County files for protective order

COEUR d'ALENE - Kootenai County objects.

The county has filed a motion for a protective order on the documents Coeur d'Alene election challenger Jim Brannon requested two weeks ago, claiming protecting the secrecy of the votes is constitutionally required.

The county filed the motion Friday, the deadline 1st District Judge Charles Hosack gave the county at the Feb. 12 hearing on Brannon's motion to compel the city to turn over those documents.

The city couldn't turn them over since they're not the legal guardian, so Hosack told Brannon's attorney Starr Kelso to take his request to the county, which he did a few days later.

"It's a different sort of case, it's personal to every voter in Kootenai County," said John Cafferty, civil deputy prosecuting attorney. "The law is pretty clear you don't give that type of information out."

The timing doesn't afford the county proper response time either, Cafferty's written response states, as the county was not present at the last hearing when Hosack made his order.

Brannon, Seat 2 City Council challenger who lost his race by five votes, is challenging the city's general election on grounds, among others, that inadmissible ballots were counted.

His request is for 49 documents including, but not limited to, ballots, envelopes, absentee ballot applications, voter registration cards and e-mails, letters, memos or documentation from the city on the general election.

That scope is too broad, the county argued, since it ran seven city elections, a fire district election and a countywide jail vote.

Names are not on the ballots, but citing the Supreme Court, "given enough opportunity, parties can evaluate the cast ballots to determine the identity of the castor of the ballot," the motions states.

Ilene Goff, with the Secretary of State's election department, said determining the actual voter by looking at the ballots would be impossible, since the voters only filled in the bubbles beside their vote.

"There's no way they can find out whose ballot it is, because there's not a name on the ballot," she said.

But Cafferty said the county wasn't comfortable taking a chance on the possible constitutional infraction.

He estimated that producing the requested documents would require more than 1,000 personnel hours and $30,000, especially because voters' personal information on registration cards such as birth dates and driver's license numbers wouldn't be allowed to be turned over.

Brannon and the city have been in court several times for various hearings and motions since the Nov. 3 election was challenged.

In his recent motion's summary, Cafferty called the process a "witch hunt," which, if allowed to continue in its existing fashion "flies in the face of the Idaho Constitution."

It could also set a procedural precedent for any unsatisfied election candidate, he wrote.

Kelso disagreed.

"If this legitimate review of election documents is to be called a witch hunt, then I am Mr. Brannon's guide and I intend to do everything that I can to see to it that Mr. Brannon, and each city voter, fills their tag," Kelso said in an e-mail to The Press.

The motion to quash the subpoena request will go before the judge at 3:30 p.m. March 2, the same time as the city's motion to dismiss the suit.