Should Voting Machine Makers Be Sued Like Big Tobacco?

By Steven Rosenfeld, AlterNet. Posted November 2, 2007.

Voting machine manufacturers should be investigated by Congress and sued by state and local governments across America for knowingly selling defective products to taxpayers, a growing number of voting rights attorneys and activists are saying. If successful, these advocates say the legal action could lead to multimillion-dollar refunds.

"It is our view at Voter Action that this whole question must be brought to a new level," said John Bonifaz, the group's legal director. "It is akin to the scrutiny that finally was applied to the big tobacco companies, with respect to what they knew and when they knew the effects of the products that they were marketing."

"A month ago, four citizens filed allegations with Arizona's attorney general complaining about these issues," said Jim March, a Black Box Voting board member and voting technology consultant, referring to a legal complaint that manufacturers sold uncertified electronic voting machines to Arizona counties. "If he does not respond in 60 days and does not file a suit, then we can file it."

In 2003, March and Black Box Voting founder Bev Harris filed a similar whistleblower suit in California against Diebold Election Systems that was settled for $2.6 million by the state's attorney general.

The latest round of public-interest advocacy has been sparked by recent reports from independent journalists and state officials documenting flaws in the manufacturing and performance of electronic voting systems. Congressional staffers say the product liability issue may be ripe for inquiry. Meanwhile, legal experts say local governments could have a strong case for seeking refunds.

"A state or county that purchased a machine would have a straightforward claim under the uniform commercial code and contract law if the machines did not perform as warranted so long as the defect was material -- i.e., it substantially impaired the value of the machine -- and was undisclosed to the purchaser," said Michael Gergen, a University of Texas law professor. "I would think a defect that raised serious questions about the accuracy of a vote count would substantially impair the value of a machine."

The new advocacy comes against a backdrop of recent disclosures about the nation's electronic voting systems. This summer, California Secretary of State Debra Bowen completed a major review of security flaws in the various voting systems deployed in her state. That review prompted Bowen to restrict the use of several makes and models in the state's February 2008 presidential primary. Under Bowen's early August directives, thousands of electronic voting machines will be pulled from use.

Then, in mid-August, ex-CBS anchorman Dan Rather, now with HD.net, presented an investigative report on the shoddy overseas manufacture of one widely used electronic voting system, the iVotronic made by Election Systems and Software (ES&S). He went to Manila, in the Philippines, where employees assembling ES&S machines spoke of using defective screens and rebuffed efforts to tell management about quality control problems. As many as 15,000 machines may have had defective screens, Bonifaz said, which correlates with election incident reports of voters saying they selected one candidate, but another choice would register on their electronic ballot. Rather also produced a second report on how the paper used for Florida's punch-card ballots in 2000 -- leading to the notorious "hanging chad" problem -- was known to be of dubious quality by Sequoia Voting Systems before 2000's presidential vote. ES&S said the problems with its machines were found and fixed, while Sequoia disputed Rather's findings.

"Sequoia Voting Systems used 99-lb. tab stock, the proper paper quality, for the 2000 election punch card ballots and has provided Dan Rather Reports with substantial documents that indisputably corroborate the source, delivery, payment, and quality of the paper used in the 2000 election," the firm said, in an August 14, 2007, statement.

But Voter Action's Bonifaz said the HD.net documentary raised new legal issues beyond whether manufacturers sold uncertified machines. "Certified or not, they knew it was defective at the time," he said.

"What the Dan Rather report reveals in "The Trouble with Touch Screens" is that these U.S. voting systems companies have potentially engaged in marketing defective products that have impacted our electoral processes," Bonifaz said. "That's one angle. We are pursuing a call for a full congressional investigation into these companies, whether or not they have committed commercial fraud in the marketing of their products across the country dating back to Florida in 2000, and if so, urging Congress to get to the bottom of this transfer and evidence that it has to the proper authorities for potential prosecution."

Staff attorneys and investigators at the House Committee on Government Oversight and Reform, chaired by Rep. Henry Waxman, D-Calif., and at the House Judiciary Committee, chaired by Rep. John Conyers, D-Mich., said they were receptive to information that could support a congressional investigation but said no such inquiry was currently under way. A spokesman for the House Committee on Administration, which oversees elections, said he has heard no discussions of "product liability as a reasonable next step."

See more stories tagged with: elections, election theft, voting rights, bonifaz

Steven Rosenfeld is a senior fellow at Alternet.org and co-author of What Happened in Ohio: A Documentary Record of Theft and Fraud in the 2004 Election, with Bob Fitrakis and Harvey Wasserman (The New Press, 2006).

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