E-Voting on Trial in Columbus, Ohio: The Squire Case


Richard Moore

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    Also see below:
    Diebold Weighs Strategy for Voting Unit    €

    E-Voting on Trial in Columbus, Ohio: The Squire Case
    By Victoria Parks and Paddy Shaffer
    The Free Press
    Tuesday 27 February 2007

The Squire v. Geer case is more than just a mere election challenge lawsuit; the
reliability of electronic voting was on trial last week in a small courtroom in 
Franklin County, Ohio. Voting rights activists see the issues before the court 
as going to the heart of democracy itself and whether or not election results 
obtained through the computerized voting machines can be trusted.

Former Franklin County Judge Carol Squire is contesting the victory of her 
opponent, Chris Geer in a challenge that has shed new light on the problems with
e-voting machines.

Franklin County Board of Election's Chief Elections Officer Karen Cotton told 
the court that in an audit of the Squire/Geer race she was unable to balance the
audit books, and could not state why. She said multiple staffers of both parties
spent the previous Saturday, a full two months after the initial audit, 
conducting a hand recount of some books that were called into question in the 
Squire challenge. Cotton conceded that critics claim"our elections are all 
whacked up," referring to accusations about election irregularities. Percy 
Squire, representing his wife, Judge Squire, noted that the public count does 
not balance even after last Saturday's new audit.

In a December 2006, an independent audit conducted by voting rights activists 
trained in signature count audits, found that 86% of 206 Franklin County 
precincts would not balance with certified results. Most of these were off by 
significant margins when comparing poll book data and signatures to machine 

The Franklin County Board of Elections (BOE) has no plausible explanation for 
these discrepancies other than to say that their error rate is better than most 
counties in Ohio. In earlier testimony, Squire questioned the Republican 
Director of the Franklin County Board of Elections, Matt Damshroder, who stated 
that the BOE has no written policy to protect the poll books and has nothing in 
writing that he can show the court. Damshroder further testified that the BOE, 
in preparation for this litigation, did go through the books again and claimed 
they matched his earlier totals. This seems to contradict Cotton's later 
statements made under oath. The county prosecutor objected to Squire's request 
that Damshroder count poll books before the court. Damshroder said he would 
comply with the court ruling that he count poll books.

Vice President of ES&S Software Development Gary Weber's inability to answer a 
simple yes or no question drew audible laughter as Squire restated the same 
question before a stumbling witness and bemused Cuyahoga County magistrate Joel 
Sacco. Squire pressed the witness regarding upgrades of ES&S software being used
in tandem last November. Squire brought into question whether or not the 
vendor's sequential Unity software upgrades as used together, were in fact 
legally certified at the time by the State of Ohio as required by law. Weber 
buckled under questioning on more than one occasion and contradicted himself to 
statements made in earlier deposition, according to attorney Squire.

Electronic elections expert and Harvard Fellow, Dr. Rebecca Mercuri parsed 
questions from assistant prosecutor Nick Soulas, carefully answering his 
technical questions. She concluded there is "significant evidence that there is 
no way to conclude that the vote tally as provided is correct." Mercuri 
reiterated that because of the lack of complete data sets, accurate vote totals 
could not be assumed. Mercuri referred to numerous "egregious disparities" in 
last November's election.

Squire asked "Based on your experience in elections as you testified earlier in 
Bush v Gore and in countless other political contests around the country, can 
you quantify to what extent you view the issues and problems that you 
encountered in this election versus what you've seen elsewhere?" Mercuri 
emphatically replied, that "the issues and problems I've seen in this election 
far outstrip any of the times and issues that I have seen, even those in Bush v 
Gore. In most of these instances there was one problem, or one set of problems. 
But in this, it cuts across the methodology used for the recount, the quantity 
of ballots that were supposed to have been counted, that were not counted, the 
methods by which things were impounded, the lack of certification of the voting 
system...it is so broad, it is beyond any type of experience I have had in it's 
nature of multiple types of things that seem to have blatant disregard of the 
admonitions of the rules and the procedures that were supposed to have been 
prescribed, including those things the county was warned about."

Mercuri also noted that the Board of Elections failed to count 3% of the 
absentee ballots. She testified that they only manually recounted 2072 absentee 
votes instead of the 2700 as legally required.

