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Voting Machine Company To
Face Millions In Fines
Brad Friedman
Brad Blog
Tuesday Aug 21, 2007
"ES&S sold nearly 1,000 voting machines in California without
telling the counties that bought them that they had never been
certified for use in this state," CA Secretary of State Debra
Bowen announced in a statement released moments ago. (Complete
statement now posted at end of article).
"Given that each machine costs about $5,000, it appears ES&S
has taken $5 million out of the pockets of several California
counties, that were simply trying to follow the law and equip
their polling places with certified voting machines."
"Not only did ES&S sell machines to California counties
that weren’t state certified, it’s clear the machines weren’t
even federally certified when the company delivered them to California,”
Bowen continued in the no-holds-barred statement. "While ES&S
may not like California law, I expect the company to follow the
law and not trample over it by selling uncertified voting equipment
in this state."
(Article continues below)
She went on to add that she intends "to go after the company
for the full $9.72 million in penalties allowable by law, along
with the original $5 million the company took from counties’ pockets."
She ain't kidding! ES&S, the country's largest distributor
of voting machines, looks to be in a lot of trouble in California.
Earlier we reported that a public
notice from the CA Secretary of State's office was posted
this morning by Thad Hall of CalTech announcing that the company
"has violated" CA Elections Code by modifying "hundreds of units
of a version of the AutoMARK ballot marking device" without certification
or permission of the Secretary of State...
Election Systems & Software, Inc. (ES&S)
has violated Elections Code section 19213 by deploying for use
in polling places in several California counties hundreds of units
of a version of the AutoMARK ballot marking device that was changed
and modified from the version approved by the Secretary of State,
without notifying the Secretary of State and without a determination
having been made by the Secretary of State that the change or
modification does not impair the accuracy and efficiency of the
AutoMARK sufficient to require a reexamination and re-approval
of the AutoMARK or the voting system of which it is a part.
The notice (now posted
at the CA SoS site [PDF] as well) goes on to announce
a hearing that will be held in Sacramento on September 20th to
determine the penalties that ES&S may face, including a $10,000
fine per violation, complete refund for the price of the "compromised
voting system, whether or not the voting system has been used
in an election," full decertification of the system, and prohibition
from doing business in the state.
The penalties could mirror those brought against the Diebold
voting machine company back in 2004 when then-Secretary of State
Kevin Shelley discovered the company had secretly installed uncertified
updates to their voting systems in several counties just before
the primary elections that year. The Diebold systems in question
were decertified at the time, and Diebold faced financial penalties.
Here's how the notice from current CA SoS Debra Bowen describes
the severe penalties that ES&S may be facing, as shall be
determined at the hearing next month, for their illegal modifications
under section 19213 of the CA Election Law...
ES&S failed to participate in Bowen's recent "Top-to-Bottom
Review" of all certified voting systems in the state, as they
refused to turn over the requisite source code and other materials
in time for the study. Now, perhaps, we know why they were unwilling
to do so.
As The BRAD BLOG reported
several weeks ago, there were also questions about the InkaVote
Plus system as distributed by ES&S for use in Los Angeles
County as well. At the time, it was reported that the source code
ES&S eventually turned over --- some three months too late
to be used in the "Top-to-Bottom Review" --- for that system did
not seem to match the version stored in escrow under state law.
The question of vendors using different software than that which
has been placed in escrow raises notable concerns about the effectiveness
of similar such "escrow laws" for e-voting software around the
country, and current being considered by the U.S. Congress.
While the InkaVote system has, for the time being, been decertified
[PDF] for use in the country's most populace county, the issue
of whether the source code in escrow was a different version remained
"unresolved" as of several weeks ago when we asked Bowen herself
about it.
If the earlier reports are verified as accurate, and it's shown
that ES&S also used uncertified software in Los Angeles County,
the company may face similar penalties for their uncertified use
of that system.
UPDATE: The statement released this afternoon from SoS Bowen
follows in full below...
