DEBRA BOWEN, California Secretary of State, filed a lawsuit Monday against Election Systems & Software (ES&S), alleging that it sold uncertified voting machines in her State.

The lawsuit looks to be more about money and political face than voting or anything else.

California had certified ES&S Automark A100 e-voting machines to assist blind voters. The machines read ballot choices into headphones worn by the voters. The voters then make their selections, which the machines mark on paper ballots and read back to them. This enables visually-impaired citizens to vote independently and privately without help.

The manufacturer for ES&S, Automark Technical Systems, then made minor engineering changes to the machines, relocating two circuit boards, rerouting cables and changing the configuration of mounting brackets. So ES&S rebranded them as Automark A200 models.

Five California counties bought 972 Automark A200 voting machines, taken all together: Colusa purchased 20, Merced 104, Marin 130, Solano 160, and San Francisco 558. The counties paid ES&S nearly $5 million dollars, to comply with US Help America Vote Act.

But a condition of California's certification of the Automark A100 devices was that no "substitution or modification of the voting systems shall be made with respect to any component ... until the secretary of state has been notified in writing and has determined that the proposed change or modification does not impair the accuracy and efficiency of the voting systems sufficient to require a reexamination and approval."

It's that condition upon which the California Secretary of State hangs her lawsuit, because she says that ES&S didn't notify her of the changes that resulted in the A200 model boxes.

Apparently outraged over its affront to the majesty of California law and the dignity of her office, Bowen said in a statement, "ES&S ignored the law over and over and over again, and it got caught." She went on to say, "California law is very clear on this issue. I am not going to stand on the sidelines and watch a voting system vendor come into this state, ignore the laws and make millions of dollars from California's taxpayers in the process."

The lawsuit asks for a $10,000 penalty per Automark A200 machine sold in the State, or $9.72 million, plus almost $5 million to reimburse the counties for the cost of the devices.

Nonetheless, in August she recertified, with restrictions, the ES&S Automark A200 voting machines, among machines sold by other e-voting vendors, for use in California elections.

Last month Bowen held a public hearing on the matter. She said at the time that ES&S had shown no evidence to substantiate its contention that it had previously notified her office in advance of the changes. ES&S also claimed that the changes made were so minor that it was not required to submit the modified Automark A200 models for State review.

ES&S said in a statement Monday that the "limited modifications made to the AutoMark's hardware were extremely minor and had nothing to do with the operation or functionality of the Voter Assist Terminal. The secretary of state's office has not disputed that fact."

It also said that the Automark A200 model has been recertified to US federal government standards: "The hardware changes were approved through the established process to review, test and qualify voting equipment at the national level. As a result, the ES&S AutoMark in use across the country and in California has been tested and federally qualified for certification."

ES&S is reviewing the lawsuit, its statement said. It added: "Throughout this process, we have asked that the secretary of state's staff consider all relevant information, deal with each election equipment manufacturer fairly and act in the best interests of California voters. Unfortunately, the secretary's determination and the lawsuit she is filing fails to do this and may adversely affect the use of a widely acclaimed device that has allowed many California voters with disabilities to vote privately and independently for the first time."

ES&S manufacturer Automark also stated on its website in August that the changes made to the design of the Automark A200 models didn't modify the machine's functionality at all, saying: "These engineering changes were nonfunctional modifications made for ease of manufacture and in no way changed the operation of the device."

It's hard to have much sympathy for either party in this lawsuit.

The California Secretary of State certainly appears to be hauling a vendor into court over a relatively trivial oversight, and with dollar signs in her eyes rather than the interests of California's visually-impaired voters at heart. After all, earlier this year she recertified the machines at issue for continued use, which she couldn't reasonably have done if she had any real concerns about their actual fitness. She's setting up the lawyers for a lot of work to go to trial and in inevitable appeals, while in the end the State might spend as much on the lawsuit as it gains if it prevails. $15 million is but a drop in that State's budget bucket.

On the other hand, ES&S has been accused of perpetrating some serious electronic voting shenanigans contributing to election "irregularities" elsewhere, so one might be excused for thinking that such a lawsuit seeking $15 million couldn't happen to a nicer company. µ

L'INQ
ComputerWorld

See Also
Voting machine company has its collar felt
Diebold voting machines are insecure