California sues e-voting vendor over hardware changes

State alleges company sold 972 noncertified ballot-marking devices to five counties last year.

Does relocating two circuit boards, rerouting several internal cables and changing some mounting bracket supports mean an e-voting device must be recertified to meet state e-voting requirements?

California Secretary of State Debra Bowen says yes. E-voting machine vendor Election Systems & Software Inc. (ES&S), which has been sued by Bowen's office over those changes, says no.

In an 18-page lawsuit filed Monday by the California secretary of state's office against Omaha-based ES&S, Bowen, who oversees elections for the state, alleges that the company sold 972 noncertified ballot-marking devices to five counties last year after making internal changes that were not recertified by the state.

ES&S contracts with AutoMark Technical Systems for the manufacturing of ES&S's AutoMark Voter Assist Terminals, which allow visually-impaired 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 by election officials. 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 issue arose last July, when Bowen learned that internal modifications had been made to the original AutoMark A100 devices, which were renamed as AutoMark A200 models and sold to the counties without being recertified. Fourteen counties in the state use ES&S devices.

"ES&S ignored the law over and over and over again, and it got caught," Bowen said in a statement (download PDF). "California law is very clear on this issue. I am not going to stand on the sidelines and watch a voting system vendor come into this state, ignore the laws and make millions of dollars from California's taxpayers in the process."

The lawsuit seeks US$9.72 million in penalties for selling the 972 machines, and nearly $5 million to reimburse the counties that bought the non-certified hardware. Colusa County bought 20 machines, Marin County bought 130, Merced County bought 104, San Francisco County bought 558, and Solano County bought 160.

The original AutoMark A100 devices were conditionally certified by the state in August 2005 by a previous secretary of state, according to Bowen's office. One condition of that certification, according to her office, was that no "substitution or modification of the voting systems shall be made with respect to any component of the voting systems ... until the secretary of state has been notified in writing and has determined that the proposed change or modification does not impair the accuracy and efficiency of the voting systems sufficient to require a reexamination and approval."

Because that was not done for the A200 model, the latest device does not meet state requirements, she said.

Bowen held a public hearing last month on the matter, but said ES&S provided no evidence to substantiate its claim that it had previously notified her office of the upcoming changes. The company also contended that the changes to the AutoMark A100 were so minor that ES&S was not required to submit them for review.

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A spokesman for Bowen's office could not be reached for comment Tuesday.

In a statement Monday, ES&S said that the "limited modifications made to the AutoMark's hardware were extremely minor and had nothing to do with the operation or functionality of the Voter Assist Terminal. The secretary of state's office has not disputed that fact."

The only changes made to the devices were minor engineering modifications, according to ES&S.

The company also said that the new A200 model was recertified and requalified under federal requirements through testing done by an independent testing lab. "The hardware changes were approved through the established process to review, test and qualify voting equipment at the national level," ES&S said. "As a result, the ES&S AutoMark in use across the country and in California has been tested and federally qualified for certification."

"We are reviewing the determination issued today by the California secretary of state," the company said. "Throughout this process, we have asked that the secretary of state's staff consider all relevant information, deal with each election equipment manufacturer fairly and act in the best interests of California voters. Unfortunately, the secretary's determination and the lawsuit she is filing fails to do this and may adversely affect the use of a widely acclaimed device that has allowed many California voters with disabilities to vote privately and independently for the first time."

In a statement on its Web site in August, AutoMark said that the firmware in the original A100 and revised A200 devices is exactly the same firmware that state and federal authorities previously certified. "During the manufacturing process, ATS, with the approval of the independent federal testing agency and ES&S, implemented certain engineering changes that collectively became known as 'A200' or 'Phase 2,'" the company said. "These engineering changes were nonfunctional modifications made for ease of manufacture and in no way changed the operation of the device."