ES&S Caught with Uncertified Machines in CA; Decertification May Result

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ES&S Facing Massive Fines, Possible Decertification in CA for Use of Uncertified Modifications to Voting Systems
Illegal Changes to Company's AutoMARK Ballot Marking Device Could Bring $10,000
Fine Per Machine, Full Refund of Purchase Price, Prohibition from Doing Business in State of California...

By Brad Friedman from St. Louis, MO...

ES&S, the country's largest distributor of voting machines, looks to be in a lot of trouble in California. A public notice from the CA Secretary of State's office was posted this morning by Thad Hall of CalTech announcing that the company "has violated" CA Elections Code by modifying "hundreds of units of a version of the AutoMARK ballot marking device" without certification or permission of the Secretary of State...

Election Systems & Software, Inc. (ES&S) has violated Elections Code section 19213 by deploying for use in polling places in several California counties hundreds of units of a version of the AutoMARK ballot marking device that was changed and modified from the version approved by the Secretary of State, without notifying the Secretary of State and without a determination having been made by the Secretary of State that the change or modification does not impair the
accuracy and efficiency of the AutoMARK sufficient to require a reexamination and re-approval of the AutoMARK or the voting system of which it is a part.

The notice goes on to announce a hearing that will be held in Sacramento on September 20th to determine the penalties that ES&S may face, including a $10,000 fine per violation, complete refund for the price of the "compromised voting system, whether or not the voting system has been used in an election," full decertification of the
system, and prohibition from doing business in the state.

The penalties could mirror those brought against the Diebold voting machine company back in 2004 when then-Secretary of State Kevin Shelley discovered the company had secretly installed uncertified updates to their voting systems in several counties just before the primary elections that year. The Diebold systems in question were decertified at the time, and Diebold faced financial penalties.

Here's how the notice from current CA SoS Debra Bowen describes the severe penalties that ES&S may be facing, as shall be determined at the hearing next month, for their illegal modifications under section 19213 of the CA Election Law...

(1) Monetary damages from the offending party or parties, not to exceed ten thousand dollars ($10,000) per violation. For purposes of this subdivision, each voting machine found to contain the unauthorized hardware, software, or firmware shall be considered a separate violation. Damages imposed pursuant to this subdivision shall be apportioned 50 percent to the county in which the violation occurred, if applicable, and 50 percent to the Office of the Secretary of State for purposes of bolstering voting systems security efforts.

(2) Immediate commencement of decertification proceedings for the voting system in question.

(3) Prohibiting the manufacturer or vendor of a voting system from doing any elections-related business in the state for one, two, or three years.

(4) Refund of all moneys paid by a locality for a compromised voting system, whether or not the voting system has been used in an election.

(5) Any other remedial actions authorized by law to prevent unjust enrichment of the offending party.

ES&S failed to participate in Bowen's recent "Top-to-Bottom Review" of all certified voting systems in the state, as they refused to turn over the requisite source code and other materials in time for the study. Now, perhaps, we know why they were unwilling to do so.

As The BRAD BLOG reported several weeks ago, there were also questions about the InkaVote Plus system as distributed by ES&S for use in Los Angeles County as well. At the time, it was reported that the source code ES&S eventually turned over --- some three months too late to be used in the "Top-to-Bottom Review" --- for
that system did not seem to match the version stored in escrow under state law.

The question of vendors using different software than that which has been placed in escrow raises notable concerns about the effectiveness of similar such "escrow laws" for e-voting software around the country, and current being considered by the U.S. Congress.

While the InkaVote system has, for the time being, been decertified [PDF]
for use in the country's most populace county, the issue of whether the source code in escrow was a different version remained "unresolved" as of several weeks ago when we asked Bowen herself about it.

If the earlier reports are verified as accurate, and it's shown that ES&S also used uncertified software in Los Angeles County, the company may face similar penalties for their uncertified use of that system.