Maddening chain of email, querying the status of the Diebold failure discovered in Humboldt County, CA, illustrates the EAC's continued protection of e-voting vendors, at the expense of the voters
ALSO: CA said likely to decertify the flawed Diebold system, while the EAC fails to take any action at all...
By John Gideon on 2/23/2009, 12:13pm PT  

Guest Blogged by John Gideon of VotersUnite.org

"It is through the Constitution that we control the reins of government and insure that it remains the protector of individual, unalienable Rights - i.e., the servant of the People.

"Therefore, it behooves the People to show the Government that the People know what their Rights are and what Government's obligations are, that the People are watching Government as it exercises its delegated powers and that the People are prepared to act if the Government steps outside the boundaries drawn around its power by the Constitution." --- We The People Foundation

The U.S. Election Assistance Commission (EAC) works for the People. It doesn't work for special interests. It doesn't work for the voting system vendors. The EAC has an obligation, spelled out in its past advisories, public statements and, most importantly, in federal law, to carry out oversight of the voting systems we, the People, use in our federal elections. It does not matter that the EAC commissioners are not elected to their positions. They are still servants of the People.

Not long after being created by the Help America Vote Act (HAVA) of 2002, the EAC published, on June 8, 2004, "Chairman Soaries' Remarks about Electronic Voting Security Strategy for the November 2004 Presidential Election." The comments, by then EAC Chairman DeForest "Buster" Soaries included recommendations "to insure election integrity and promote voter confidence in the administration of the 2004 federal election," and stated, in part: "[The] EAC should solicit information about suspicious electronic voting system activity including software programming and should request aggressive investigative and prosecutorial responses from the U.S. Department of Justice Elections Crimes Branch in the Criminal Division."

The above was restated in a July 13, 2004 "Commission Advisory Letter" [PDF].

It's clear that if there is to be any federal body to recommend investigation and/or prosecution to the DoJ, in regards criminal violation of federal law concerning voting systems, it is to be the EAC, the body charged with testing, certifying, and performing as the "national clearinghouse...with respect to the administration of federal elections" (42 U.S.C. § 15322) and the electronic voting systems employed across the country.

And yet, the EAC has continued to utterly fail in those duties, as a particularly maddening chain of inquiries and emails --- back-and-forth and round-and-round --- that we'd sent to the EAC commissioners and their spokesperson over the past three months illustrates all too well. All we were trying to do was get a simple answer to a very simple question...

Last December 5th The BRAD BLOG reported about the discovery of votes that were "lost" on the Humboldt County, CA, electronic tabulation system. Then, three days later we reported that Diebold knew that their voting system might lose votes and, worse, had known about the flaw in their system for more than 4 years.

So who has the responsibility to do something about this? The EAC is not empowered to carry out criminal investigations or bring legal sanctions or prosecution. However, as with all federal agencies, the EAC has the responsibility to ask the DoJ to investigate potential violations of federal law and, if merited, to prosecute the offenders. That is serving the People.

On December 5, 2008 we wrote to the EAC's then Chairwoman Rosemary Rodriguez, Executive Director Tom Wilkey, Voting Systems Head Brian Hancock, and EAC Spokeswoman Jeannie Layson, alerting them to the troubling revelations in Humbolt County --- which forced its Registrar of Voters to submit a re-certification for their November election results to the state, once "lost" votes were discovered --- and inquiring whether or not they planned to take appropriate action with a referal to the DoJ [emphasis added]...

Subject: Diebold/Premier 1.18.19 Accuracy Problem
Date: Fri, 05 Dec 2008 05:54:02 -0800
From: John Gideon
To: Brian Hancock, Jeannie Layson, Tom Wilkey, Rosemary Rodriguez

This mornings Eureka Times-Standard has a news report from Humboldt Co California where they, for the first time, used the "Humboldt Election Transparency Project". In this project all paper ballots are scanned after counting and then the images are placed online for anyone's use.

The project also has software that was used, post election certification, to check the ballots.