DB07:051
FOR IMMEDIATE RELEASE: August 21, 2007
Contact: Nicole Winger (916) 653-6575
Did ES&S Sell Uncertified Voting
Equipment To California Counties?
Secretary of State Bowen Sets Hearing to Investigate Company
SACRAMENTO – Secretary of State Debra Bowen today announced
she has set a public hearing for September 20, 2007, to examine
whether Election Systems & Software, Inc. (ES&S) sold
uncertified voting machines to as many as five California counties.
“ES&S sold nearly 1,000 voting machines in California
without telling the counties that bought them that they had
never been certified for use in this state,” said Secretary
Bowen, the state’s chief elections officer. “Given that each
machine costs about $5,000, it appears ES&S has taken $5
million out of the pockets of several California counties that
were simply trying to follow the law and equip their polling
places with certified voting machines.”
The ES&S AutoMARK Version 1.0, also known as Phase One
or Model A100, is an electronic ballot-marking device that the
Secretary of State certified for use in California in August
2005. According to information provided by the counties to the
Secretary of State, 14 counties (Amador, Calaveras, Colusa,
Contra Costa, Marin, Merced, Sacramento, San Francisco, San
Luis Obispo, Santa Barbara, Siskiyou, Solano, Stanislaus and
Tuolumne) use the AutoMARK to comply with the Help America Vote
Act (HAVA) requirement to provide at least one machine in each
polling place so voters with disabilities can cast ballots independently.
However, according to information obtained by Secretary Bowen,
ES&S sold AutoMARK Version 1.1, also known as Phase Two
or Model A200, to five of those counties (San Francisco, Colusa,
Marin, Merced and Solano) in 2006. ES&S had never submitted
Phase Two, a version that is substantially different from the
state-certified AutoMARK Phase One, to the California Secretary
of State for certification. Furthermore, ES&S delivered
hundreds of AutoMARK Phase Two machines to California counties
months before the model’s August 2006 federal certification.
“Not only did ES&S sell machines to California counties
that weren’t state certified, it’s clear the machines weren’t
even federally certified when the company delivered them to
California,” Bowen continued. “While ES&S may not like
California law, I expect the company to follow the law and not
trample over it by selling uncertified voting equipment in this
state.”
Under California law, no voting system or part of a voting
system can be used in the state until it has been certified
by the Secretary of State. Vendors also are required to get
the Secretary’s approval of any changes to a certified voting
system. If the Secretary of State determines a certified voting
system has been modified without such approval, she can ask
a court or an administrative law judge to impose any of a number
of penalties. The Secretary of State is required to hold a public
hearing – and give 30 days advance notice – before formally
asking for penalties to be imposed on the vendor.
“If ES&S has broken the law and misled counties into buying
nearly 1,000 uncertified machines, I intend to go after the
company for the full $9.72 million in penalties allowable by
law, along with the original $5 million the company took from
counties’ pockets,” concluded Bowen.
According to information ES&S provided to the Secretary
of State, it sold 972 of its uncertified Phase Two machines
to:
Colusa County 20 machines
Marin County 130 machines
Merced County 104 machines
San Francisco City & County 558 machines
Solano County 160 machines
California law authorizes the Secretary of State to pursue
the following penalties against a voting system manufacturer
for making any unauthorized change in the hardware, software
or firmware of a certified or conditionally certified system:
Damages up to $10,000 per violation, counting each voting
machine as a separate violation. (This money would be evenly
split between the Secretary of State and the affected county
where the violation occurred);
A refund of all money paid by a county to the voting system
manufacturer, regardless of whether the voting system had been
used in an election;
Decertification of the voting system in question;
Prohibition of the manufacturer from doing any elections-related
business in the state for up to three years; and
Any other remedial actions authorized by law to prevent “unjust
enrichment of the offending party.”
The public hearing regarding ES&S will be held on September
20, 2007, at 10:00 a.m. in the auditorium of the Secretary of
State’s office in Sacramento. The hearing notice is at http://www.sos.ca.gov/elections/voting_systems....pdf.
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INFOWARS:
BECAUSE THERE'S A WAR ON FOR YOUR MIND
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