amended complaint by tWTGT13A

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									                SUPERIOR COURT OF THE STATE OF WASHINGTON
                           FOR SAN JUAN COUNTY
TIMOTHY WHITE, ALLEN ROSATO,                           No. 06-2-05166-2,
individuals, and GREEN PARTY OF SAN
JUAN COUNTY, an unincorporated                         SUMMONS ON AMENDED ,
association,                                           COMPLAINT

                                       Plaintiffs      (20 DAY)


                        vs.

MILENE HENLEY, in her capacity as SAN
JUAN COUNTY AUDITOR, and SAN JUAN
COUNTY, a municipal corporation,
Defendants.


______________________________________

Plaintiffs state the following cause of action against the Defendants:

A. Parties.
          The parties to this action are:

1. Individual Plaintiffs Identity and Status.
          Plaintiffs, Timothy White and Allan Rosato, are individuals (called "the individual
Plaintiffs" herein), residents of San Juan County, Washington, registered voters in that county
and members of the Green Party of San Juan County.


2. Green Party Plaintiffs Identity and Status.
          Plaintiff Green Party of San Juan County ("the Green Party" herein) is an
unincorporated association, a "minor political party" and political organization within the
meaning of RCW 29A.04.097, and is registered as such with the Washington Public Disclosure
Commission. Said party has offices in San Juan County and its members are residents and
voters in San Juan County.

3. Defendants' Identity and Status.

          3.1 Individual Defendant.
          Defendant Milene Henley is the current Auditor of San Juan County ("the Auditor"
herein) and as such is the duly elected and serving election officer of San Juan County who is
legally
responsible for the conduct and supervision of elections and enforcement of election laws in
that county as provided by RCW 29A.04.025 and 29A.04.055 and other statutes and
regulations. While the Auditor's predecessor in office adopted the Ballot Tracker system
(described below) Defendant Henley continues its use and remains responsible for the
conduct of future elections in San Juan County.

       3.2 County Defendant.
       Defendant San Juan County, ("the County," herein) is a Washington municipal
corporation, duly organized and constituted pursuant to Article XI, section 4 of the Constitution
of the state of Washington and acted through its officers, employees and agents, including the
Supervisor of Elections, Daniel J. Gillespie, and prior to January 1, 2007, the Auditor's
predecessor, Si Stephens.

B. Ballot Tracker System
       1. Adoption of Svstem
       In the Primary of September 20, 2005, the County commenced utilizing the "Mail-in
Ballot Tracker" election auditing system for elections in that county.


       2. Description of System
       The "Mail-in Ballot Tracker" system (sometimes called "Ballot Tracker" or "the system"
herein) is a computerized election ballot tracking and election auditing system that, among
other things, assigns to each voter's name a unique bar code and serial number that is printed
on each ballot distributed to voters in elections conducted by Defendants.

       3. Extraordinary Utilization
       In the General Election of November 8, 2005, the County became the first county in the
United States to fully adopt and implement "Mail-in Ballot Tracker."

       4. Conduct of Elections
       The County conducted vote-by-mail balloting, using the Ballot Tracker system, in each
of the following six Primaries or Elections:
       1. Primary of September 20, 2005;
       2. General Election of November 8, 2005
       3. Special Election of February 7, 2006;
       4. Special Election of May 16, 2006,
       5. Primary of September 19, 2006, and      .

       6. General Election of November 7, 2006.


 5. Non-Uniform Ballots

       5.1 Printing & Distribution
       For each Primary or General Election listed above, the County caused to be printed
upon the ballots sent to each Plaintiff, and on ballots sent to members of the Green Party and
to each San Juan County registered voter a bar code and corresponding serial number that
was unique - i.e. each ballot had a different bar coded number - that distinguished the ballot of
each individual Plaintiff, of each member of the Green Party and of each San Juan County
registered voter, from other ballots.