Thanks to this project they found that the Diebold/Premier GEMS [Global Election Management Server] v. 1.18.19 that they were using seems to have a problem. If it had not been for that project 197 voters would not have had their ballots counted in last month's general election. All of the absentee ballots from one precinct would have been ignored.

The Registrar of Voters, Carolyn Crnich, deserves a huge congratulations for allowing this project to be stood up in her county. I know that her voters and, probably the Secretary of State, would agree with that.

What about the problem with GEMS. Well, according to the article Diebold has known about the problem since 2004 and they appear to have neglected to tell all of their customers. The county didn't know. The state didn't know. Two other California counties who also use that version claim to have known. Does Maryland know about this? If so what is their mitigation?

So, we have a vote counting problem with a voting system. The error cannot be attributed to any action by the voters. It is clear that the 197 miscounted ballots out of a total of 64,161 ballots cast in the county will amount to a higher than allowed for error rate. Therefore it is clear that the use of this voting system has resulted in a violation of HAVA Section 301(a)(5).

Will the EAC refer this violation of federal law to the Department of Justice for investigation? Or, will users of this particular system continue to use it and potentially lose hundreds of ballots?

After waiting for three weeks for a response, we sent a follow-up note on December 29th to the same addressees as the prior email [emphasis added again]...

Subject: Re: Diebold/Premier 1.18.19 Accuracy Problem
Date: Mon, 29 Dec 2008 09:37:00 -0800
From: John Gideon
To: Brian Hancock, Jeannie Layson, Tom Wilkey, Rosemary Rodriguez

Commissioner Rodriguez, Director Wilkey and Staff

This morning the Eureka Times-Standard has again posted an article about the failure of the voting system sold to Humboldt Co California by Diebold/Premier. Commissioner Rodriguez is thoroughly quoted in this article.

I am struck by the fact that Commissioner Rodriguez has failed to recognize that the use of the voting system in question, GEMS v. 1.18.19, is a violation of HAVA and therefore this incident should be referred to the Department of Justice for investigation. By their own admission, Diebold is negligent of sending out a voting system that is not accurate and when they realized their error they did not bother to recall and correct the error; they sent a short, two paragraph, informal memo to their customers. The EAC may not be able to carry out an investigation but the DoJ can and should do that.

The voting machine vendors should not be allowed to continue to put out voting systems that violate the mandates in HAVA while the EAC ignores the issue.

Below is an email I sent to all addressees on Dec. 5. I am still awaiting an answer to my simple question; "Will the EAC refer this violation of federal law to the Department of Justice for investigation?"

Within a couple hours, Commission Chair Rosemary Rodriguez replied to my email with an email of her own to EAC Director Tom Wilkey, asking him to discuss the matter with their Office of General Counsel (OGC), and acknowledging that the commission has, in the past, referred other matters --- on issues of "voter registration" --- to the DoJ...

Subject: Re: Diebold/Premier 1.18.19 Accuracy Problem
Date: Mon, 29 Dec 2008 12:43:13 -0500
From: Rosemary Rodriguez
To: John Gideon, Brian Hancock, Jeannie Layson, Tom Wilkey

Tom. Pls consult with the OGC on this. I know that we refer matters re voter registration because of our jurisdiction over the federal form but I know of no other referrals. Thanks.

It appears, from the above email, that Rodriguez may have never read the commission's own advisory from 2004, stating the position of the commission's very first chairman, that the "EAC should solicit information about suspicious electronic voting system activity including software programming and should request aggressive investigative and prosecutorial responses from the U.S. Department of Justice Elections Crimes Branch in the Criminal Division."

We received no acknowledgment from Wilkey, in regard to Rodriguez' request, nor any further response from anyone at the commission. So, nearly a month later, on January 21, 2009 we sent another email to EAC Spokeswoman Jeannie Layson, with a cc to the new Commission Chair Gineen Beach, Commissioner Rodriguez, Director Wilkey and Voting Systems Chief Brian Hancock, again requesting an answer to the original question sent nearly two months earlier, or, at least an explanation as to why no response would be forthcoming.

