California Sues E-Voting Vendor

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 counties.

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 counties.

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 Costa County.

"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 accountable."

ES&S maintains that the changes to the AutoMark machines were minor and approved by the federal government, if not California officials.

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"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 1.0.

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.