       5.2 Identification of Individual Voters' Ballots
       Each ballot created by the County and distributed to voters in the above listed elections
was created, maintained and marked in a manner:

       a. That identifies each individual voter with information marked on the
       voter's ballot;
       b. That is non-uniform within each precinct;
       c. That would permit linking, through a "decryption process," the identification of each
       voter to the ballot he or she submitted;
       d. That does not permit the removal of identifying numbers from the ballot.


       6. Harm Caused by the Svstem
       The Ballot Tracker system, as utilized and maintained by Defendants, has caused, will
continue to cause and threatens to cause the following harm to Plaintiffs and other voters of
San Juan County:

6.1 Secrecy of Ballot Compromised
       It compromises and degrades the secrecy of the ballot.

6.2 Loss of Public Confidence
       It has engendered justifiable widespread suspicion, apprehension, distrust and erosion
of public confidence regarding the integrity of elections in San Juan County.

       6.3 Reduction of Safeguards
       It has reduced secret ballot safeguards and increased the possibilities for influencing,
inducing or coercing voters to vote a certain way or intimidating voters from voting their
conscience.

       7. Defendants' Refusal to Provide a Lawful Ballot
       On or about September 7, 2006, Plaintiff Timothy White requested the Elections
Department of the Auditor of San Juan County to provide him with a legal replacement for the
ballot prepared and sent to him by that department    - which ballot contained a bar code that
was different from ballots provided to others in his precinct - but Defendants (including the
current Auditor's predecessor) failed and refused to do so.

       8. Continuation of Ballot Tracker
       The Auditor intends to continue the use of the Ballot Tracker system in future elections
in the manner conducted previously as alleged above.

C. Violations & Deprivations of Constitutional, Statutory & Other Legal
Rights
       Defendants' practices in the use and maintenance of the Ballot Tracker system in the
past and in the future, as implemented and alleged above, violates
the civil rights of the Plaintiffs under the United States constitution, the constitution of the state
of Washington, and federal and state statutes and regulations in the following manner:

       1. Rights Under the U.S. Constitution
       Use of the Ballot Tracker system constitutes an abridgment of Plaintiffs' rights,
privileges and immunities and has deprived them of basic liberties under the U.S. Constitution,
in that, among other things,

              1.1 Equal Protection
       The system discriminates between voters of San Juan County in that it affords them
less confidence in the secrecy of their ballots than voting systems do for voters in other
counties, disproportionately subjecting them to the potential harm of identifying how they
voted, contrary to the equal protection clause contained in the 14th Amendment to the U.S.
Constitution.

                1.2 Substantive Due Process
       The system deprives Plaintiffs of their due process rights to the sanctity of the secret
ballot under the 14th Amendment to the U.S. Constitution, which is a fundamental right in our
Republic.

                1.3 Procedural Due Process
       Adoption of the Ballot Tracker system without affording the Plaintiffs or the public the
opportunity to attend or participate in a public hearing and submit comments and without formal
consideration or resolution by the County Legislative Authority1 constitutes a violation of
Plaintiffs' procedural due process rights.

       2. Rights Under Federal Statutes
       Defendants' adoption of the Ballot Tracker system has subjected Plaintiffs to a dilution of
their voting rights and a deprivation of rights, privileges and immunities secured by the
Constitution and laws, thus entitling them to redress under 42 U.S.C. §1983.

       3. Rights Under State Constitution
       The Ballot Tracker system, as utilized and maintained by Defendants, is in direct
violation of Washington State Constitution, Article VI, Section 6, which provides that:
                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.
4. Rights Under State Law
      The Ballot Tracker system, as used and maintained by Defendants, is contrary to law and
a violation of Plaintiffs' rights under the following statutes and regulations of the state of
Washington:

       4.1 RCW 29A.O8.161
       This statute, entitled: "No link between voter and ballot choice," provides as follows:

No record may be created or maintained by a state or local governmental agency or a political
organization that identifies a voter with the information marked on the voter's ballot, including
1 The   Board of County Commissioners through 2005, and subsequently. under the County's
approved Charter. the County Council




the choice that a voter makes on a partisan primary ballot regarding political party affiliation.
[emphasis added]

