In resolving this dispute, we will assume that it may be technologically
feasible—if not now, then perhaps in the future—to make copies of electronic or
digital image files of all pretabulated ballots without delaying the election results.
Even so, the fundamental issue that must be addressed is whether ballot images
are exempt as a matter of law from production under the Public Records Act.
White argues that the image files he has requested are "election records,"
not "ballots." In his view, "each voter has only one ballot per election, not many."
The paper ballot on which the voter's choice is recorded is, according to White,
the only legal "ballot" as that term is used in Title 29A RCW. Copies and images
of ballots, he contends, are unprotected by the statutes implementing the
constitutional mandate for ballot secrecy.
No. 72028-7-1/6
A statute lists four definitions of "ballot," to be chosen "as the context
implies":
(1) "Ballot" means, as the context implies, either:
(a) The issues and offices to be voted upon in a jurisdiction
or portion of a jurisdiction at a particular primary, general election,
or special election;
(b) A facsimile of the contents of a particular ballot whether
printed on a paper ballot or ballot card or as part of a voting
machine or voting device;
(c) A physical or electronic record of the choices of an
individual voter in a particular primary, general election, or special
election; or
(d) The physical document on which the voter's choices are
to be recorded
RCW 29A.04.008(1). White's preferred definition—"The physical document on
which the voter's choices are to be recorded"—is only one of the four definitions.
RCW29A.04.008(1)(d).