Records show many machines ran out of poll tape on Election Day. Independent 
auditors found several separated machine poll tape summary reports that were run
more than three weeks after the election, and some were found with torn ends. 
This led auditors to question the accuracy of poll tape machine totals that were
matched with a separated summary report. In a deposition, County Prosecutor 
Patrick Piccininni alluded to the fact that poll tape may have been "loaded 

One Election Observer noted that some voting machines ran out of tape but 
continued recording votes on Election Day. This fact seems to contradict 
testimony from ES&S' account service manager Jerry Amick, who claimed under oath
that the machines are designed to shut down when they run out of poll tape. 
Records indicate, that in fact numerous ES&S voting machines continued to 
operate on Election Day in Franklin County despite running out of poll tape. 
Questions persist that poll tapes may have been installed incorrectly or perhaps
tore inside the machines. In which case, the machine would continue to operate 
despite not producing a paper trail. Amick also squarely laid the responsibility
with the Secretary of State for making sure successive upgrades of the company's
software are, in fact, certified for use in Ohio's elections.

In recent months successful hacking demonstrations by Princeton, Johns Hopkins 
University, and other independent software experts, have put electronic voting 
under public scrutiny and have raised eyebrows among public officials. Consensus
among the experts has not been good for the vendors. Incidents as the electronic
voting debacle in Florida's 13th district - where eighteen thousand votes were 
lost in November's midterms - have further chilled voter confidence in 
electronic voting. In Montgomery County, 30,000 undervotes were recorded in the 
Ohio U.S. Senate race between Sherrod Brown and Mike Dewine.

The implementation of the Help America Vote Act (HAVA) has proliferated this new
voting technology into America's voting booths, creating new challenges to a 
system already in doubt, and leaving a dissatisfied and disenfranchised 
electorate feeling duped. HAVA is a bill pushed in 2002 by convicted former Ohio
congressman Bob Ney with the assistance of convicted lobbyist Jack Abramoff. 
Now, the effects of HAVA are being tested in this case.

The ruling in this case could add to the ES&S woes as HAVA is implemented 
nationwide. ES&S has ties to Republican Senator Chuck Hagel. Hagel is a 2008 
presidential candidate and a past owner of a predecessor voting machine company 
to ES&S. In recent months, the embattled electronic voting vendor has lost 
product liability lawsuits in other states as in New Mexico, Indiana and 
Illinois, a fact that looms large over this courtroom.

Electronic voting seems more questionable than ever as vendors pass on the 
substantial costs of software service contracts to taxpayers in already 
financially cash-strapped counties. Electronic voting also appears more 
vulnerable than ever at this time of slumping voter confidence. In the final 
analysis, the integrity of electronic voting continues to dog this industry - a 
private industry that holds so much power over a democratic process meant to be 
fully transparent and accountable to the public. The trial reconvenes Wednesday,
February 28, to hear final arguments. Afterwards, Sacco's findings go before a 
three judge Appeals Court panel which will decide to accept or reject his 
recommendations. All Franklin County judges have been removed from the case to 
avoid the appearance of impropriety.

    Go to Original
    Diebold Weighs Strategy for Voting Unit
    By M.R. Kropko
    The Associated Press
    Sunday 04 March 2007

Cleveland - Diebold Inc. saw great potential in the modernization of elections 
equipment. Now, analysts say, executives may be angling for ways to dump its 
e-voting subsidiary that's widely seen as tarnishing the company's reputation.

Though Diebold Election Systems - the company's smallest business segment - has 
shown growth and profit, it's faced persistent criticism over the reliability 
and security of its touch-screen voting machines. About 150,000 of its 
touch-screen or optical scan systems were used in 34 states in last November's 

The criticism is particularly jarring for a nearly 150-year-old company whose 
primary focus has long been safes and automated teller machines.

"This is a company that has built relationships with banks every day of every 
year. It pains them greatly to see their brand tarnished by a marginal operating
unit," said Gil Luria, an investment analyst who monitors Diebold for Wedbush 
Morgan Securities Inc.

In the calm after the November midterm elections, Tom Swidarski, Diebold's chief
executive officer, told analysts in a conference call that the company plans to 
announce its long-term strategy for the elections unit early this year.

Swidarski declined an interview request to shed more light on the voting 
segment's future.

But in an annual report filed last week with the Securities and Exchange 
Commission, Diebold's discussion of its election systems business pointed out 
various ongoing concerns. Diebold acknowledged that complaints about its voting 
products and services have hurt relations with government election officials.

