E-voting vendor Election Systems & Software (ES&S), which was sued Monday by the California Secretary of State for allegedly selling uncertified ballot-marking devices to five counties in the state, was hit by another related lawsuit a day later -- this time from the city of San Francisco.
In the 23-page lawsuit filed in San Francisco Superior Court by the city's attorney, Dennis Herrera, the city alleges that the Omaha-based e-voting vendor sold its ballot-marking devices that were not re-certified after its manufacturing processes were changed. The city alleges that by not having the devices re-certified, the vendor breached its contract with the city and acted fraudulently.
In a statement, ES&S denied the allegations and said that Herrera "ignores the facts presented to his office and makes inflated and distorted claims based on misstatements of the facts. Moreover, inexplicably and unfortunately, this suit deliberately jeopardizes San Francisco's use of a widely acclaimed ballot-marking device that has been federally qualified and certified and installed in 29 states. The AutoMARK has allowed many San Francisco voters with disabilities to vote privately and independently for the first time. Frankly, we are bewildered as to how this action will improve elections in San Francisco. In short, while the suit accuses the vendor of making false claims, the only false claim is the lawsuit itself."
ES&S and the city have had a contract for e-voting equipment since December 1999, according to the lawsuit.
In April 2006, ES&S sold the city 565 AutoMARK A100 Voter Assist Terminals, which allow visually impaired and other disabled voters to fill out paper ballots by listening to their choices through headphones as they make their selections. The devices then record the votes on the paper ballots, which are verbally read back to the voters before being finalized and run through an optical scanner. The devices are designed to allow disabled voters to cast ballots without help from others, in compliance with the federal Help America Vote Act (HAVA).
The problem, according to the lawsuit, is that the city was sent an updated Model A200 version of the terminals, which allegedly had not been re-certified with the state secretary of state as required, according to the lawsuit. That is the issue at the heart of the lawsuit filed Monday by California Secretary of State Debra Bowen.
"Unlike the A100 machines, the A200s contained modified hardware, software and/or firmware that the Secretary of State had never certified for use in California elections," the San Francisco lawsuit states. "Federal certification stickers on the AutoMARK machines delivered to San Francisco, manuals and other written materials that ES&S provided with the uncertified A200 machines further represented that the machines were certified A100 machines. On Nov. 19, 2007, the California Secretary of State released formal findings that the AutoMARKs ES&S sold and delivered to San Francisco were uncertified, thus establishing that ES&S had breached the agreement and that its prior representations were false."
"San Francisco's experience with ES&S raises extremely troubling questions, not simply about the integrity of this company's technology, but about the integrity of this company itself," Herrera said in a statement. "There can be no more important duty in a representative democracy than to conduct elections, and it is a travesty to see that duty so flagrantly undermined by the fraudulent conduct of an election systems vendor. This is an injustice that cries out for a strong response, and I intend to aggressively litigate the city's interests under our contract and under the law."
In its statement, ES&S said it "went above and beyond our obligations in our contract with San Francisco.
"The central focus of the city's lawsuit is the AutoMARK device that allows voters with disabilities to vote privately and independently," the company said. "It does not tabulate votes; it allows voters to mark a paper optical scan ballot. The suit's claims boil down to questions about the approval of minor modifications to the AutoMARK's hardware. It has been established that federal testing authorities reviewed and approved those modifications and that those modifications had no effect on the device's operations. It was also the practice at the time in California and other states that further notice of such [minimal] modifications, approved by federal authorities, was not necessary."
ES&S has said that the modifications to the AutoMARK devices included the relocation of two circuit boards, internal wiring re-routing and changes to mounting bracket supports. The company has said that none of the changes constitute modifications that required the devices to be re-certified. ES&S has said that the firmware in both the A100 and A200 models of the terminals is the same certified firmware.
"Further, California did, in fact, certify the AutoMARK in 2005 before the modifications and the state certified the AutoMARK, as modified and as part of San Francisco's voting system, in 2006," ES&S said. "The AutoMARK device has performed well in San Francisco in several election events. The suit's claims of the sale of uncertified devices crumbles under these facts."