ES&S could face almost $10 million in fines for allegedly selling uncertified machines to five California counties.Electronic voting machine vendor Election Systems & Software faces almost $10 million in fines for allegedly selling uncertified systems to as many as five California counties.
California Secretary of State Debra Bowen has scheduled a Sept. 20 public hearing to examine ES&S alleged sale of almost 1,000 unauthorized e-voting machines that cost $5,000 each. Under California law, Bowen, the states chief elections officer, is required to hold a public hearing before formally imposing any penalties.
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, based in Omaha, Neb., sold certified machines to 14 counties, Bowen the week of Aug. 20 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 1.0.
In addition, according to the charge, ES&S delivered hundreds of AutoMark Version 1.1 machines to California counties months before the models August 2006 federal certification.
"Not only did ES&S sell machines to California counties that werent state-certified, its clear the machines werent 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."
ES&S responded to Bowens charges in a statement, saying, "We will certainly work with the state of California as this process moves forward. To be clear, this company has grown over the years by meeting the election-related needs of the jurisdictions we serve with quality technology and quality services."
Under California law, no voting system or part of a voting system can be used in the state without certification from the Secretary of States office. Vendors are also required to obtain approval from that office for any changes to a certified voting system.
"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," Bowen said. "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."
If Bowen determines that ES&S violated California voting laws, the company faces paying $5 million in restitution and a maximum of $9.72 million in penalties. "If ES&S has broken the law and misled counties into buying nearly 1,000 uncertified machines, I intend to go after the company," Bowen said.
Click here to read more about e-voting challenges and the results of Bowens investigations.
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.
ES&S chose not to submit its AutoMark 1.0 to the review because the company said it would not be using that system after 2007. Another ES&S-manufactured and distributed system, InkaVote Plus, is used only by Los Angeles County to comply with the disability access requirements of HAVA. According to Bowen, ES&S did not cooperate with the review, failing to provide information, equipment and money as required by California law.
ES&S subsequently resubmitted the equipment to California authorities and is currently undergoing the review process.
"Im mindful of the impact these decisions will have on voters, on county local elections officials, poll workers, voting system vendors and on others in California and across the nation," Bowen said. "However, its important to remember that in last Novembers election, at least two-thirds, and probably closer to 75 percent, of the 8.9 million voters who cast ballots did so using a paper absentee ballot or a paper optical scan ballot."
As part of the recertification process, Bowen announced new statewide conditions designed to enhance the security and reliability of the voting systems available for use in 2008 and beyond.
The new rules include banning all modem or wireless connections, in order to prevent connection to an unauthorized computer or network or to the Internet; security seal and chain-of-custody provisions; removing, blocking or disabling access to unneeded ports on the machines; reflashing or reinstalling the firmware or software in all voting system components; and requiring a 100 percent manual count of all ballots cast on the Sequoia and Diebold DRE machines.
Earlier in August, ES&S was the subject of an unflattering story on HDNets "Dan Rather Reports." The story contained allegations about the manufacturing process used to assemble ES&S iVotronic touch-screen voting terminals used in Floridas disputed 2006 13th District congressional race. ES&S adamantly denounced the story.
"HDNet failed to even mention the results of numerous independent reviews of that situation completed by the Florida Secretary of State and Florida State Election Directors office," ES&S said in a statement. "The collective findings of those reviews demonstrate that Sarasota Countys voting system performed properly and exactly as it was designed to function."
That said, the federal agency in charge of administering HAVA, the Election Assistance Commission, issued a certificate of noncompliance to ES&S in connection with the manufacturing process.
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