E-Vote Firm's Bill Comes Due 

02:00 AM Nov. 11, 2003 PT

SACRAMENTO Citing concerns that Diebold Election Systems installed uncertified software on some electronic voting systems in a California county without the state's knowledge, officials are forcing the company to pay for an audit of all the company's voting machines used in the state in order to win certification for a new model.

The certification is contingent on Diebold paying for an independent audit of all its hardware and software used in 13 other California counties to determine if uncertified components have been installed elsewhere.

Diebold must also cooperate fully with the independent auditors and with the secretary of state's office during its investigation of the certification violation, and attend a voting system panel meeting in mid-December, when the state will review the results of the audit and determine what, if any, sanctions may be appropriate.

Mark Kyle, the panel's chairman and California's undersecretary of state, said the audit "will help identify any potential problems, clear up any misunderstandings, and help bring certainty to something that is a little murky right now."

The conditional certification puts at least four California counties in a bind. Three have already signed contracts with Diebold for TSx machines and have the machines sitting in their warehouses. San Joaquin County, for instance, received 1,600 TSx machines at a cost of $5.7 million. The county is not required to pay Diebold, however, until the machines receive state certification. A fourth county, San Diego, is negotiating with Diebold to purchase over 10,000 TSx units.

The counties say the provisional certification makes it difficult for them to plan for the March election. They say they won't be able to launch voter outreach and worker training if they don't know whether the machines will pass certification in December.

Last week, the voting systems panel surprised Diebold executives and county officials when it halted certification of the TSx system, saying it had received "disconcerting information" about the company violating state election law by installing uncertified software on Alameda County voting systems.

The software, known as GEMS, for General Election Management System, runs on the server which sits in county election centers. GEMS is responsible for tabulating votes sent in from precincts and producing reports from the results.

GEMS is used with Diebold's optical scan system as well as its touch-screen units. And since 12 California counties use the optical scan machines and a thirteenth uses the TS machines also used in Alameda, the state is concerned the problem may exist elsewhere. Los Angeles County also uses a few touch-screen machines for early voting.

Secretary of state spokesman Doug Stone said the state was not worried about the integrity of the October recall election, since the GEMS software had at least undergone testing and been qualified by a federal independent testing authority. He said the software did what it was supposed to do.

Federal election law requires that a vendor submit hardware and software for testing and auditing by an independent testing authority before states do their own certification of a system. According to Penelope Bonsall of the Federal Elections Commission, the software, GEMS version 1.18.18, was federally certified by an independent testing authority in July. But the state had not completed its own testing and certification of the software before Diebold installed it in Alameda.

It's unclear why Diebold installed version 1.18.18 in Alameda, since the county used a different GEMS version in its 2002 election, apparently without glitches.

Diebold spokesman Rob Norcross said, "Vendors don't just decide to install new software onto systems." He said it usually happens as a result of discussing with county officials what kinds of features they want.

"There seems to be a certain amount of confusion regarding the certification and modification process," Norcross said, "and about what kinds of modifications require notification to the state." He said he hoped the investigation would clarify those procedures.

California election law, however, makes it clear that vendors must notify the state before making changes to a system, particularly changes that involve upgrading to a new version of software. Release notes for the 1.18.17 version that were posted on the Web recently with other internal Diebold correspondence, indicate that several critical fixes were made to the software in addition to installing several new features.

Representatives from three counties who attended the panel meeting expressed displeasure at the conditional certification for the new system.

Deborah Hench, registrar of voters for San Joaquin County told the panel, "If we make a decision and you ... postpone again for whatever reason, we're gong to have to choose another system for our March primary. It's critical for us to have a system that we know we're going to use, instead of having to wait."

Hench and other county reps asked the state to separate the investigation and audit of Diebold from certification of its new machines.

Kyle and Miller said the panel considered the problems facing counties, who are required by law to replace outdated voting equipment.

But Miller said, "I'd rather err on the side of inconvenience and delay. It's imperative that we ensure that the process is followed," he said.

Voting companies and election officials who have purchased e-voting machines insist that rigid certification procedures ensure the security of the machines. But critics say the incident in Alameda indicates that the integrity of elections is at risk.

Kim Alexander, founder and president of California Voter Foundation said, "It's so fundamental that the certification process is followed to a T. Not occasionally, not once in a while, but always."

She added that if the margin of results for the recall election had been close, Diebold's actions in Alameda would have called the whole election into question.

"We're all breathing a deep sigh of relief that this wasn't the case," she said.

Frank Kaplan, Diebold's western regional manager, told the panel that Diebold would cooperate with the audit and investigation.

"We have absolutely no problem with those three conditions. ... If we're talking about reviewing everything that's being run reviewing all of the hardware, firmware we're in favor of all of that," he said.

But he added that he hoped other vendors "would step to the plate and have that done with their systems as well."

Kyle said the state would inventory the systems of other vendors and other counties once the Diebold investigation was complete. The state will also begin requiring all counties to maintain and submit logs of the hardware, firmware and software versions they use.

Starting in 2004, the state will also conduct random audits of voting systems to ensure that all software and hardware is certified. And in the future, the state will require CEOs of vendors to affirm under penalty of perjury that the company will not change systems without obtaining written approval from the secretary of state. Failure to do so may result in de-certification and possible criminal charges, Kyle said.

A company found violating election laws or regulations, he said, could be disbarred from certifying new equipment with the state for one year.

Kyle said the secretary of state would be announcing further proposals regarding e-voting in the near future.

It's widely believed by voting machine makers that Secretary of State Shelley, who has previously stated his preference for electronic voting machines to offer a voter-verifiable receipt with their machines, may announce plans within a week or so to require this on voting machines used in the state.

A voter receipt would allow voters to verify that their ballot has been cast correctly before depositing the receipt into a secure ballot box to be used in case of a recount.

To read our complete coverage of e-voting, visit our Machine Politics section.