Layson punted, in response, shortly thereafter...

Subject: Re: Diebold/Premier 1.18.19 Accuracy Problem
Date: Thu, 22 Jan 2009 15:30:58 -0500
From: Jeannie Layson
To: John Gideon
CC: Brian Hancock, Ellen Theisen, Gineen Beach, Rosemary Rodriguez, Tom Wilkey

Mr. Gideon,

Your question is under review and we will have a more complete response in the near future.

The "near future" hadn't arrived over a week later, so on Friday, January 30th, we sent another email to what had become the regular list of addressees:

Subject: Re: Diebold/Premier 1.18.19 Accuracy Problem
Date: Fri, 30 Jan 2009
From: John Gideon
To: Jeannie Layson
cc: Brian Hancock, Ellen Theisen, Gineen Beach, Rosemary Rodriguez, Tom Wilkey

Ms Layson

It has now been a full month since I originally asked my question and a week since your last response.

The question was very simple. It required a 'Yes' or 'No'.

On the next Monday, Layson responded back with yet another stalling email...

Subject: Re: Diebold/Premier 1.18.19 Accuracy Problem
Date: Mon, 2 Feb 2009 07:36:17 -0500
From: Jeannie Layson
To: John Gideon

Mr. Gideon,

I am checking to see if the status has changed since my last response. I will be in touch shortly.

"Shortly" apparently meant more than another 8 days, since Layson hadn't been in touch following that note, so, on February 10th, the following email was sent to the commissioners and Director Wilkey [emphasis added yet again]...

Subject: Re: Diebold/Premier 1.18.19 Accuracy Problem
Date: Tue, 10 Feb 2009 10:39:09 -0800
From: John Gideon
To: Gineen Beach, Rosemary Rodriguez, Tom Wilkey
CC: Jeannie Layson, Ellen Theisen

Chair Beach, Commissioner Rodriguez, Director Wilkey

If you look to the bottom of this string of emails you will note that I brought this issue to your attention originally on Dec. 29, 2008. [ed note: The original query was actually a month earlier, on Dec. 5th, as seen in the first email posted above.] Almost immediately [following the Dec. 29th query] I received a response from Commissioner Rodriguez in which she requested Director Wilkey to contact the OGC on this matter.

Since that period I have asked what action is being taken and I have gotten less than satisfactory responses such as the last one I got from Ms. Layson that she was checking for a status change. It almost seems as if the EAC is dragging this out until I give up and drop the issue.

I understand that the EAC has no investigative ability with regards to violations of HAVA. The Dept. of Justice has that ability, however. Surely when faced with the evidence that a violation of the Help America Vote Act has taken place it must be the responsibility of the EAC to refer that violation to the DoJ for investigation.

In this case, as I have stated over and over, Diebold admitted in emails to their customers that their GEMS 1.18.19 may not always record all votes accurately. That should be enough right there to raise a flag at the EAC. However, it has now gone further with the use of that system by an unsuspecting California county which then experienced a loss of votes.

So, once more, will the EAC do the right thing and ask the DoJ to investigate a violation of HAVA Sec. 301(a)(5).

I will not forget about this issue. I will not just give up and go away.

I received the following response from Layson two days later...

Subject: Re: Diebold/Premier 1.18.19 Accuracy Problem
Date: Thu, 12 Feb 2009 14:30:08 -0500
From: Jeannie Layson
To: John Gideon
CC: Ellen Theisen, Gineen Beach, Rosemary Rodriguez, Tom Wilkey

Hello Mr. Gideon,

We're waiting on information from the CA Secretary of State's office and from Humboldt County, which we plan to post in the voting system reports clearinghouse. Then we will send out a notification to all stakeholders (including DOJ) about the information we've received and a link to the info.

