California files a $15 million lawsuit against ES&S for selling machines not certified by the state.
E-voting vendor Election Systems & Software is facing a $15 million
lawsuit for allegedly selling uncertified voting machines in five California
California Secretary of State Debra Bowen filed the action after a
four-month investigation. According to the lawsuit, ES&S sold 972 AutoMark
machines without authorized hardware changes to San
Francisco, Colusa, Marin, Solano and Merced
counties. California law requires
all e-voting vendors to obtain state certification for all hardware sold to California
Bowen is seeking a $5 million refund to the counties, damages of $10,000 per
machine sold ($9.72 million) and fines of $50,000 per incident of putting
unauthorized hardware in e-voting machines.
The lawsuit follows demands from San Francisco
officials that ES&S, of Omaha, Neb.,
pay for the costs of decertifying ES&S machines. The county also wants
ES&S to cover the costs of moving borrowed, certified equipment from Contra
"ES&S has flouted California
law more than once and profited from its wrongdoing," Bowen said Nov. 20.
"I will not stand by and let this happen. I am taking steps to hold
ES&S maintains that the changes to the AutoMark machines were minor and
approved by the federal government, if not California
"It has been established that federal testing authorities reviewed and
approved those modifications and that those modifications had no effect on the
devices' operations," ES&S said in a Nov. 20 statement. "It was
also the practice at the time in California
and other states that further notice of such de minimis modifications, approved
by federal authorities, was not necessary."
ES&S is certified by California
to sell its AutoMark Version 1.0 machines to California
counties. The certification allows voting jurisdictions to comply with the HAVA
(Help America Vote Act) mandate that at least one machine in each polling place
allow voters with disabilities to cast ballots independently.
While ES&S sold certified machines to 14 counties, Bowen the week of Aug. 20 2007 charged that
the company also sold AutoMark Version 1.1 machines, which are not certified by
California voting authorities.
Bowen, in Sacramento, Calif.,
said the AutoMark Version 1.1 system is substantially different from Version
In addition, according to the charges, ES&S delivered hundreds of
AutoMark Version 1.1 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 said in a 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." California recently concluded a review of all state voting
systems and related security procedures. To complete the process, each system
was decertified and then recertified. In many cases, the recertification came
with a number of conditions. Systems from Diebold, Hart InterCivic and Sequoia
Voting Systems all received recertifications.