Calif. Sues Voting Machine Maker For $15M

The ES&S AutoMark voting machine, from Election Systems & Software
Election Systems & Software
Secretary of State Debra Bowen sued a major voting machine company Monday, accusing Election Systems & Software of selling unauthorized machines to San Francisco and four counties.

The lawsuit seeks nearly $15 million in penalties and reimbursements. Bowen contends that ES&S sold 972 of its AutoMark A200 voting machines to San Francisco and Colusa, Marin, Merced and Solano counties in 2006 even though the state had not tested and certified the machines.

"ES&S ignored the law over and over again and it got caught," Bowen said in a statement. "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 taxpayers in the process."

The suit was filed for Bowen by the attorney general's office in San Francisco Superior Court. It seeks $9.7 million in penalties and asks the court to order ES&S to reimburse San Francisco and the four counties for the nearly $5 million cost of the machines.

Some of the AutoMark A200s apparently were used in the November 2006 election along with a previous version of the machines, Bowen said. Local election officials reported some problems with the AutoMarks, but Bowen said her office had no way of knowing if the problems were with the new machines or the older ones.

Omaha-based ES&S, which bills itself as the "world's largest and most experienced provider of total election management solutions," said the AutoMark A200 included only "minor hardware modifications" from an earlier model that was certified by the state.

The company said it followed an "established practice" in which California relied on federal testing to decide if it would allow minor modifications to existing voting systems without new state certification.

Ken Fields, an ES&S spokesman, said the AutoMark A200 modifications were submitted to federal labs in late 2005, when former Secretary of State Bruce McPherson was in office.

Under established protocol at that time, the state allowed equipment to be modified if the federal labs determined the changes didn't alter the "fit, form or function" of the equipment, he said.

The changes were intended to make the AutoMarks easier to service and manufacture, Fields said.

"The penalties sought by the secretary of state bear no relationship to the claimed violations, particularly given that the claimed violations resulted from ES&S adhering to the state's established practice," the company said in a statement.

But Bowen said it wasn't up to ES&S to determine if the hardware modifications were minor and that the AutoMark A200s had to be submitted to her office as well as to federal labs for testing and certification.

"California law does not ask the manufacturer if the changes to a voting system are big or small or medium size," she said in a conference call with reporters. "That's a matter for California's chief elections officer to decide."

A spokeswoman for Bowen, Nicole Winger, said the independent labs used by the federal government "clearly do not test these systems to the depth and breadth that California expects and the standards that California has."

The AutoMarks are designed to be used by voters with disabilities to mark ballots that are then read by scanners.

Bowen said the secretary of state's office became aware of the sale of the AutoMark A200s to San Francisco and the four counties when an ES&S employee accidentally mentioned the changes in the system during a conference call in July with members of the secretary of state's staff.

But Fields said examiners for the secretary of state's office saw the AutoMark A200 in 2006 as part of testing and certification of voting equipment used by San Francisco.

"I don't know if (the examiner) marked it A200, but that was the equipment that was there," Fields said.

Winger said local election officials were unaware they were getting modified equipment when they bought the AutoMark A200s. State officials also didn't know of any changes until the July conference call, she added.

Bowen said her office is now testing the AutoMark A200s to make sure they work as they should. She hopes to have results by early December.

If her lawsuit is successful, ES&S could be required to reimburse the five local governments for the AutoMark A200s, even if Bowen's office subsequently certifies the machines and they resume using the devices.