After two and a half months, the EAC was saying in the above response, that, essentially they are going to do nothing but post links to any reports from California on their "Voting System Reports Clearinghouse" page at the EAC website (the "Clearinghouse" page is quite difficult to find, as its buried some four levels deep on the main menu via the EAC's front page) and then, likely, include the fact that they have done so, in their weekly newsletter. There would be no request for investigation, as per their original Chairman set out in 2004, and as echoed in an advisory publication at the time.

So, we took the opportunity to remind Layson, again, of the Commission's own 2004 Advisory statement, and notified them that we were not seeking "on the record comment" for possible publication in this matter...

Subject: Request For An On The Record Comment
Date: Wed, 18 Feb 2009 07:22:58 -0800
From: John Gideon
To: Jeannie Layson

On July 13, 2004 the commission issued "Commission Advisory Letter 2004-1". This letter was issued "to insure election integrity and promote voter confidence". In this letter the commission advised "EAC
should solicit information about suspicious electronic voting system activity including software programming and should request aggressive investigative and prosecutorial responses from the U. S. Department of
Justice Elections Crimes Branch in the Criminal Division."

We note that this advisory was written, and published, before the ex-NASED [National Association of State Election Directors] voting systems panel members, Tom Wilkey and Donneta Davidson, moved over to the EAC and joined Brian Hancock. All three were involved in the NASED voting system authorization process. [ed note: That's the process which first "tested" and then "qualified" the flawed Diebold/Premiere system in question for use by states around the country.]

I have tried since late December to get a 'Yes' or 'No' response with regards to a voting system that failed to accurately count votes, a violation of HAVA Section 301(a)(5). I have also provided a letter from
the vendor, Premier, that proves they knew the voting system was not always accurate.

In view of the fact that the EAC had previously announced a willingness to "request aggressive investigative and prosecutorial responses from the U.S. Department of Justice Elections Crimes Branch in the Criminal
Division" and in view of the fact that there is clear evidence of a violation of the Help America Vote Act of 2002 why has the EAC ignored my request for an answer as to whether the Commission would take action?

I will be writing an article on the seeming unwillingness of the commission to take any action on a violation of the federal law that is that commission's whole reason for being, while obfuscating and ignoring
a simple request for information from a citizen.

As has become expected, the response last week was, yet again, non-committal and generally non-responsive to the question...

Subject: Re: Request For An On The Record Comment
Date: Thu, 19 Feb 2009 09:45:09 -0500
From: Jeannie Layson
To: John Gideon
CC: Ellen Theisen, Tom Wilkey

Mr. Gideon,

Per my prior email, we are waiting on more information before making a determination.

...To which we sent the following response in turn...

Subject: Re: Request For An On The Record Comment
Date: Thu, 19 Feb 2009 07:18:32 -0800
From: John Gideon
To: Jeannie Layson
CC: Ellen Theisen, Tom Wilkey, Gineen Beach, Rosemary Rodriguez

Ms. Layson

To refresh your memory your prior email said, "We're waiting on information from the CA Secretary of State's office and from Humboldt County, which we plan to post in the voting system reports clearinghouse. Then we will send out a notification to all stakeholders (including DOJ) about the information we've received and a link to the info."

When I have gotten a response, this was the same type of non-responsive answer I have gotten from the EAC on this issue since Dec. 5. According to your prior email, the EAC has already made a determination to post it in the "clearinghouse" and inform the world, probably in the weekly EAC newsletter, that the information is there. No request for investigation. If you had simply said, "We don't feel any investigation of Diebold is warranted" you would have answered my question and you could have done that months ago.

What is there that is being hidden? Why does the EAC NOT want to request an investigation of Diebold for a violation of HAVA? Why does the present EAC seem to want to ignore the advice of the previous EAC leadership? Those are the questions I will be asking in an article to be posted sometime early next week.

...to which Layson responded...

Subject: Re: Request For An On The Record Comment
Date: Thu, 19 Feb 2009 10:34:35 -0500
From: Jeannie Layson
To: John Gideon
CC: Ellen Theisen, Gineen Beach, Rosemary Rodriguez, Tom Wilkey

I provided you information about what we plan to do regarding the clearinghouse. No determination has been made beyond that, so I can't give you a yes or no answer.

