Secretary of State Debra Bowen is taking it to unscrupulous voting machine vendors, after having completed her investigation into the illegal sale of thousands of machines that were not certified for use in California.  ES&S would be on the hook for millions if this suit is successful.  Chron:

“ES&S ignored the law over and over and over again, and it got caught,” Bowen said in a statement after filing suit against the company. “I am not going to stand on the sidelines and watch a voting system vendor come into the state, ignore the laws and make millions of dollars from California’s taxpayers in the process.”

Bowen’s decision could be a windfall for the affected counties. In the suit, the secretary of state is seeking a $10,000 penalty for each of the uncertified machines sold in the state, with half that fine intended to go to the counties that bought them.

ES&S also would have to reimburse the counties for the full cost of the machines, but the counties would be able to keep the AutoMARKs, which are now slated to receive full state certification in early December.

The reimbursement rule was added to the state election code in 2004 in an effort to boost the penalties against companies that ignore the state’s certification rules, Bowen said.

Bowen is simply enforcing existing laws.  I am sure the counties would not mind a few extra million dollars.

“I was surprised to see this happen,” Bowen said in a telephone conference call Monday afternoon. “I hope this will be the last time I have to use (the new penalties).”

The threat of the penalties was clearly not enough to dissuade the voting machine companies from selling non-certified machines.  Perhaps the actual paying of the fines will ensure they follow California law.

At a hearing last month in Sacramento, company officials argued that because only minor changes had been made to the original AutoMARK, there was no need to get the upgraded version certified.

By reporting the changes last year to an independent federal testing authority, which agreed that only minimal modifications had been made, the company met its state reporting requirements, Fields said.

But Bowen said there is no ambiguity in the law.

“Changes … must be submitted to the secretary of state before a voting machine can be sold or used in California,” she said. “California law doesn’t ask the manufacturer to decide whether the changes are small or large or medium-size.”

California only learned about the changes when an ES&S representative inadvertently mentioned the new version of the AutoMARK in a telephone conference call with state election officials. The company never even mentioned to the state or the five counties that changes had been made to the machines that were shipped, Bowen said.

The United States has a federal system of government.  Companies do not get to pick and choose which laws they have to follow.  The actions of ES&S were deceitful and illegal.  And now there is a strong tenacious Secretary of State going after them.  Go Debra Go!

(now available in orange)
Brian has the press release, but WIRED brings us a few more intriguing details about the machines ES&S sold a group of counties before they were certified.  First of all, there were 1,000 machines sold to San Francisco, Marin, Solano, Merced and Marin.  The law allows the state to fine the company up to $10,000 per uncertified system ($9.72m) and refund the counties all or part of the purchase price, which would amount to about $5 million.  Plus, the state could ban ES&S from doing any business with the state.  That could effect up to 14 more counties, including LA County.

It turns out that ES&S may have been faking certification stickers on the back of the machines, the image is from the WIRED article.

The AutoMark A100 was certified for use in California in August 2005. However, in 2006, ES&S, by its own admission, sold 1,000 units of its subsequent AutoMark model — the A200 version — to five CA counties months before the system passed federal qualification testing in August 2006. Voting machines generally undergo two stages of testing and certification, first by independent testing labs overseen by the federal government and then by the states themselves. But according to secretary of state spokeswoman Nicole Winger ES&S still has not submitted the A200 system to the state to examine and certify.

Winger also says that the A200 machines had stickers on them (see photo below) that identified them as having passed federal qualification testing, when they hadn’t yet passed that testing. Winger says that the qualification stickers that were placed on the A200 machines were the stickers that are supposed to apply only to A100 machines. Winger says it’s possible that the stickers were applied in error. But if ES&S deliberately placed the stickers on the machines it could suggest a deliberate attempt on the part of the company to deceive California election officials.

“We are in the early stages of learning about the facts,” Winger told me. “We don’t know who would have applied the A100 stickers to uncertified equipment.”

Winger said the differences between the A100 and A200 systems are significant and easily identified just through visual inspection (see the photos above at right). The size of the motherboard and the types of wiring inside the machines are just two examples of the differences.

Secretary of State Debra Bowen will be addressing this and other questions at the hearing on September 20th.  I feel confident in saying that if her predecessor had been in office this would have never been uncovered.  Indeed, this happened under his watch.