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E-voting vendor sued over machine change

Allegedly not certified

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California's chief elections official has sued a popular e-voting device vendor for almost $15m in a suit that claims Election Systems & Software (ES&S) repeatedly violated state laws requiring it to receive certification for a ballot-marking device before selling it to county voting officials.

The suit (PDF here), filed by California Secretary of State Debra Bowen, accuses ES&S of selling 972 AutoMark A200 devices to five California counties even though the machines, which make it easier for blind people to vote, had not undergone inspection - as required by law. A previous version, the AutoMark A100, received official state approval in 2005 under a previous secretary of state, but California law mandates that certified devices can't be modified unless the secretary of state has determined the changes don't impair their accuracy.

"California law is very clear on this issue," Bowen said in a statement (PDF here). "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, filed in state court in San Francisco, seeks $9.72m in penalties and $5m in compensation. It is the latest chapter to document what is emerging as a testy relationship between ES&S and Bowen's office. This summer, Bowen publicly dressed down ES&S officials after they failed to submit source code as mandated by California law authorizing her to inspect the security of state voting systems. The Omaha, Nebraska-based company eventually succumbed to the demands, but the delay prevented state consultants from including the code in a top-to-bottom review of election systems certified by the state.

ES&S denies violating any laws. In a statement, the company said the changes to the AutoMark device "were extremely minor and had nothing to do with the operation or functionality of the voter assist terminal." It also said the AutoMark A200 has received approval by federal elections officials. California's "established practice" for years has not required recertification under such circumstances, the statement argued.

"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," the statement stated. "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."

ES&S has argued that the AutoMark A200, which is manufactured by a company called AutoMark Technical Systems, contained modifications that "generally consisted of" the relocation of two circuit boards, the redesign of cables and "various changes" in mounting brackets designed to make maintenance easier. The updated machines contain the "exact same hardware configuration and firmware version," ES&S argued here.

Bowen's office sees the matter differently. According to the lawsuit, the A200 devices bore stickers indicating they had been certified by federal inspectors even though the devices "did not have federal certification when defendant delivered them to California elections officials for use in elections in 2006." Based on those assurances, some counties used the machines in June 2006 elections. The devices weren't approved by federal authorities until August 31 of that year, the suit alleges.

The suit also takes issue with the contention of ES&S officials that the updated device makes only minor changes. The A200 uses version 1.1.2258 of the system firmware, while the earlier machine uses version 1.0. ®

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