At this point, it seems obvious that someone would be making a determination concerning referral (or not) to the DoJ.

Recall, in the January 22nd response from Layson, she informed that the original "question is under review". But who would be doing that "review" and when would the determination finally be made?...

Subject: Re: Request For An On The Record Comment
Date: Thu, 19 Feb 2009 16:03:08 -0800
From: John Gideon
To: Jeannie Layson
CC: Ellen Theisen, Gineen Beach, Rosemary Rodriguez, Tom Wilkey, Brad Friedman

Ms. Layson

Who is making that determination and when can we expect a determination such that I get an answer to my original question of Dec. 5, 2008, "Will the EAC refer this violation of federal law to the Department of Justice for investigation?"

The next day, last Friday, came the unbelievable answer from a servant of the People...

Subject: Re: Request For An On The Record Comment
Date: Fri, 20 Feb 2009 12:21:24 -0500
From: Jeannie Layson
To: John Gideon
CC: Brad Friedman, Ellen Theisen, Gineen Beach, Rosemary Rodriguez, Tom Wikey

Mr. Gideon,

I do not have the answers to those questions. I will try to find out and let you know.

Jeannie Layson

And so it goes. Around and around again...

The EAC, via their spokeswoman, has been stalling for months, saying that "someone" was going to decide what action to take, at some point, but after three months, the mouth piece for the organization apparently has no idea about the status of anything, despite inquiry after inquiry.

So who is being protected by the EAC here? As stated in the email of 18 February, three members of the EAC, including one Commissioner (Donnetta Davidson); the EAC's Executive Director (Tom Wilkey); and their Voting Systems Certification Director (Brian Hancock); were all involved in the National Association of State Election Directors (NASED) process of authorizing voting systems for use at the federal level. That was the system that allowed the use of nearly every electronic voting system presently in use by states, including all of those that have failed in myriad elections in the past.

The list of e-voting systems approved for use by NASED --- which oversaw federal testing and approval of voting systems until only recently, as per the EAC's directive at their founding --- includes the failed Diebold GEMS v1.18.19.

Is it the voters or the vendors who are being protected by the EAC? If Diebold had been a drug company or auto maker they would have been told by the FDA or NTSB to remove their product from the market and fix the problem or, in the case of a problem with an automobile, recall the cars and make immediate repairs for customers free of charge. But the EAC does not see themselves as a "servant of the People", so, it seems, they continue to ignore problems, and put off those inquirying as to how --- and if --- they are doing their jobs, in hopes that the problem, and the People asking about it, will simply go away.

Perhaps it's time to replace the Executive Director and Commissioners with people who have the best interest of the People in mind. And certainly, it is time for someone to step up and ask the Department of Justice to investigate Diebold for knowingly allowing the use of a voting system that they knew was not accurate.

* * *

In the meantime, CA's Sec. of State Debra Bowen may be doing at least some of the EAC's work for them. She will be holding a Public Hearing [PDF] on Tuesday, March 17th in Sacramento, "to give people an opportunity to express their views regarding the investigation into" into the "anomaly" discovered in the Diebold/Premier GEMS v 1.18.19 voting system, by the citizens of Humboldt County.

The Times-Standard reported on Sunday that Bowen is likely to decertify the system in the state, as currently used by Humboldt, as well as a number of other counties. "The public hearing is typically the last step in the [decertification] process," according to a CA SoS spokesperson.

The software designer of the citizen project which discovered the problem in Humboldt, Mitch Trachtenberg, also believes that the DoJ should investigate the matter. "I think that would be totally appropriate," Trachtenberg told the Times-Standard. "They sold software that doesn't work."

The same Diebold system, "that doesn't work" --- as well as later versions, also believed to have the same programming bug, and also federally approved for states' use under the EAC/NASED program --- is used widely across the country, a full four years since Diebold admitted to the problem.