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11/03/2006: "SJC Sued Over "Ballot Tracker" System"

(File photo, Elections Supervisor Dan Gillespie responds to comments from Greg Hertel )

A lawsuit has been filed against the SJC Auditor, charging that the system used to keep track of, and count mail in ballots, is in violation of state law.

Green Party members Tim While and Allan Rosato filed the suit, explaining "We filed this suit as a measure of last resort. During the County's first six all-mail elections over the past 12 months, we've attempted to get action by presentations to the Board of County Commissioners, the new County Council, the Elections Department, the County Elections Canvassing Board, and the County Prosecuting Attorney". .

The issue generating the lawsuit results from the method used to process ballots. A bar code is used by the current system to track ballots, and because the bar code is a "distinguishing mark" on the ballot, the suit alleges it is contrary to state law, which prohibits the placing of any markings on a ballot that can be used to "distinguish an individual voter's ballot card from other ballot cards",



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One exception to the rule is the requirement that while ballot cards used at polling places on election day (as opposed to mail-in ballots) are required to be sequentially numbered, the number must be removed prior to giving the ballot card to a voter. The number is used as a part of the auditing process for the certification of an election. The law has not been updated to reflect the new computer technology that uses bar codes to automatically scan and track ballots.

The lawsuit contents that the new system could potential be accessed to determine how someone voted. County officials say not so. County Auditor Si Stephens has been most emphatic that the system is secure. One of the candidates running for Auditor has joined the argument, siding with the Green Party position on the matter ( Related Story).

SJC Prosecutor Randy Gaylord's office will be responsible for responding to the suit, and he told the Island Guardian that while the suit is asking for injunctive relief from the current use of bar codes, the suit was filed too late to have an effect on the current election. Both Gaylord and Stephens pointed out that the Sectary of the State has allowed the system to be used in thirty counties in the State, but even so, Gaylord said that he will ask the Secretary to look at the issues outlined in the suit, and to examine the legal issues.

When asked his legal opinion, Gaylord responded courts will typically look at the whole legal body of law pertaining to an issue, and not just isolated sentences. With respect to the potential outcome of the case, Gaylord said that issues highlighted by lawsuits can result in legislative changes to cure inconsistencies or problems found by a lawsuit, and that it was "possible the lawsuit could change the system or the law".

A press release issued by White and Rosato pointed out that the "Final word from County official is that the Courts must decide". The lawsuit would appear to validate that claim from the County.