Diebold indicated it still is "vulnerable to these types of challenges because 
the electronic elections systems industry is emerging." The report also 
mentioned inconsistency in the way state and local governments are adapting to 
federal requirements for upgrades in voting technology.

Further changes in the voting laws could further hurt business, the filing said.

Diebold spokesman Mike Jacobsen said that whenever Diebold evaluates one of its 
businesses, it looks for growth, profitability and characteristics that make it 
a long-term strategic fit.

Jacobsen would not say when the announcement about the subsidiary's future may 

"I imagine at this point it's a question of whether have they found a private 
equity buyer yet or are they about to announce they are going to look for one," 
Luria said. He did not speculate on who that may be.

    Diebold headaches have abounded.

Some of its voting machines have been criticized for lacking a voter-verified 
paper trail for post-election audits. Last summer, the Open Voting Foundation 
issued a report alleging that Diebold touch-screen functions can be changed with
the flip of an internal switch. Activists have found source code online. And 
there have also been numerous lawsuits and leaked internal memos.

FTN Midwest Securities analyst Kartik Mehta wonders if a business that has been 
a lightning rod for criticism is worth it. He said Diebold leaders need to 
decide "if that negative publicity is hurting them in selling products to 
financial institutions, security products to government or any of their other 

North Canton, Ohio-based Diebold jumped into e-voting in 2002, when it acquired 
Global Election Systems. It had some prior experiences with electronic voting 
through its Procomp business in Brazil.

The elections business was good for 8 percent of Diebold revenue and about 12 
percent of profit last year, but some of that is from Diebold's voting and 
lottery contracts in Brazil.

By comparison, the ATM segment produced about 65 percent of the company's 
revenue and 63 percent of profit in 2006. Safes have evolved into Diebold's 
second biggest segment, now called "security solutions." It makes various 
devices and systems for business and government security. Last year it gave 
Diebold about 27 percent of its revenue and 25 percent of its profit.

If profit is the key measure for Diebold, the voting business would seem to be a
good fit. But for this segment, a 2006 gross profit (before taxes, costs and 
expenses) on products and service of about $83.5 million isn't the whole story.

"I've been surprised that Diebold has stayed in the voting business for this 
long, considering the size of the company and the other sources of revenue," 
said Avi Rubin, a computer scientist at Johns Hopkins University and a frequent 
foe of Diebold voting systems' programming. Rubin is director of ACCURATE, an 
e-voting research organization funded by the National Science Foundation.

Diebold has always defended its voting machines and its own intentions, even 
after its former chairman and chief executive, Wally O'Dell, sought with little 
success to convince critics his strong ties with Republican politics as a 
fundraiser for George W. Bush were not the motive for the company's involvement 
in elections.

O'Dell resigned in 2005 and was replaced by Swidarski, who had been the 
company's president and chief operating officer. His main focus has been on 
expanding international business for ATMs, a less public business.

Critics remained. About the time of the November elections, HBO aired a scathing
documentary entitled "Hacking Democracy" that again raised questions about the 
security of Diebold machines.

    Might Diebold choose to keep the voting business and grow it?

    "It's a possibility, but I'd assign it a very low probability," Luria said.

Voting machine makers such as Diebold; Election Systems & Software, of Omaha, 
Neb.; Sequoia Voting Systems, of Oakland, Calif., and Hart InterCivic, of 
Austin, Texas have had the federal Help America Vote Act of 2002 as a sales 
catalyst. HAVA, with $3.9 billion of funding, urged the nation to move past 
punch card voting and hanging chads that delayed the conclusion of the 2000 
presidential election.

ES&S, Sequoia and Hart InterCivic declined comment on a possible Diebold 
Election Systems sale.

Douglas E. Rodgers, managing partner and chief executive officer of 
Washington-based investment banking firm FOCUS Enterprises Inc., said he has 
worked with Diebold executives on recent acquisitions. He could not comment on 
Diebold's intentions for voting systems.

Kimball Brace, who closely tracks voting system vendors as president of 
Washington-based Election Data Services Inc., said there is uncertainty now in 
the elections market, a result of possible legislation setting new requirements 
with no promise there will be additional funding.

    He couldn't say what Diebold will do.

"If I were in these guy's shoes, I'd be looking close and hard at what I'm doing
in this marketplace," Brace said. "But given the uncertainty, who would buy it?"

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