01/16/2008: "Suit Over Ballot Bar Codes Will Go To Trial"

Green Party members Tim While and Allan Rosato filed a law suit last year against San Juan County in an attempt to force the County to stop printing unique bar codes on the county’s election ballots.

The suit claimed that the bar codes could be used to trace how people voted, thus violating fundamental constitutional rights, as well as state and Federal laws, that guarantee the sanctity of a secret ballot.

At the time of filing they explained they had made repeated attempts to resolve the problem “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". Those attempts failed, so ”as a measure of last resort,” they filed the suit.

These things take time, and by November of this year they found themselves fighting motions brought by Prosecuting Attorney Randy Gaylord to have the case dismissed, “because the county legislative body has no role” in how or what type of ballot audit system is used. It is the auditor that has that power, he told the court.

Gaylord also stated the “procedural due process” should be dismissed. White and Rosato’s attorney, Jerome R. Cronk had argued that the system being used by the county “deprive Plaintiffs of their due process right to the sanctity of the secret ballot under the 14th Amendment to the U.S. Constitution.”

Raising a constitutional right is no small matter, and rulings -for or against- are no small action by a Court, and San Juan County Superior Court Judge Alan R. Hancock denied both of the Gaylord motions for dismissal. Had he dismissed the case against the County Council, then all of the weight of the lawsuit could have fallen on SJC Auditor Milene Henley.

Last July, Auditor Henley told The Island Guardian that “San Juan County’s use of the system has been successful, in that it has done what it was supposed to do, and we have never had any instance of an individual voter’s right to privacy being violated.”

With the ruling by Judge Hancock, the lawsuit will now proceed to a trial, most likely sometime early in 2008. If Cronk is successful in winning the case for White and Rosato, the County would not only have to change the way we vote, but would also send a message to the Secretary of State.

Also at stake is money, for under federal election law, if the County loses the case, the County may have to pay for White and Rosato’s legal fees.

While no one can predict what the outcome of the case will be, one thing that can be predicted is that the Judge will not be Hancock, since by then a new judge for San Juan County, and from San Juan County, is expected to be appointed by the Governor .

The two candidates for the position are John Linde and Randy Gaylord; if the new judge is Gaylord, safe to say he will not be hearing this particular case.

Ballot tracking systems were developed, with the support and encouragement of the Secretary of State’s office, in response to problems with lost and uncounted ballots—primarily in King County—during the 2004 gubernatorial election. The systems not only allow individual voters to verify that their votes have been counted, but also ensure that no ballots are lost or otherwise unaccounted for. San Juan County was one of three pilot counties to adopt such systems.