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Home » Archives » October 2006 » Hertel Questions legality Of SJC Voting System

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10/28/2006: "Hertel Questions legality Of SJC Voting System"

Greg Hertel would like to be Si Stephens replacement as Auditor, and is running against Milene Henley for the position. One of the jobs of the Auditor is running the Elections Department of the Auditor's office, and Hertel has found fault with Si's decision to use a State approved Ballot Tracker system that San Juan County, and thirty other counties in Washington State use.

Just to make things a bit more complicated, Dan Gillespie is Si's man in charge of the Elections office, and Gillespie is currently in his own election race (with Joan White) to be the next County Clerk; but like Si, Gillespie believes Hertel's comments are misguided, and without legal foundation.

Hertel's opponent in the race, Milene Henley, told the Island Guardian that she was aware that questions have been raised by some citizens, and said she had asked County Prosecuting Attorney Randy Gaylord his opinion, and was told that the Secretary of State had found the system to be a legal system. Henley went on to say that if elected she would "request a formal opinion from the State Attorney General".

Si Stephens, who is retiring after having served as the SJC Auditor for twenty-four years, told the Island Guardian that "Ballot Tracker is like the UPS system of tracking packages or mail: UPS can tell you where a package is, but not what is in the package" , Stephens adds that the point that needs to be made is that the system that "San Juan County -and thirty other counties- use, was not only approved by both the Federal government, and the State of Washington, it was paid for by the Federal government" , and the system has been certified by the Secretary of State as meeting all state and federal laws and regulations that govern elections.

(continued from front page)
In an email to the Island Guardian, Hertel noted that there is a bar code (just like the one on a can of soup) on the ballots that is unique to each ballot. Hertel stated "there is a problem with this method. Consider the following excerpts from Washington State law:

WAC Chapter 434-250 Voting by mail
434-230-180 Paper ballots and ballot cards Numbering.

... There shall be no marks on the ballot cards which would distinguish an individual voter's ballot card from other ballot cards.

RCW 29A.36.111 Uniformity, arrangement, contents required.

No paper ballot or ballot card may be marked in any way that would permit the identification of the person who voted that ballot. [2004 c 271 § 128.]

These are just two of several codes and laws addressing and prohibiting unique marks on ballots"

Hertel acknowledges that "the Auditors office spent much time evaluating this system but mostly from a standpoint of use, not legality. I honor their effort but these ballots will be challenged and we don't want to be part of that lawsuit."

Hertel stated that "If the RCW's are changed by the legislature then we could proceed with Ballot Tracker but that is a lengthy process." When asked about the quotes from the WAC and RCW's that Hertel has relied on to support his arguments, Si said that Hertel is only quoting those parts of the law that appear to support his contention, but if he were to research the whole body of current election regulations, he would find specific sections that address Hertel's concerns, and those sections allow systems such as the Ballot Tracking system.

Elections Supervisor Dan Gillespie said Hertel fails to understand that WAC's are not law, they are interpretations of law, and the specific WAC quoted by Hertel is not on point; since that particular portion of the WAC is intended to control voting when the voter goes to a polling place. Gillespie explained that in simple terms the WAC simply points out that if a voter is given their ballot at a polling place, the poll worker must first write down the number attached to the ballot next to the list of voters, then remove the number prior to giving the voter their ballot. That was the way it was done when we went to a polling place to fill out our ballot; now we mail them in, and there is no one standing at the post office to make sure we received the ballot, and that it was mailed in.

Gillespie says that at some point he expects the WAC will need to be clarified to make the distinction clear between the old way of voting, and the new way, and that -as Hertel points out- it is a slow process, but in the meantime all thirty counties in Washington that use the Ballot tracker system are in full compliance with the law.

Hertel is not the first to ask questions or express opinions on this. Tim White and Tom Munsey of the SJC Green Party have both appeared before the County Council asking the Council to conduct an investigation into the new system, and Hertel's comments echo their statements to the Council. The Council at one point did invite Stephens to address the questions, and Si told the Council that the operation of the Voter Tracker system -the system that counts the ballots- made it simply inconceivable that anyone could ever determine how someone had voted.

Both Stephens and Gillespie are concerned that voters understand the purpose of the system is to determine if all the votes have been counted, not how some specific individual voted With regard to the importance of election officials knowing if and who voted, but not how they voted, SJ County and Hertel appear to be at least on that same page.

Tom Bauschke
John Evans
Mary Kalbert
Ron Keeshan
Gordy Petersen
Janice Peterson
Bruce Sallan
Terra Tamai
Amy Wynn
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