The BRAD BLOG obtains today's filings in Fitrakis v. Husted
UPDATE: Motions for TRO denied in both federal & state court, but state judge would reconsider if subsequent evidence of election tampering emerged...
By Ernest A. Canning on 11/5/2012, 10:06pm PT  

Earlier today, Brad Friedman reported in detail on the uncertified, "experimental" software patches that Ohio's Secretary of State Jon Husted (R) had secretly contracted [PDF] with Election Systems & Software, Inc. (ES&S) to create and install at the very last minute onto electronic central vote tabulation systems in 39 Ohio counties, encompassing more than 4 million Buckeye State voters.

We noted that Bob Fitrakis, one of the Ohio journalists at the Columbus Free Press who had initially broken the story late last week, was planning to file a legal complaint and temporary restraining order in hopes of blocking the use of the mysterious, untested software on the ES&S central tabulation systems in those counties.

Late tonight, just hours from the official opening of Election Day polls in the Buckeye State tomorrow, we obtained copies of both the complaint [PDF] and the motion for a temporary restraining order [PDF] which have now been filed in the U.S. District Court for the Southern District of Ohio, Eastern Division and where oral argument has been scheduled for tomorrow morning, Election Day, at 9am local time before Judge Gregory L. Frost, a George W. Bush appointee...

At tomorrow's hearing in Columbus, Judge Frost will be asked to rule on the motion for a TRO, as filed by Fitrakis, who, aside from being a long-time investigative journalist in the Buckeye State, is also an attorney, political science professor and a Green Party Congressional candidate. In both the TRO motion and in his full complaint, Fitrakis v. Husted, Fitrakis alleges that the Ohio Secretary of State violated the state Elections Code on Sept. 18, 2012 when he entered a contract with ES&S to provide "hardware and software designed to record and tabulate the votes cast by Ohio voters in the General Election on November 6, 2012...without...public bidding, without public review, and without approval of the technology review board."

In the complaint, Fitrakis alleges that the persons who are not under the supervision or control of the Secretary of State or the Ohio Boards of Elections, using private facilities, have "access" to "recording tabulation of votes" and that, by utilizing a "back door" installed by ES&S, those persons pose an imminent risk of irreparable harm to the rights of Ohio voters. They could, he charges, use that access to "alter the recording and tabulation of votes cast."

The complaint alleges that such alteration violates the 1st and 14th Amendments to the U.S. Constitution and seeks, among other remedies, the immediate issuance of a TRO that would prohibit use of the ES&S hardware and software for the Nov. 6 Election.

In today's previous report, we noted that Husted's office claimed that he did not have to first submit the software for testing or certification to the state because it was little more than "a reporting tool."

In his TRO motion, Fitrakis hit the issue head-on:

The defendants may try to argue that this new system does not by itself tabulate votes, and is therefore immune from being tested as provided for by law. They are wrong.

There has been no examination of the software that gives any information as to what it does. The only persons who know exactly what this software does are ES&S' own programming staff. Just because ES&S claims that this is "reporting software" which does not change the tabulation method does not mean that its claim is true. The law requiring testing and certification exists exactly because we do not make that kind of presumption. The average adult does not install software on his computer without scanning it for viruses and malicious code. Yet defendant Husted has done so in this case simply because ES&S claims that there is no malicious code. ES&S then claims that it does not need to check for malicious code because this installed software is not part of the tabulation system, when clearly it is.

Irreparable harm

As we detailed this morning, in an affidavit [PDF] which was filed with Fitrakis' motion, Jim March, a computer software and elections expert, states: "What ES&S has chosen to do here is extremely dangerous and exactly what you'd want to do if you wanted to plant a 'cheat' onto the central tabulator."

The case for irreparable harm is rather substantial. At worst, the ES&S contract could potentially enable individuals who are not under the control of any state elections authorities to maliciously alter the course of history without detection. And, regardless of which candidate prevailed, the outcome of another Presidential Election in Ohio could once again remain under a permanent cloud of doubt.

For many more details on this troubling story, what the OH Secretary of State claims the last minute "experimental" software is actually supposed to do, why election and computer experts have great concerns about those claims, and why the installation of secret, last-minute, software patches is a direct threat to both election results as well as confidence in the democratic system, please see our earlier, detailed report from this morning.

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UPDATE 11/6/12: In a ten-page decision [PDF], U.S. District Court Judge Gregory L. Frost, a George W. Bush appointee, denied a motion to block the use of an ES&S "Election Reporting Manager's Results Export Program (EXP) in connection with today's General Election in Ohio.

Judge Frost accepted the explanation offered by ES&S systems analyst William Malone, who in an affidavit, insisted that EXP was a "read only" utility software that "has no capability to edit, 'write', or in any way change [votes]." Frost rejected the affidavit and telephonic testimony of the computer experts relied upon by the plaintiff, Bob Fitrakis, because neither expert had tested the software. Fitrakis' claim that "there is no objective proof that the new software will not adversely affect the existing software" reversed the burden of proof --- a point that seems to evade the core argument that this is why testing is required under Ohio law rather than simply take the vendor at its word.

Frost noted a dispute as to whether Ohio law required testing and certification, but pointed out that Ohio Sec. of State Jon Husted (R) objected that Frost, a federal judge, did not have jurisdiction to determine the claim made by Fitrakis, in his capacity as an Ohio taxpayer, that the contract between ES&S violated Ohio law.

Free Press now reports that a motion filed in the Ohio Court of Common Pleas which sought the removal of "the uncertified, untested software" was denied by Judge Mark Serrott (D). "However," Free Press added, the judge left open the possibility that the case could be heard after the election, if there is evidence of election tampering. The judge declined to interfere in an on-going election, but indicated that he would consider taking action as the case continues after the election if it was needed."

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Ernest A. Canning has been an active member of the California state bar since 1977. Mr. Canning has received both undergraduate and graduate degrees in political science as well as a juris doctor. He is also a Vietnam vet (4th Infantry, Central Highlands 1968). Follow him on Twitter: @Cann4ing.

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