “and it is a bit surprising they’re engaging with community organizations and not including us.”