The company’s lawyers argued the lawsuit was frivolous. Judge tosses Ohio voter lawsuit

COLUMBUS, Ohio – A federal judge rejected a lawsuit Tuesday seeking an immediate halt on the equipment used in about 25 Ohio counties after a local activist claimed the software could be contaminated by viruses or human manipulation to flip the outcome of the presidential election.

U.S. District Court Judge Greg Frost said in a 10-page opinion that a voting right activist couldn’t prove “actual and imminent harm” in his lawsuit challenging a contract that Secretary of State Jon Husted entered into with Omaha, Neb.-based Election Systems & Software to use new equipment that helps move vote results from county to state computers.


“Simply put, [the plaintiff] has demonstrated zero likelihood of success based on the evidence presented to this count” for a temporary restraining order, Frost, a George W. Bush appointee, said in a ruling issued about four hours after his court heard oral arguments.

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Columbus State Community College political science professor Robert Fatrakis filed the lawsuit Monday against the state and software company, alleging the new equipment could lead to changes on the voting machine results from non-election board officials or a computer bug.

Ohio state officials and the company’s lawyers argued the lawsuit was frivolous and noted the U.S. Election Assistance Commission had cleared use of the new software to help them move the results from county to state computers.

“That’s all this does,” Richard Coglianese, Ohio’s assistant attorney general, argued in court. “It in fact speeds the processing of the count tonight and it increases accuracy because you don’t have somebody there at 1 in the morning still trying to type numbers in.”

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“As we all know, someone at a keyboard, numbers are very easy to transpose,” Coglianese added. “This software eliminates human errors.”

Fatrakis, a perennial local Green Party political candidate, urged Frost to issue a temporary restraining order on the state requiring it to conduct hand counts on ballots in the Ohio counties that have installed the software. If the judge didn’t act, Fatrakis’ attorney said the prospect of problems in Ohio could cause “earthshaking irrepairable harm” to the integrity of the presidential election system.

Fatrakis’ case relied on the expert testimony of Michael Duniho, a retired National Security Administration analyst who answered questions during the hearing via telephone from Pima, Ariz. Duniho said the new software installed on the Ohio county and state computers could have a virus that undermined the integrity of the vote totals, he testified.

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“We wouldn’t know because the computer is a black box and we don’t know what’s in it and we don’t know how to tell what’s in it,” Duniho said. Hand counts, he added, are “really the only solution to the problem.”

Under cross examination, Duniho acknowledged that he hadn’t reviewed the specific software being used in Ohio.

“There’s nothing here but speculation and guessing by a person who hasn’t even examined the software issue,” Coglianese said.

In his ruling, Frost agreed, calling Duniho’s testimony “entirely speculative.”