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Fact Check: It’s Legal And Safe To Fill Out Paper Ballots With Pencils

Wearing protective gloves, poll worker Doug Downing cleans a pencil during early voting Monday at the Zeidler Municipal Building in Milwaukee.
Mark Hoffman / Milwaukee Journal Sentinel/USA TODAY NETWORK
Wearing protective gloves, poll worker Doug Downing cleans a pencil during early voting Monday at the Zeidler Municipal Building in Milwaukee.

Refusing to concede to Democratic incumbent Henry Cuellar last week, Texas Congressional District 28 Candidate Sandra Whitten has raised concerns about Webb County’s use of pencils in voting booths.

In a Facebook Live conducted on Nov. 7, Whitten, a Republican, said she had heard “rumors” about voter fraud from throughout the district, but she zeroed in on Webb County.

“Recently it has come to our attention that pencils have been used in Webb County for the elections for paper ballots. We were told this is customary. Being a Webb County resident for 11 years, I can attest that pencils are in fact ‘customary’ here in Webb County,” she said in the video, making air quotes. “But it is not legal. It allows for the opportunity of voter fraud.”

Whitten told TPR that Webb County said the pencils were approved by the Texas Secretary of State. She said she still found the practice “suspicious.”

“They are claiming these are indelible pencils, and you know, if people try to erase them, it would create a smudge. They are bulky kind of different pencils,” Whitten said. “Even if that’s the case, why are we still using that if it allows for a moment of doubt on people’s behalf? And people brought that up before we started mentioning it. That’s why we brought it up. It’s just suspicious. It’s funny, and if there’s a way to give some sort of peace of mind, why are we not doing that? As a county, we should be expecting more from our process.”

Webb County Elections Administrator Jose Salvador Tellez declined to comment.

The Texas Election Code does not require “a voter to specifically fill out their paper ballot using either a pen or pencil (see Texas Election Code, Sec. 62.015),” Texas Secretary of State Spokesman Stephen Chang said in a statement.

“While the preferred choice of marking material may vary by county, so long as the voter fills out their ballot with a marking material that allows for their intent to be ascertained, their vote will be counted,” he added.

The county has historically used pencils because its scanning devices read pencil markings better, according to Armando Lopez, a Laredo attorney who has served as the Webb County central counting station judge since 1992. This year, he decided to instead serve as a poll watcher for his cousin Betty Flores, who ran for Laredo’s City Council.

“In my experience as a voter and then as the judge, the pencils are placed out at the polling sites, they don't have erasers on them and the reason that they use those pencils is because the Scantron machines that we have require the bubbling in of something in dark pencil, usually pencil,” he said. “And people vote in pencil and that's how it's normally occurred, so I've never seen the county produce pens. I have seen ballots voted by voters with pen, and in certain circumstances, the machine will not pick that up. And we've had to resolve those manually.”

Lopez said there are also safeguards against tampering. Once voters fill out their ballot, they place it in a sealed box and candidates can ask to have the ballot boxes impounded. That means the ballots would be escorted and monitored in a designated place.

“And so many times people will make these allegations, but they will have not exercised their legal rights to ask for impoundment of ballots, so the ballots are put in a box, they're sealed, and then they're put into a room,” he said.

Lopez also said that candidates have the opportunity to observe and raise concerns when election judges review ballots that scanners have been unable to process.

The nonpartisan election security organization Verified Voting recommends paper ballots as the safest form of voting, and co-director Cris Landa said they also “try to promote the use of pen because it’s not erasable, and so it's a definitive marking on the ballot.”

But she said scanners also pick up pencil markings, and each model and company’s settings may vary.

“I think large-scale fraud as it relates to erasing ballot markings seems very hard to go undetectable,” she said. “And I don’t know of any instances where that has happened on a large scale.”

According to Verified Voting’s map of U.S. polling place equipment, Webb County uses the DS200 hand-fed optical scanner from the company Election Systems & Software.

In a response to a public information request, Webb County said it uses an M650 Model tabulating machine from the company Election Systems & Software and provides voters with "Prism color Ebony Pencils."

A spokeswoman for the company said in an email that they “recommend black pens, but black felt tip pens and pencils are also fine.”

Landa said she didn’t have information on how widespread the use of pencils is in U.S. elections, but she said paper ballots became more common this election cycle amid election security updates and increased mail-in voting.

“There’s broad consensus from computer scientists and the election security community around paper ballots being best practice, and specifically hand-marked paper ballots,” she said. “The reason for that is that 99% of votes are counted on computers and computers are vulnerable either to accidental errors, either where you accidentally misprogram something or intentional interference. And a hand-marked paper ballot gives you the opportunity to audit the election and look at that paper with human eyes, without software, to check the results.”

Whitten said she has notarized affidavits of voter concerns and said she “would love a recount" and was considering her legal options. She declined to share copies of the affidavits before talking to her lawyer.

According to the Texas Secretary of State, the deadline to request a recount from a county or precinct office for the General Election comes on the second day after the canvass is conducted. Canvasses, or the official counting of votes by local jurisdictions, must take place no later than Nov. 17, according to the Texas Secretary of State’s guidelines.

Congressman Henry Cuellar in a statement refuted the allegations and emphasized that Whitten “lost her election by 45,318 votes.”

“In the last couple of days, I have traveled to almost every city and county in my district. I have talked to many Democrats and Republicans on my ‘Thank You,’ tour and no one that I have spoken to holds the opinion of my opponent — that includes Democratic and Republican office holders,” the statement said. “Her baseless and false allegations is an attack on our democracy as well as on Republican and Democratic election officers and poll watchers throughout the district.”

Cuellar, who has represented the congressional district since 2005, won Webb County with about 70.2% of votes and by 58.3% across the district, according to the Texas Secretary of State’s unofficial results.

Whitten’s claims come against the backdrop of Republicans and President Donald Trump claiming potential voter fraud, though states have not reported any irregularities that could have changed the outcome of the presidential election, according to the New York Times.

It’s also not the first time this election cycle that Webb County Republicans raised concerns about ballots. During the early voting period, several people shared Facebook posts warning that ballots with election officials’ initials would be disqualified. Webb County Elections Administrator Jose Salvador Tellez told theLaredo Morning Times that the State of Texas requires the initials for the ballots to be validated.

Texas Congressional District 28 candidates Sandra Whitten and incumbent Henry Cuellar. Cuellar, a Laredo Democrat, won re-election, but Whitten, a Republican, has not yet conceded.
/ Courtesy of Cuellar and Whitten
Courtesy of Cuellar and Whitten
Texas Congressional District 28 candidates Sandra Whitten and incumbent Henry Cuellar. Cuellar, a Laredo Democrat, won re-election, but Whitten, a Republican, has not yet conceded.

Copyright 2020 Texas Public Radio

María Méndez reports for Texas Public Radio from the border city of Laredo where she covers business issues from an area that is now the nation’s top trade hub. She knows Texas well. Méndez has reported on the state’s diverse communities and tumultuous politics through internships at the Austin American-Statesman, The Texas Tribune and The Dallas Morning News. She also participated in NPR’s Next Generation Radio program while studying at the University of Texas at Austin. At UT, she wrote for The Daily Texan and helped launch diversity initiatives, including two collaborative series on undocumented and first-generation college students. One of her stories for these series won an award from the National Association of Hispanic Journalists. She spent the last year reporting for The Dallas Morning News as a summer breaking news intern and then as a fellow in the paper’s capital bureau in Austin. She is a native of Guanajuato in Central Mexico.