Although the battle over the use of barcodes on San Juan County election ballots is now in its seventh year, and much has changed over that time, there is at least one thing that the parties on either side of this protracted legal debate can agree upon.
And that is, that the ballot-tracking software used to monitor the flow of ballots in and out of the county Elections office, called Mail-in Ballot Tracker, has never been certified by the state agency that oversees elections in Washington, the Secretary of State. San Juan County Superior Court Judge Don Eaton notified the litigants in a March 27 “letter decision” — sort of a heads up of an official ruling to come — that MiBT should be certified because, as defined by state law, it functions as part of the “voting system” used by the county to conduct elections.
San Juan Island’s Tim White, who, along with Allan Rosato of Orcas and the local Green Party, first filed the lawsuit against the county over its use of barcodes, sees the letter decision from Eaton and the judge’s view on what constitutes a “voting system” as a victory for their side, even if there is more litigation and appeals ahead.
“We’re celebrating,” White said. “This is what we’ve been working for. What we hope is that the counties that are still using it will voluntarily quit using it until it’s certified.”
White and company claimed when the lawsuit was first filed that the county had undermined the “secrecy” of how individuals vote because the barcodes could be used to “link” voters with their ballots. He believes that “linkage” can be demonstrated if MiBT undergoes the certification process.
In the meantime, he said that the lawsuit can proceed since Eaton determine that without MiBT being certified by the state, local voters are being treated differently than other voters in the state. San Juan is one of four of the state’s 39 counties that use MiBT, others being Columbia, Douglas and Island counties.
“If, as plaintiffs argue, MiBT is part of a voting system as defined by (state law), it is clear to this court that similarly situated persons in Washington state are treated differently with respect to their fundamental right to vote because some vote by a fully certified system and some vote by a system that is only partly certified,” Eaton said in the March 27 letter ruling.
Meanwhile, local and state officials, including the Secretary of State’s office, are calling Eaton’s determination a “split decision”.
“Judge Donald Eaton’s communication last week to lawyers in the case was not a ‘court order’ or a ‘ruling’ that has any binding effect, but is an informative letter to the lawyers,” the Secretary of State’s office said in a press release. “There are no injunctions to San Juan County’s use of this ballot-tracking system, and further litigation may or may not continue.”
In addition, San Juan County Prosecuting Attorney Randy Gaylord noted that Eaton’s decision only allows the lawsuit to proceed to the next stage, that it does not address the issue of “linkage”, and that both local and state officials dispute that MiBT should be considered a “voting system”. That determination may likely be appealed, he said.
“The ballot-tracker system is used as a tool for auditing elections, it’s not linked to the software that’s used to count the ballots,” he said. “It has nothing to do with the vote tabulating system. There’s been no evidence presented that barcodes are linked to the name of a voter.”
Gaylord said the ballot-tracking software works in ways similar to how UPS, FedEx or the U.S. Postal Service track the location of packages, and that it will “definitely” be used in the April 23 election.
“The ballots are tracked without ever looking at how the ballot is voted,” he said.