Errors Up North
Lawyers sue over Snohomish County?s electronic voting machines
By Cydney Gillis    Real Change News    29 April 2005

In many ways, last year?s doomsayers were right: In the November election, electronic voting machines across the nation added votes, lost votes, broke down and switched votes.
And that?s just what?s documented. But, given that Congress failed to investigate and counties are still buying the equipment, it?s a dead issue, right?
Wrong. Across the country, candidates and voters are petitioning or suing county election officials over voting machines. But none in quite the way that Everett attorney Paul Lehto and his lawyer, Randy Gordon, are going after Snohomish County and its electronic voting vendor, Sequoia Voting Systems Inc., in a lawsuit filed in April.
In what?s being hailed as a simple but brilliant argument that could serve as a national model for legal action, Gordon?s lawsuit, which was filed in King County, argues that it?s unconstitutional to outsource voting to a company that keeps the process secret the way Sequoia and other makers of electronic voting equipment do.
Makers of touch-screen voting machines claim their software is a ?trade secret? to protect. In the contract between Sequoia and Snohomish County, which purchased 1,000 machines for $5 million in 2002, the county auditor even agreed to defend California-based Sequoia from any subpoenas seeking information that, with any other voting method, are a matter of public record under the state Constitution, the Open Meetings Act, and the Public Disclosure Act.
Gordon, a Bellevue tort attorney known for his work in civil rights and labor cases, says that particular paragraph of the Sequoia contract that will go down in infamy as an ?unholy alliance between government and a private corporation.?
?We think there?s a problem with a county entering into a contract with a private company which has the effect of letting the private company conduct elections.?
As a result, Gordon, Lehto and a second plaintiff, John Wells, are asking the court to void Sequoia?s contract and make the company give back Snohomish County?s $5 million.
?A contract between two parties can?t take away the rights of a third party, and that?s what?s happened in this case? and across the nation, says Ellen Theisen, executive director of Port Ludlow-based Voters Unite, a one-year-old voter advocacy organization. ?It?s taken away rights of citizens to an observable election.?
Gordon?s argument is brilliant in its obviousness, Theisen says: Companies that provide electronic voting equipment must comply with the same laws as counties do in conducting an election.
The Washington Legislature has just passed a bill that will require electronic voting machines to print paper receipts starting next year. But that, says Gordon ? who?s just filed to run against Dave Reichert in the 8th Congressional District ? won?t solve the mysteries of what happened on Election Day in Snohomish County.
The case began with Lehto, a Democrat who volunteered with other lawyers for a ?Protect the Vote? campaign. He served as a poll monitor at Everett?s Penny Creek Elementary School, where a ?phantom? or extra vote was added to the original tallies he had seen.
On Nov. 5, he began making public records requests that eventually hit the brick wall of Sequoia?s secrecy. In January, Lehto and fellow researcher Jeffrey Hoffman released a report on what they were able to get (available at www.votersunite.org). In it, the two say that, of the 937 voting machines used, 81 had to be recalibrated on Election Day ? some more than once ? because the touch screens weren?t registering votes correctly.
Nineteen of the machines were taken out of service altogether, and 19 voters wrote complaints of votes being pre-cast or switched. Neither were easy to change, Lehto says ? and the switches were always Democratic to Republican or Libertarian, never the other way around.
County auditor Bob Terwilliger disputes that 81 machines were serviced on Election Day. He also says precinct workers helped voters with any difficulties they had and that no ballots were cast until the voter had a chance to review and OK the final choices.
Gordon and Lehto say that does nothing to prove the votes were recorded or counted accurately ? a concern Terwilliger scoffs at.
?How do you know your votes are counted anywhere in the world?? Terwilliger asks. ?We do multiple testing before, during, and after the election to ensure the machines are operating correctly.?
Still, Lehto argues that the Penny Creek school district ?is supposed to be a generally Democratic area, but Republicans won every single race they could have on the electronic machines? ? to the point, he and Hoffman say in their report, that the vote counts simply don?t make sense.
Lehto cites the governor?s race between Republican Dino Rossi and Democrat Christine Gregoire as a case in point. In a comparison of the electronic and absentee vote totals, he says, the absentee count ? 67.6 percent of the total vote ? had Gregoire leading Rossi by 1,816 votes. For some reason on Election Day, in a county that trends Democratic, the electronic votes ? only 32.4 percent of the total ? ended up giving Rossi a net of 6,441.
Lehto says the odds that one-third of the voters could reverse the paper trend and overcome a full two-thirds of the vote are one in 1,000 trillion ? a statistical impossibility.
He also claims that 13 machines repaired within two weeks of Election Day seemed to boost Rossi?s numbers at the polling places where they were used ? an anomaly, Lehto says, that deserves thorough investigation.
But Terwilliger, he says, is doing nothing ? in part, because auditors like him are already tied by contract to their electronic systems.
Terwilliger says Lehto and Hoffman are wrong about voting trends in Snohomish County. A late Republican surge, he says, did overcome the absentee count. He also says Sequoia?s systems are accurate.
?They can conclude anything they want from those numbers, but it doesn?t make it right,? Terwilliger says. ?That?s the beauty of a lawsuit. You can allege anything you want, but it doesn?t make it true.?