           4.2 RCW 29A.36.111
           This statute, entitled: "Uniformity, arrangement, contents required," provides as follows:

Every ballot for a single combination of issues, offices, and candidates shall be uniform within a
precinct and shall identify the type of primary or election, the county, and the date of the primary or
election, and the ballot or voting device shall contain instructions on the proper method of recording a
vote, including write-in votes. Each position, together with the names of the candidates for that office,
shall be clearly separated from other offices or positions in the same jurisdiction. The offices in each
jurisdiction shall be clearly separated from each other. No paper ballot or ballot card may be marked in
any way that would permit the identification of the person who voted that ballot. [emphasis added]

           4.3 RCW 29A.36.161
           This statute, entitled" Arrangement of instructions, measures, offices          -
Order of candidates - Numbering of ballots," provides in subsection 5 as follows:

All paper ballots and ballot cards used at a polling place must be sequentially numbered in such a way to
pennit removal of such numbers without leaving any identifying marks on the ballot. [emphasis
added]
           4.4 RCW 29A.44.221
           This statute, entitled "Casting vote," provides in pertinent part as follows:

On signing the precinct list of registered voters or being issued a ballot, the voter shall, without leaving
the polling place or disability access location, proceed to one of the voting booths or voting devices to
cast his or her vote. When county election procedures so provide, the election officers may tear off and
retain the numbered stub from the ballot before delivering it to the voter. If an election officer has not
already done so, when the voter has finished, he or she shall either (1) remove the numbered stub from
the ballot, place the ballot in the ballot box, and return the number to the election officers, or (2) deliver
the entire ballot to the election officers, who shall remove the numbered stub from the ballot and place
the ballot in the ballot box. *** [emphasis added]

           4.5 WAC 434-230-180
           This regulation of the Washington Administrative Code prohibits the identification
of individual ballots in following language:
There shall be no marks on the ballot cards which would distinguish an individual voter's ballot
card from other ballot cards.

D. Relief Requested
       Wherefore, Plaintiffs are entitled to the following relief on the grounds stated and pray
for a judgment and decree against Defendants as follows:

       1. Declaratory Judgment
       An actual controversy exists between Plaintiffs and Defendants with regard to Plaintiffs'
constitutional and lawfully protected rights in connection with the Defendants' utilization of the
Ballot Tracker system in the past and in the future. Plaintiffs are entitled to a declaratory
judgment establishing the unlawfulness of the Ballot Tracker system and the harm to Plaintiffs
and the voters of San Juan County.

       2. Injunction
              2.1 Deprivation of Plaintiffs' Rights
       There exists an imminent and ongoing threat by Defendants to deprive Plaintiffs of their
rights to the sanctity of the secret ballot.

              2.2 Irreparable Harm
       Plaintiffs will suffer irreparable injury if the Ballot Tracker system is continued in the
manner it has in the past and as alleged herein.

              2.3 Right to Injunctive Relief
Plaintiffs are entitled to preliminary and permanent injunctive relief, restraining Defendants
from using, maintaining and continuing the use of the Ballot Tracker system in the unlawful
manner alleged herein. The Court should specifically restrain Defendants from preparing and
distributing ballots that have unique identifying numbers or other distinguishing mark or
information printed or affixed to them that would in any way allow election workers or persons
privy to the Ballot Tracker system or anyone else to trace or link any voter's identity to any
particular ballot, whether by decryption or any other means or device.

       3. Attorneys Fees & Costs.
       Plaintiffs have incurred and will incur certain litigation costs and attorneys fees in
processing and prosecuting their claims herein and, thus, are entitled to recover their
reasonable attorneys fees pursuant to 42 U.S.C. §1988 plus their other taxable costs of suit in
an amount to be proven at the time of trial.

       4. Other Relief
       Plaintiffs also pray for such other and further relief as to the Court seems just.




Dated this 26th day of January, 2007




                                                                ___________/s/ _______
                                                                JEROME R. CRONK. WSBA #357

                                                                              Attorney for Plantiffs

								
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