Last year, Superior Court Judge Mary Roberts dismissed a lawsuit that Lehto filed in 2005 against Sequoia and Snohomish County over irregularities he found after serving as a poll observer in the November 2004 election. After researching the irregularities, he later wrote a paper documenting that vote-switching had occurred, along with a wild statistical shift between the candidates chosen on paper ballots versus the candidates supposedly chosen on Sequoia’s touch-screen machines.

The paper serves as a basis for the lawsuit, which contends that the county violated Lehto’s constitutional rights by denying his request to examine the software code used in the vote tabulation. California-based Sequoia counters that its software is protected as a trade secret and that, because Lehto isn’t a direct party to the contract under which Snohomish County bought its 1,000 Sequoia machines, neither he nor any other voter has standing to challenge the contract.

Last March, Judge Roberts agreed and dismissed the case without allowing the matter to go to trial — something Lehto is now asking the appellate court to order. The main issue, says attorney Randy Gordon, who is fighting Sequoia for free, is that the casting and counting of votes is a core government function that cannot be made secret by delegation to a private party. Under Washington’s constitution, Gordon says, ballot counting is open to public scrutiny.

Snohomish County stopped using the voting machines last year when it went to all-mail balloting. As a result, it argues the lawsuit is moot. Gordon disagrees and is determined to get a ruling. “We believe it is an unconstitutional delegation to enter a contract hiring a black box to count votes,” he says, “and then, within the contract, say that the public’s right to know how their vote is being counted is barred by trade secret technology.”