How Your Vote Can Be Tracked to You: San Juan County Ballot Tracking [Updated]
[Update: King County has decided to not use individual identifiers on ballots. See Zappini's King County Protects Our Secret Ballot]
Thanks to M3047 and Zappini for help with this article and to Zappini for the heads up on this case.
As the following image shows, there are three bar codes on the San Juan County ballots, one each for the election and precinct. Plus a new one, like a serial number, tied to the voter id when the ballot is mailed out.
It is illegal in Washington state to place unique marks on ballots. WAC 434.230-180 states that "there shall be no marks on the ballot cards which would distinguish an individual voter's ballot card from other ballot cards". But almost as soon as a citizen suit was brought against San Juan County for its violation of this law, Washington's Secretary of State (SOS) began the process to repeal this WAC. Sections of the RCW which prohibit unique marks on ballots, and Article VI, Section 6 of Washington's Constitution, which provides for "every elector absolute secrecy in preparing and depositing his ballot," remain in place. But according to a statement made by Secretary of State Sam Reed, these laws are "less specific" than the repealed WAC section.
Timothy White, Allan Rosato, and the Green Party of San Juan County are the plaintiffs in the Superior Court suit brought against the county auditor in January of this year. Recently, White wrote in a 3/18/07 Guest Editorial in the Orcas Island Sounder that the SOS revised the WAC to remove the language banning individual identifying marks on ballots only 10 days after the suit was filed.
I asked Joanie Deutsch, the Acting Communications Director for the Washington Secretary of State's office (SOS), why this WAC section was being repealed. She reassured me in a 4/19/07 email that "WAC 434-230-180 was repealed because it duplicates requirements contained within other existing statutes and WACs. A voter's right to privacy is not compromised by repealing WAC 434-230-180."
That is incorrect. I attended a 4/21/07 presentation by Secretary of State Sam Reed at the NW Progressive Conference and asked him if the use of unique barcodes on ballots to track them could ever be 100% secure. Secretary Reed answered that it would be technologically very difficult for this tracking to be done, requiring the use of decryption techniques. In other words, given enough effort and sophistication -- or simply a dishonest "insider" with enough motivation -- ballots can be tracked back to the voters. The Amended Summons of the citizen suit states that the technology "would permit linking, through a "decryption process, the identification of each voter to the ballot he or she submitted."
I also asked Secretary Reed why his office was repealing WAC 434.230-180. Statutory law, I pointed out (see references below) says something very similar and will still be in place. Why repeal the WAC? Reed answered that the WAC is more specific than the RCW. He also noted that 28 other Washington counties will be using vote tracking systems in upcoming elections.
This confluence -- the repeal of state legislation that protects our rights to secret ballots, the use of unique bar-coded ballots that can, with enough effort, be traced back to voters, and national legislation that proposes to institute similar systems across the country -- is a clear warning sign that we are in danger of losing the right to a secret vote. Voters in San Juan County have already lost it.
On the other side of the issue, we have the suit by White, Rosario, and the San Juan County Green Party. And Senator Eric Oemig offered an amendment this year to SB 5738 which would have disallowed the use of unique marks on ballots. This bill, however, did not pass.
[Update: I added an image of a San Juan County ballot, plus brief description. -- zappini]