Company's AutoMARK Ballot Marking Devices Unapproved at State and Federal Levels, Could Bring $10,000 Fine Per Machine, Full Refund of Purchase Price, Prohibition from Doing Business in State
STATEMENT: SoS Bowen Says 1000 Uncertified Voting Machines Sold to Counties, She Intends to 'Go After Company For Full Allowable Penalty,' Millions 'Taken from Counties' Pockets'...
By Brad Friedman on 8/21/2007, 9:34am PT  

By Brad Friedman from St. Louis, MO...

ED NOTE: Story now updated with additional information and statement from Secretary of State Debra Bowen.

"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."

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 of 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...

(1) Monetary damages from the offending party or parties, not to exceed ten thousand dollars ($10,000) per violation. For purposes of this subdivision, each voting machine found to contain the unauthorized hardware, software, or firmware shall be considered a separate violation. Damages imposed pursuant to this subdivision shall be apportioned 50 percent to the county in which the violation occurred, if applicable, and 50 percent to the Office of the Secretary of State for purposes of bolstering voting systems security efforts.

(2) Immediate commencement of decertification proceedings for the voting system in question.

(3) Prohibiting the manufacturer or vendor of a voting system from doing any elections-related business in the state for one, two, or three years.

(4) Refund of all moneys paid by a locality for a compromised voting system, whether or not the voting system has been used in an election.

(5) Any other remedial actions authorized by law to prevent unjust enrichment of the offending party.

ES&S failed to participate in Bowen's recent "Top-to-Bottom Review" of all certified voting systems in the state, as the company refused to turn over the requisite source code and other materials in time for the study. Now, perhaps, we know why it was 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. 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 from 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 currently 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 populous 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 posted here [PDF].

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