Citizen concerns about untested software have multiplied since the Columbus Free Press broke the news that Ohio Secretary of State Jon Husted’s office installed uncertified and untested software on the central vote tabulation machines in up to 39 counties in the state.

Memos circulated amongst senior staff at the Ohio Secretary of States’ indicate that they consider this skirting of Ohio Election Law is justified because the software does not directly tabulate or communicate actual votes. Their statements to the mainstream press reveal a different set of facts about the software and a different justification.

In statements to the theGrio, NBC’s political blog, SOS spokesman Matt McClellan said the software is to “assist counties and to help them simplify the process by which they report the results to our system.” and that it was deemed experimental because “It is a pilot project that we’re doing with about 25 counties or so. So it’s not statewide, but it is a pilot project we’re trying.”

Ohio election law does not allow software or hardware to be used in election until it has been tested or certified by the Ohio Board of Voting Machine Examiners unless it is experimental. The confidential internal memos indicate that this software was never tested because of claims that it is not involved with the tabulation or communication of votes. Reporting election results from county tabulation systems to the secretary of state’s office, which is the purpose of this software as explained by McClellan, is in fact communication of votes.

The potential federal illegality of this software has been hidden from public scrutiny by the Secretary of State’s Election Counsel Brandi Seske. In a September 29 memo, Seske wrote, “Please see the attached letter from Matt Masterson regarding de minimis changes – one submitted by ES&S and one by Dominion Voting Systems. He has reviewed and approved the changes.” “De minimis” is a legal term for minute. Federal election regulations have a very specific definition of de minimis. This definition was clarified to all state level agencies in a federal Elections Assistance Commission memo dated February 8, 2012 entitled “Software and Firmware modifications are not de minimis changes.”

Ohio election law provides for experimental equipment only in a limited number of precincts per county. Installing uncertified and untested software on central tabulation equipment essential affects every single precinct in a given county. Nowhere in the memos circulated by Seske, nor in the contract, is the software called “experimental.”

The Secretary of State’s office has given one questionable justification to its own Board of Voting Machine Examiners and another to the public.

The contract provides for testing, performed jointly by the counties and the vendor within 30 days of the software being installed. This testing was required to be independent and overseen by the Board of Voting Machine Examiners, as required by Ohio law.

McClellan told theGrio “I’m not sure the exact timeline of that [the installation and testing], but I know we’ve been working with the counties for the past couple of months on getting these in place, testing them to make sure they work properly, and working with the vendors as well.”

This uncertified and untested software could easily malfunction and corrupt votes on the central tabulation machines, thus destroying any electronic record of the actual votes by citizens. This “experimental” software, as outlined in the contract, has no security protocols. A “man in the middle” attack, like the one that stole the Ohio election for George W. Bush in 2004, could be directly facilitated by this untested and uncertified software installation.

The Secretary of State’s office has used every legal contortion to avoid the use of science and the possibility of public scrutiny of this possibly illegal software. The Free Press will continue to report on this story as it develops.