Speaking of the DEVILS
iebold May Face Criminal Charges
By Kim Zetter
Wired
Friday 23 April 2004
SACRAMENTO, California - After harshly chastising Diebold Election Systems for what it considered
deceptive business practices, a California voting systems panel voted unanimously Thursday to
recommend that the secretary of state decertify an electronic touch-screen voting machine
manufactured by the company, making it likely that four California counties that recently purchased the
machines will have to find other voting solutions for the November presidential election.
The panel also voted to send the findings of its recent Diebold investigation to the state's attorney
general for possible criminal and civil charges against the firm for violating state election laws.
Following a contentious six-hour hearing during which the Voting Systems and Procedures Panel
grilled Diebold president Bob Urosevich about his company's business practices, the panel voted to
recommend decertifying the Diebold AccuVote-TSx machine, which was used for the first time in
California during the March primary in Kern, San Joaquin, Solano and San Diego counties.
The decision was based partly on the fact that a peripheral device for the machine performed poorly in
the March primary and partly on the fact that Diebold had marketed and sold the TSx to counties
before it was certified by the state. The panel also said Diebold misled the state about issues
pertaining to the federal certification of the system.
The state had conditionally certified the TSx in December so that counties that had already
purchased the machines could use them in the March primary. But the company installed a
last-minute peripheral device in several California counties that was still being de-bugged days before
the March primary. The device, a smart card encoder that programmed voting cards to be used with the
TSx, malfunctioned and produced major problems in San Diego and Alameda counties the morning of
the primary. Several hundred precincts failed to open on time, thus disenfranchising voters who were
turned away from the polls.
The decertification recommendation goes to California Secretary of State Kevin Shelley, who has until
April 30 to decide how to act on it, a date that falls within the six-month advance notice that the state
must give counties to take machines out of commission before an election.
The panel also recommended that Shelley ask the state attorney general to examine the possibility of
bringing civil and criminal charges against Diebold for violating California election codes, which state
that vendors cannot change software without notifying the secretary of state's office. The codes also
say that no vendor can install uncertified software on voting systems.
Last November, the state discovered that Diebold had installed uncertified software on its voting
machines in 17 counties without notifying state officials or, in some cases, even county officials who
were affected by the changes.
Diebold voting system developer Tab Iredale, who answered the panel's technical questions about the
voting system during the hearing, said he was not surprised by the decertification recommendation.
"We knew it was a possibility," he said. But the recommendation for criminal charges was unexpected.
"This doesn't solve the problems," Iredal said. "It just sets a tone of confrontation at a time when we
should be working together to address issues with the certification process."
Diebold said it was not entirely responsible for the installation of uncertified software and systems in
California because changes in certification practices at the federal level had caused delays with
certification and that state rules about certification were confusing.
But state undersecretary and panel chairman Mark Kyle said the company's excuses rang "hollow"
and that the state's rules were extremely clear. He expressed anger that Diebold had been deceptive
about advance knowledge of problems with its smart card encoder before the March primary. He also
accused the company of "switch-and-bait" tactics in trying to pass off uncertified software as certified
software and suggested that the company might have colluded with the federal testing lab, Wyle
Laboratories, to get its system through the California investigation.
Panel member Marc Carrel, assistant secretary of state for policy and planning, said that Diebold's
"spin" on the issues left him dizzy. He said that Diebold's repeated apologies were "belied by their
actions and their statements."
"I keep hearing apologies. I keep hearing misleading statements. I feel like Bill Murray in Groundhog
Day -- it keeps repeating and repeating and repeating," he said. "I'm disgusted by the actions of this
company."
Carrel said the "bait-and-switch" on software had resulted in the disenfranchisement of voters in
various counties and resulted "in a reduction in the confidence not only in (touch-screen machines) but
in voting in general. And that's very disturbing to me."
Carrel and the panel expressed frustration that the secretary of state's office did not currently have
authority to levy sanctions and fines against voting companies for violating election laws. They urged
legislators to back state Senate Bill 1376, which would provide the secretary of state's office with the
power to levy such punishment in the future.
If Shelley acts on the panel's recommendation to decertify, which he is expected to do, four counties
will likely have to replace 15,000 TSx machines with optical scan machines before November.
The decertification would not affect Diebold's optical scan machines or an older version of its
touch-screen machine, called the AccuVote-TS, which the company no longer sells.
Deborah Hench, San Joaquin County's registrar of voters, expressed surprise at the panel's move.
She said she had no idea what her county would do if instructed not to use its 1,600 TSx machines in
the November election.
For the March election, the county had borrowed some optical-scan machines from other counties
and from Diebold. If the secretary of state agrees to decertify the TSx, the four counties will have to
scramble to find optical-scan machines, and there might not be enough to go around, Hench said,
noting that the counties would not want to switch to machines manufactured by another vendor at such
a late date.
Diebold spokesman David Bear said the company intends to resubmit the TSx machines for state
certification before the November election. Although a spokesman for the secretary of state said
Diebold will not be barred from resubmitting for certification, members of the voting-systems panel had
said they no longer wanted to certify voting systems under the pressure of an impending election.
Carrel expressed doubts that the company could fix problems with the machine before November. "I
say good luck. Because if it's taken them a year and a half to fix the problems and they haven't fixed
them, who knows how long it will take?" he said.
In light of the panel's harsh criticism of Diebold, some audience members expressed surprise that the
panel didn't recommend decertifying all Diebold systems and bar the company from selling to the state.
The panel suggested in December that it might consider barring Diebold from California for a year.
Carrel said the panel wanted to focus first on the TSx because it had a defection that caused
problems in the March primary and the company had failed to meet the conditional certification
requirements that the state had set in December.
Carrel also said that no one should consider the panel's move a mere slap on the wrist for Diebold.
"If we're not allowing (the sale of) their newest voting system -- which is what they're banking on
(because) they don't make the TS anymore -- it's a freeze of their business in California, essentially,"
he said.
Carrel said the panel could still decertify the older TS model as well, since the panel plans to rule
next week on whether to recommend decertifying all touch-screen voting machines in the state.
In March, two state legislators called on Shelley to decertify all touch-screen voting machines in the
state before the November presidential election and keep them decertified until the state can obtain
machines that produce a voter-verified paper audit trail.
Carrel said the panel could also single out Diebold and just decertify all of its touch-screen machines.
As for barring the company from selling systems to the state, Carrel said that decertification of the TSx
would cut substantially into any sales the company would have in California, since the TSx is the main
model the company markets now.
Carrel called the decertification "a huge embarrassment" for the company, which will have to defend
its actions in California any time it tries to sell systems to other states and counties in the future.
"Four of their (California) clients have to deal with finding another system because of their mistakes.
That's major," Carrel said. "If we had done nothing, they would have said, 'See, we're vindicated.' They
clearly weren't vindicated."
Diebold's CEO said at a shareholders meeting yesterday, however, that what happened in California
won't hurt the company.
Chairman and CEO Walden W. O'Dell told the Associated Press that "whatever goes on in California
is separate from what goes on in other states. Each state will make their own decisions."
After the news in California, Diebold's shares on the New York Stock Exchange fell $1.10 to close at
$48.95. |
