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ES&S accused of selling uncertified evoting machines

Un-inspected ballot machines bore official approval sticker

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California secretary of state Debra Bowen has ratcheted up her criticism of Election Systems & Software, accusing it of selling almost 1,000 evoting machines that have not been certified. The offense, if proven, could cost the company almost $15m.

While ES&S's AutoMARK version 1.0 received the official thumbs up for use in California in 2005, a substantially different version 1.1 of the machine was never submitted for certification, according to a statement (PDF here) issued Tuesday by the secretary of state. That didn't stop ES&S from selling at least 972 of the version 1.1 machines to five California counties.

Bowen has scheduled a hearing for next month to determine if ES&S mislead elections officials when it sold the updated machines. California law provides for fines as high as $10,000 per violation for the sale of uncertified election gear. It also permits counties to receive a refund. At about about $5,000 per machine, that could total about $5m.

It's safe to say things between ES&S and Bowen were already testy. The evoting machine vendor had already estranged itself from Bowen by blowing off a deadline for submitting source code and other materials for a legally mandated review of voting devices the secretary of state completed last month. ES&S ultimately acquiesced to the demand, but raised "serious concerns" at the motivations of some of the people carrying out the review.

That defiance was plainly missing from a four-sentence statement ES&S issued in response to Bowen's latest accusations. It said the company has "the greatest respect for the federal and state certification processes [and a] long history of complying with those extensive and thorough examinations of voting technology."

It added: "We will certainly work with the State of California as this process moves forward. To be clear, this company has grown over the years by meeting the election-related needs of the jurisdictions we serve with quality technology and quality services."

In some cases, uncertified machines sold by ES&S bore stickers that indicated they had been certified by federal inspectors, according to Nicole Winger, a spokeswoman with the secretary of state's office. Serial numbers on the stickers indicate the seals were designated for the Version 1.0 of the machine.

Officials are now trying to determine if the misapplied stickers was an accident. That's hard for some to fathom: Version 1.1 of the AutoMARK - which also goes by the monikers Phase Two or Model A200 - has a significantly different look than Version 1.0 of the machine - which is also known as Phase One or Model A100. The other possibility, of course, is that misapplied stickers were part of a deliberate effort to circumvent the certification process.

"We are still gathering the facts surrounding this issue," Winger said.

Whatever the case, today's announcement came as a shock to the five counties that learned that the machines will have to be pulled in this November's election because they have yet to be approved for use in California.

"We weren't aware of that when they were delivered to us," said Deanna Brown, deputy registrar of voters for Merced County, which has had about 104 machines available for the past two elections. "I don't know what the next step is going to be." ®

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