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Voting machine manufacturers should be investigated by Congress and sued by state and local governments across America for knowingly selling defective products to taxpayers, a growing number of voting rights attorneys and activists are saying. If successful, these advocates say the legal action could lead to multimillion-dollar refunds.
"It is our view at Voter Action that this whole question must be brought to a new level," said John Bonifaz, the group's legal director. "It is akin to the scrutiny that finally was applied to the big tobacco companies, with respect to what they knew and when they knew the effects of the products that they were marketing."
"A month ago, four citizens filed allegations with Arizona's attorney general complaining about these issues," said Jim March, a Black Box Voting board member and voting technology consultant, referring to a legal complaint that manufacturers sold uncertified electronic voting machines to Arizona counties. "If he does not respond in 60 days and does not file a suit, then we can file it."
In 2003, March and Black Box Voting founder Bev Harris filed a similar whistleblower suit in California against Diebold Election Systems that was settled for $2.6 million by the state's attorney general.
The latest round of public-interest advocacy has been sparked by recent reports from independent journalists and state officials documenting flaws in the manufacturing and performance of electronic voting systems. Congressional staffers say the product liability issue may be ripe for inquiry. Meanwhile, legal experts say local governments could have a strong case for seeking refunds.
"A state or county that purchased a machine would have a straightforward claim under the uniform commercial code and contract law if the machines did not perform as warranted so long as the defect was material -- i.e., it substantially impaired the value of the machine -- and was undisclosed to the purchaser," said Michael Gergen, a University of Texas law professor. "I would think a defect that raised serious questions about the accuracy of a vote count would substantially impair the value of a machine."
The new advocacy comes against a backdrop of recent disclosures about the nation's electronic voting systems. This summer, California Secretary of State Debra Bowen completed a major review of security flaws in the various voting systems deployed in her state. That review prompted Bowen to restrict the use of several makes and models in the state's February 2008 presidential primary. Under Bowen's early August directives, thousands of electronic voting machines will be pulled from use.
Then, in mid-August, ex-CBS anchorman Dan Rather, now with HD.net, presented an investigative report on the shoddy overseas manufacture of one widely used electronic voting system, the iVotronic made by Election Systems and Software (ES&S). He went to Manila, in the Philippines, where employees assembling ES&S machines spoke of using defective screens and rebuffed efforts to tell management about quality control problems. As many as 15,000 machines may have had defective screens, Bonifaz said, which correlates with election incident reports of voters saying they selected one candidate, but another choice would register on their electronic ballot. Rather also produced a second report on how the paper used for Florida's punch-card ballots in 2000 -- leading to the notorious "hanging chad" problem -- was known to be of dubious quality by Sequoia Voting Systems before 2000's presidential vote. ES&S said the problems with its machines were found and fixed, while Sequoia disputed Rather's findings.
"Sequoia Voting Systems used 99-lb. tab stock, the proper paper quality, for the 2000 election punch card ballots and has provided Dan Rather Reports with substantial documents that indisputably corroborate the source, delivery, payment, and quality of the paper used in the 2000 election," the firm said, in an August 14, 2007, statement.
But Voter Action's Bonifaz said the HD.net documentary raised new legal issues beyond whether manufacturers sold uncertified machines. "Certified or not, they knew it was defective at the time," he said.
"What the Dan Rather report reveals in "The Trouble with Touch Screens" is that these U.S. voting systems companies have potentially engaged in marketing defective products that have impacted our electoral processes," Bonifaz said. "That's one angle. We are pursuing a call for a full congressional investigation into these companies, whether or not they have committed commercial fraud in the marketing of their products across the country dating back to Florida in 2000, and if so, urging Congress to get to the bottom of this transfer and evidence that it has to the proper authorities for potential prosecution."
Staff attorneys and investigators at the House Committee on Government Oversight and Reform, chaired by Rep. Henry Waxman, D-Calif., and at the House Judiciary Committee, chaired by Rep. John Conyers, D-Mich., said they were receptive to information that could support a congressional investigation but said no such inquiry was currently under way. A spokesman for the House Committee on Administration, which oversees elections, said he has heard no discussions of "product liability as a reasonable next step."
