Using mainly federal grant money disbursed under the Help America Vote Act (HAVA), Alabama counties have purchased voting equipment and software that doesn’t comply with Alabama state law. And by “doesn’t comply,” we mean this: the equipment can’t tally votes correctly in a presidential primary election.

What’s more: election officials knew about the problem and warned rather obliquely about it the day before the primary:

In fact, WHNT News 19 has learned the delegate vote may not even follow party rules. For example, the ballot asks you to only vote for delegates for the candidate you’re supporting, but officials tell us the voting machines aren’t sophisticated enough to throw out votes that don’t follow that rule.

That’s true up to a point: many counties were using a new version of Election Systems & Services (ES&S) optical scan machines. Previously, many counties used the Model 100. In Madison County, this year was the first year that we voted using a DS200. The main visual difference between the two models is that the DS200 has a touch screen. The main vote counting difference is that the DS200 can’t accurately count primary delegate votes.

See what type voting equipment your county uses.

It’s not a bug: the software simply doesn’t support that feature. The compliance testing was done, interestingly enough, by Wyle Laboratories in Huntsville, AL (it’s now known as NTS). Their testing compliance document notes the deficiency:

Look at section 1.5.7 on page 23. As stated in the DS200 System Functionality Description, the Unity 3.4.0.0 System does not include

functions for the following:

 Rank Choice Voting

 Cumulative Voting

 Primary Presidential Delegation Nominations

That problem wasn’t corrected in version 3.4.1 of the software, as the certification letter from the US Election Assistance Commission (EAC) notes on page 13.

The EAC is a federal agency created to manage and monitor the quality of voting systems, accredit voting system test labs, create voter guides, etc. It’s a one-stop shop for voting information and equipment/software certification. In many states, state law forbids using any non-EAC certified voting equipment.

The contractor, ES&S, obviously knows that this is a issue, because the company submitted version 5.0 of its “Unity” software in 2010. Wyle was the testing provider, and the test documents went through multiple modifications. Each one however, included this requirement (noted in the 5-11-2011 test spec as Item 6.2 under Test Procedures and Conditions):

Primary Election: PRIM-02 A basic election held in 2 precincts. This election contains 13 contests compiled into 3 ballot styles. 1 contest is in all 3 ballot styles all other contests are independent. This election was designed to functionally test the handling of multiple ballot styles, support for Primary presidential delegation nominations, support for two languages, support for complex voting variations, and audio support for multiple languages.

This test spec was in May 2011, but by the end of November of that same year, ES&S abandoned the effort to get certification for version 5.0 of the software in this letter to the EAC.

But hey, Alabama election officials bought it anyway.

Because the software doesn’t support a delegate election, it didn’t kick out votes that violated the rules (that were written on the ballot, but in tiny type).

We had a software problem and a voter problem: many voters were confused from the beginning. There were a tremendous number of over votes. For instance:

Madison County Results (PDF) Martin O’Malley votes for president: 72 votes Martin O’Malley delegate votes – Male: Parker Griffith: 3129 votes

William Krause: 3114 votes

Neither Griffith nor Krause should have received more than 72 votes, let alone thousands of votes. The same thing happened in the Republican primary.

If you’re still with us, at this point you may be asking: so what? Does this even matter to anyone except the people who ran as a convention delegate?

YES. Because this purchase appears to have violated state law.

Section 17-3-7, Ala. Code 1975, provides that “…every governing body of a party shall have the right, power, and authority to fix and prescribe the political or other qualifications of its own members and shall, in its own way, declare and determine who shall be entitled and qualified to vote in such primary election or to be candidates therein or to otherwise participate in such political parties and primaries.” That section also provides that “Nothing herein contained shall be so construed as to prohibit any state executive committee of a party from fixing such qualifications as it may deem necessary for persons desiring to become candidates for nomination to offices at a primary election.” Section 17-13-105, Ala. Code 1975, provides that “Each political party… wishing to hold such a presidential preference primary shall…adopt and file with the Secretary of State a resolution stating that intention, the method by which electors are to indicate one or more preferences, the method by which delegates are to be selected, elected, chosen, and replaced, and the pledge, if any, by which delegates are to be bound.”

That’s a lot of legalese, but but it boils down to this:

Political parties decide how they want to elect delegates.

The parties tell the state and the state conducts the election accordingly.

It’s state law and state officials are bound to follow it.

As we noted previously, that system failed miserably this year – after working reliably in previous presidential primary elections. The delegate vote counts are totally out of whack and don’t match the totals for the actual presidential candidates.

So you have to ask….if state elections officials were willing to blow off state law in this case, have they done it in other ways that aren’t nearly as transparent as delegate vote totals? How do we know?

We have an important election coming up in November. In some states, even a few votes per precinct could swing the state to one candidate or another. The people must have confidence in the voting process and equipment.

In subsequent articles, we’ll explain in more detail how the voting equipment works and serious operational problems that other states have experienced with the DS200 equipment. As a teaser…. DS200 machines used in a NY state election overheated and added 60,000 extra votes to the gubernatorial vote total.

Stay tuned!

Cameron Kelly-Johnson is an economist, political analyst, data geek, technology aficionado and general consultant. He is luckily complemented by his wife Jennifer who agrees that their marriage is data driven and fact based. Contact him at CKJ@ckj411.com or http://www.ckj411.com.



Larisa Thomason is an LIA editor/admin, which she describes as “the worst, most important volunteer job” she’s ever had. Contact her at countrycat@leftinalabama.com