Voting Machine Company Claims Chairwoman's Missive 'An Attempt to Intimidate, Unduly Influence' Florida Court
Plaintiff Attorney Says Claim is 'Remarkable,' 'Takes a Lot of Chutzpah'
By Brad Friedman on 1/9/2007, 9:46pm PT  

Describing it as a "threat...intended to interfere with the independence of the judiciary" in Florida's 13th Congressional District election contest, one of the defendants in the case, Elections Systems & Software, Inc. (ES&S), has filed a motion to strike a letter sent last week to Florida's appellate court from the Chair of the U.S. House Administration Committee, The BRAD BLOG has learned.

Attorneys for the plaintiffs describe the motion as "remarkable" and "a blatant thumb in the eye of Congress."

In her January 5th letter [PDF], the new Democratic chair of the committee, Juanita Millender-McDonald, responded to a lower court's decision at the end of the year refusing the release of the computer source code used on the paperless ES&S touch-screen systems during last November's contested election. Circuit Court Judge William L. Gary held in his decision at that time that the proprietary "trade secrets" of ES&S took precedence over Florida voters' right to know what actually occurred in their own U.S. House election.

The plaintiffs in the case --- Democrat Christine Jennings and several non-partisan election watchdog groups --- had requested review of the source code to aid in an independent expert investigation to help determine what went wrong when Sarasota's touch-screen systems, made by ES&S, failed to report some 18,000 votes in Jennings's race for the U.S. House against the Republican Vern Buchanan.

Buchanan was certified as the "winner" by the state of Florida despite his 369 vote margin and questions about the contest based on the extraordinarily high undervote rate on Sarasota County's voting systems. The still-unexplained undervote rate in the county was approximately five times higher than in the same race in neighboring counties, and similarly much higher than the undervote rate in the same race on the paper absentee ballots in the very same county.

In today's motion [PDF], obtained this afternoon by The BRAD BLOG, ES&S demands the court strike Millender-McDonald's letter from the record. They claim that it's an "unauthorized, non-party response" and that her letter was a "thinly veiled intimidate this Court and unduly influence its deliberations in order to give Petitioner [Jennings], a member of Millender-McDonald's political party, an unwarranted advantage in this election contest."

That, despite the fact that Jennings has challenged the election in the U.S. House under the Federal Contested Elections Act and that a letter [PDF], similarly from the U.S. House Administration Committee --- then under Republican rule --- sent to a California court was instrumental and cited by the Judge in the dismissal of a contested U.S. House Special Election last summer between Brian Bilbray (R) and Francine Busby (D) in California's 50th district.

David Becker, a Senior Attorney at PFAW Foundation, one of the groups supporting the voter plaintiffs in the case, tells The BRAD BLOG that the claims made by ES&S in their motion "take a lot of chutzpah." ...

"The filing by ES&S is remarkable if only because it's such a blatant thumb in the eye of Congress," Becker explained in an E-mail this afternoon. "It's basically a request for the court, which is staffed by experienced appellate judges, to ignore the letter and pretend that they never saw it."

And yet, ES&S charges that "Millender-McDonald has no standing to participate in the review of the trial court's order, and because the Response itself is an improper attempt to influence this Court by interjecting non-record matters into the proceeding."

Another source close to the plaintiffs was similarly outraged by the latest move by ES&S and added that "on top of trying to prevent expert scrutiny of the source code, ES&S apparently is trying to keep everything else from the Court of Appeal."

While the fur continues to fly in the Sarasota case --- as a direct, yet predictable, result of their use of uncountable and unverifiable electronic voting machines --- Buchanan was seated "provisionally" in the U.S. House on January 4th pending an investigation into the matter. The election challenge in the House has been championed by Congressman Rush Holt (D-NJ), who has long rallied for Election Reform legislation and more oversight for electronic voting systems.

Four other 2006 House races have also been challenged in Congress this year, as we reported late last week. Four of those five challenges are based on races in Florida, all due to tht state's use of these god-awful, untested, thoroughly discredited electronic voting systems.

NOTE: The BRAD BLOG will also have an update on the aforementioned, and ongoing, CA50 Busby/Bilbray case on Wednesday. Stay tuned...