"The second focus is on the states," Bonifaz said. "It is our view as well, that as a result of the Rather report, these counties around the country that have contracted with these companies should open up their own investigation into whether or not they have been subject of fraud, and if so, they ought to seek to recoup the millions of dollars in taxpayer money that has been spent on these products.
"This is a basic principle in our economy. If you sell something that doesn't do what you say it does, you get your money back. And if you knowingly sell something that you knew was defective, you're potentially liable under anti-fraud statutes and under anti-deceptive practices laws in the states. We think it is critical, as a result of this report, that counties open up their own investigations."
Bonifaz also said Rathers' second report -- on whether Sequoia knowingly sold defective paper ballots for Florida in 2000 -- should also be investigated.
"If it's true that that happened, the American people ought to know," he said. "Did this company knowingly market that defective paper, knowing it would result in an election disaster? And did they do it for the motivation that has been ascribed to them in the [Rather] report by at least one former Sequoia employee, who argues that they did it so they could make the switch from paper ballots to electronic voting machines and make much more of a profit."
But getting state and county election officials to sue on behalf of taxpayers may be more easily said than done, even with the newest disclosures from reporters like Rather and secretaries of state like Bowen, according to Black Box Voting's Bev Harris.
"Black Box Voting has been publicly urging jurisdictions to sue vendors," she said. "They could get their money back, but the problem is they have hard deadlines and elections to run, and the system is structured so that they are dependent on the vendors to pull off their elections."
In 2003, when Harris and March sued Diebold in California's whistleblower laws, they found the state's attorney general would only go so far. The pair alleged Diebold was selling voting systems with uncertified software to 17 California counties. That meant the software had not been inspected and approved by federal testing labs. In all, the counties spent $106 million on Diebold voting systems, March said. However, then-Attorney General Bill Lockyer settled the case -- against their wishes -- for $2.6 million without gathering any evidence under oath, although Marsh said the lawsuit could be reopened if Diebold delivered more uncertified voting systems to California counties.
The pair also had another claim alleging Diebold did not tell the federal testing labs that key components of their systems had not been certified, but Marsh said Lockyer did not want to pursue that more complex allegation. "We had Diebold e-mails telling their employees to lie to the federal testing labs," he said.
Since 2004 -- when that suit was settled -- numerous counties and states across the country have had well-documented performance problems with new electronic voting systems, ranging from 18,000 votes vanishing in a Florida U.S. House race in 2006 to ongoing problems in California of vendors using uncertified software. In October, Colorado's Secretary of State Mike Coffman sent a letter to ES&S saying it had failed the state's certification standards, citing "a history of coordination issues with your company."
"Those issues include ... providing incorrect programming of required databases for testing, providing incorrect ballots for testing, failure to provide required documentation of federal testing, and test failures requiring extensive machine servicing," Coffman wrote, saying he would give the firm until Nov. 16 to comply with state law.
In California, this past summer Bowen found ES&S sold almost 1,000 uncertified voting systems in her state and is seeking a $10 million penalty. While Bowen this August decertified various voting systems and recertified their use under stricter conditions, her spokeswoman, Nicole Winger, said she has not asked State Attorney General Jerry Brown to pursue product liability litigation.
Voter Action's Bonifaz was hoping that might soon change.
"The thing that hasn't happened here is no one has been put under oath," he said. "No one has been forced to turn over documents under a court order, or a congressional subpoena or a state attorney general subpoena ... When people swear under oath, they are under a different obligation than when they put out a press release."
And Bonifaz said the stakes were not just monetary -- although those stakes were high.
"If in fact there are viable breach of contract claims, and viable commercial fraud claims, there is no question we are talking about hundreds of millions of dollars, because that is what has been spent on this deeply flawed technology," he said. "But the overall push on this is to reclaim public control of public elections and the dangers associated with outsourcing of our elections to private companies for certain key election functions."
Steven Rosenfeld is a senior fellow at Alternet.org and co-author of What Happened in Ohio: A Documentary Record of Theft and Fraud in the 2004 Election, with Bob Fitrakis and Harvey Wasserman (The New Press, 2006).