California Secretary of State Debra Bowen has filed suit against Nebraska-based Election Systems & Software for what she alleges is the latest in a string of willful and repeated violations of California election law. This particular shenanigan involves the sale of 972 uncertified electronic ballot marker machines (EMBs) to a number of California counties in the spring and summer of 2006, a sale that Bowen claims was a flagrant violation of multiple sections of the the California Election Code. Bowen is seeking $9.72 million in damages (or $10,000 per machine), as well as refunds of over $5 million for the equipment and various other penalties.

The dust-up started when ES&S tried to submit for state certification a new version of its voting system—a version that includes a revision (the A200) of the Automark A100 machine that was certified for use in California elections back in 2005. During the course of a conference call with ES&S about certifying the new system, an ES&S employee inadvertently revealed that the company had already sold 972 of the A200-based systems to five unwitting California counties, who thought they were buying the older, certified A100 systems. Some of these counties then used the uncertified machines in elections.

Through the course of the summer of 2006, the California Secretary of State's office investigated this employee's statement, looking into the distinctions between the older A100 system and the newer A200 system. The investigation resulted in a public hearing on October 15, at which point Bowen's office made the case that the sale of the 972 A200-based voting systems had violated at least two sections of the California Election Code, both of which mandate that any voting equipment vendor give notice to and seek the approval of the Secretary of State before making any changes to a certified voting system. (The hearing report, along with more information about the case against ES&S, is available at the Secretary of State's web site.)

In a statement released today, Bowen said that "ES&S ignored the law over and over and over again, and it got caught. California law is very clear on this issue. I am not going to stand on the sidelines and watch a voting system vendor come into this state, ignore the laws, and make millions of dollars from California's taxpayers in the process."

ES&S released a statement on their web site in response to Bowen's suit, claiming (among other things) that "the limited modifications made to the AutoMARK's hardware were extremely minor." Bowen's response to the statement in a telephone conference was picked up by the San Francisco Chronicle: "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."