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Private Parties File Lawsuit Against Diebold Systems

Friday July 16, 2004

As Alameda county races to meet new re-certification standards for its touchscreen voting machines, critics say they are still not satisfied with the machines’ security and are trying to give the county one last opt-out option before the November election. 

In a complaint unsealed last week, Bev Harris, the Washington State-based founder of, and California resident Jim March—represented by their Berkeley attorney Lowell Finley—alleged that touchscreen voting machine maker Diebold Systems, Inc, violated the False Claims Act on two counts: first, by selling the county machines that Diebold knew were insecure and second, by providing the county with uncertified software. 

If successful, the case could force Diebold to reimburse Alameda County up to three times what the county paid for the machines, providing the county with ample money to invest in a different and more secure system, re-train poll workers, and meet any other additional costs. 

Diebold spokesman David Bear said the company had not been served with the lawsuit and couldn’t comment until they had. 

Even with new security upgrades, said Harris, the touchscreens can—and, she asserts, probably will—repeat the “meltdown” experienced in Alameda County and across the state in the primaries last March. In San Diego County during that election, 573 of 1,038 polling places opened late because of problems with Diebold machines. In Alameda County, faulty Diebold equipment also caused major delays in voting. 

Harris and March, while ultimately trying to hold Diebold responsible for what they call faulty equipment, said the suit can and should act as a stopgap in the upcoming election and allow counties an easy out. 

Instead of Diebold touch screens, they say the county should rely on other vote recording and counting systems such as paper ballots run through optical scan machines, or even the old-fashioned hand count. 

Currently, however, Alameda County has declined to sign onto the case. The plaintiffs are also waiting for word from officials of the State of California, which could also sign on because the state reimbursed the county for a majority of the money spent to buy the machines. 

Contrary to what the plaintiffs allege, says Alameda County Registrar of Voters Brad Clark, the lawsuit should not affect the upcoming election. With November just a few months away, Alameda county’s options have been severely narrowed, limited to a choice of Diebold voting machines of one type or another. Even if the county won its money back from the company, Clark said, there would not be enough time to invest that money in another system. 

The deadline to sign a contract with another touchscreen vendor passed this summer, according to Clark. At this point, the county is focusing almost all of its attention on securing firmware and software certification for the Diebold machines that should satisfy the mandates set forth by the Secretary of State. 

“I don’t know if any vendor at this late date would be able to serve us,” said Clark. “I don’t anticipate that happening.” 

And if the county is not able to re-certify their machines the only other option, according to Clark, are Diebold optical scan machines. Currently the county has a couple of those on hand, but would have to rush to buy enough to handle the vote. 

According to Harris, March and their attorney Finley, however, the county has had the option to opt-out of the Diebold contract for months because county election officials knew about the lawsuit before it became public. The complaint was originally filed last November and was supposed to be under seal until the state of California makes its decision about whether to sign on. According to Finley, Alameda County Counsel Richard Winnie has attended closed hearings concerning the case. The case became public before the state decided because Harris and March won a special decision from the court that allowed them to unseal it. 

“[Clark] may have decided in his own mind that the county is going to use Diebold, but the fact is as of today the secretary of state has decertified that equipment and has not made a decision about whether they are going to re-certify,” said Finley. “Clark has known about this litigation in his own mind before this year and could have made a decision then to take advantage of what we believe is a very strong claim.” 

Finley explained that this action by the Alameda County Registrar of Voters would have allowed the county to “free itself from the grip of a company that has a very checkered history and switch to an entirely different system. To date they haven’t done that, but it doesn’t mean that it’s too late.” 

About the county’s claim that it is too late to turn back, Harris said “That’s just so stupid. If they need to they can print paper ballots and hand count the whole dang thing.” 

When questioned, Alameda County Counsel Winnie said the county has not closed out all their options. “We’re not proceeding completely dependent on this electronic equipment,” he said. “The time constraints are so limited and the importance is so great that we can’t afford to simply accept promises or rely on one system. We’re going to reach a conclusion in the next three or four weeks really committing ourselves to how we are going to conduct the election. We are pretty far down the road right now, but that doesn’t mean we can’t switch.” 

But when asked about whether Clark’s characterization of the county’s options was correct, Winnie said it was. 

Both Harris and March say Clark’s actions lead them to believe that he is pushing for a touch screen system. 

“Brad’s position seems to be that he wants to stick with Diebold. Why? I couldn’t tell you,” said March. 

When asked about the possibility of recounting paper ballots by hand as an alternative option, Clark said that could be an option for Alameda County “if you didn’t want election results until next summer.” He also said a hand re-count is the most inaccurate way to count, especially when there are multiple items on the ballot. 

Harris, in her critique of Clark’s apparent support for touchscreens, downplayed Clark’s reasons for dismissing a hand recount, saying the option is out because the county “didn’t organize in time and because [people] want to use the machines by hook or by crook.” 

According to James Hale, a media relations officer for Vote Canada, which runs Canada’s national elections, Canada was able to count 13,489,559 votes by hand during the last election on June 28. The votes, cast at 58,000 polling booths, located at 18,000 polling stations in 308 electoral districts, were counted in half an hour. Unlike the upcoming Alameda county ballot, however, which will have tens of items, Canada’s only had one. 

After review, the Canada performed re-counts in three different areas, affecting about a dozen of the 13 plus million votes, according to Hale.