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.

Allan Rosato and Timothy White, plaintiffs in a suit against the auditor of San Juan Island County, WA. Photo taken by author at 5/26/07 meeting of Washington Citizens for Fair Elections
 Recent developments are leading to the loss of our right to secret ballots.  It began in September 2005 with the use of a new ballot-tracking technology in a San Juan County primary race.   Judging from recent national legislation, H.R. 1646, which would require all states to implement ballot tracking procedures, the practice may soon be instituted nationwide.

San Juan County's system, sold to the county by VoteHere, uses unique barcodes that are attached to envelopes and ballots. These barcodes are linked with the voter IDs.  After voting, voters can enter their name into a web form to check on the status of their ballot -- received, counted, etc.

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  But according to a statement made by Secretary of State Sam Reed, these laws are "less specific" than the repealed WAC section.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.    

  1. Article VI, Section 6 of Washington's Constitution
    "All elections shall be by ballot. The legislature shall provide for such method of voting as will secure to every elector absolute secrecy in preparing and depositing his ballot."
  2. WAC 434.230-180 (law in process of being repealed by our Secretary of State).
    " All paper ballots and ballot cards shall be sequentially numbered in such a way to permit removal of such numbers without leaving any identifying marks on the ballot card. The sequential number shall be used to inventory ballots issued at a precinct on election day, and may be used to facilitate the auditing process for certification of an election. At no time may the numbers be used to trace a specific ballot back to an individual voter. There shall be no marks on the ballot cards which would distinguish an individual voter's ballot card from other ballot cards."
  3. RCW 29A.36.111
    "No paper ballot or ballot card may be marked in any way that would permit the identification of the person who voted that ballot."
  4. RCW 29A.36.161
    "All paper ballots and ballot cards used at a polling place must be sequentially numbered in such a way to permit removal of such numbers without leaving any identifying marks on the ballot."
  5. RCW 29A.36.116
    Bar codes on provisional and absentee ballots must not identify the voter.
  6. Documents related to the San Juan County Suit
    TIMOTHY WHITE, ALLEN ROSATO, individuals, and GREEN PARTY OF SAN JUAN COUNTY, an unincorporated association, Plaintiffs vs. MILENE HENLEY, in her capacity as SAN JUAN COUNTY AUDITOR, and SAN JUAN COUNTY, a municipal corporation, Defendants.
  7. Green Party Press Release on the suit.
  8. San Juan County's Auditor's Statement on the VoteHere website
  9. Tim White's a March 28, 2007 editorial in Island's Sounder

[Update: I added an image of a San Juan County ballot, plus brief description. -- zappini]

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M3047 has a related story on the technical side today: Pigeons and the "Taste of Entropy".  I am understanding from him that it is possible to place unique barcodes on ballots that are not traceable to the voter without the voter's consent -- but can allow the voter to check on the status of his or her ballot.  This would require the use of a "key" that is supplied by the voter in order to "unlock" the encrypted link between the barcode identification on the ballot and his or her identity.  These keys use cryptographic entropy -- a technology M3047 explains in the story sited above.

by noemie maxwell on Wed Apr 25, 2007 at 11:01:34 AM PST

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Thank you Noemie!

I sat on this information for too long. You have mad ninja skills pulling many sources of information together and synthesizing it all into a narrative that's easy to understand.

by zappini on Thu Apr 26, 2007 at 12:01:23 AM PST

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Tim White and Allan Rosato held a fund raiser April 1st in Eastsound on Orcas Island. Despite the short notice, I felt it was my duty to attend. To endure the hardship of Orcas Island.

I'm glad I did.

Tim White showed a DVD created locally explaining the mail ballot tracking issue. It was great fun.

Then they had a Q&A session. Randy Gaylord, who is San Juan County's prosecutor and defending the county in this lawsuit, was on hand to answer questions.

Flat out, I was amazed by the level of knowledge the activists had. The questions were really top notch. The locals definitely know how their elections work, including the arcane stuff like signature verification and voter intent.

I was also impressed by the civility. Randy Gaylord was a good sport, fielding so many challenging questions. The resulting discussion was great.

About 30 people attended. I think there's approximately 10,000 voters in San Juan County. So that's an amazing turnout. I met a variety of interesting people. For instance, an organic farmer who works on the Departmen