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Now the Onus is on Counties and Diebold to Risk Multi-Million $ Lawsuits

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Wilms Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Feb-19-06 04:31 AM
Original message
Now the Onus is on Counties and Diebold to Risk Multi-Million $ Lawsuits
In GD,
helderheid posted this analysis, received in an email, of the California/Diebold situation.

It raises some very good, and hopeful points.

Subject: McPhersons conditional certification of Diebold voting systems
Date: Sat, 18 Feb 2006

While the initial reaction to the late afternoon Press Release of California Secretary of State McPherson could be characterized as disgust and disbelief, there does appear to be a golden lining. If Diebold is smart, they will immediately withdraw their application and refuse to do further business in California, especially as it relates to the use of any of their voting systems, including optical scan and touchscreen. The reason is legal responsibility and financial liability.

Secretary of State McPherson issued his Approval of Use of Diebold Elections Systems, Inc. DRE & Optical Scan Voting Systems February 17, 2005. Such a letter is required by the Election Code. As part of that approval he stated that the approval was subject to the following terms and conditions...

I would point peoples attention to conditions 4 (j.), (k.), and (l.). With those conditions, combined with the conclusions of his Voting Systems Technology Assessment Advisory Board in their Security Analysis of the Diebold AccuBasic Interpreter report, it is apparent that Diebold Election Systems, Inc. is leaving themselves open to lawsuits and financial liability if they deliver the current voting systems, or modify the existing voting systems for use in this state with the currently federally qualified firmware and software.

Counties, too, are risking losing HAVA and Proposition 41 funds if they spend those funds for voting systems that are not compliant with the law, not including the risk of voter and candidate lawsuits .

Among the conditions required for approval of both the Diebold optical scan and touchscreen voting systems is the following:

Approval Condition 4(j.)

The voting systems shall comply with all applicable state and federal statutes, regulations, rules and requirements, including, but not limited to, those voting system requirements set forth in the California Election Code and the Help America Vote Act of 2002

...Further, voting systems shall also comply with all applicable state and federal voting system guidelines, standards, regulations and requirements that derive authority from or are promulgated pursuant to and in furtherance of the California Election Code or ... including but not limited to, the 2002 Voting System Standards/Guidelines, developed by the Federal election Commission and adopted by the Election Assistance Commission (EAC) and EAC Advisory 2005-04, dated July 20, 2005.

The Voting Systems Technology Assessment Advisory Board found:

Interpreted code is contrary to standards: Interpreted code in general is prohibited by the 2002 FEC Voluntary Voting System Standards, and also by the successor standard, the EACs Voluntary Voting System Guidelines due to take effect in two years. In order for the Diebold software architecture to be in compliance, it would appear that either the AccuBasic language and interpreter have to be removed, or the standard will have to be changed. (p. 3 of Security Analysis)

Remove interpreters and interpreted code: The architecture of the AV-OS and the AV-TSx could be changed so they do not contain any interpreter or use any kind of interpreted code, in order to bring the codebase into compliance with standards. (p. 5 of Security Analysis)

As currently configured neither the Diebold optical scan voting system or the touchscreen voting systems are in compliance with the 2002 Voting System Standards because they both contain interpreted code. No where in the standards does it contain an exception based upon mitigating circumstances or procedural safeguards. The procedural security measures recommended by the Advisory Board, and adopted by the Secretary of State, not only do not make the system comply with the standards, they are based entirely upon the presumption that there would be no opportunity nor incentive for any insider to take advantage of the known security vulnerabilities.

The Standards have not been changed, and under the new adopted standards the prohibition against interpreted code still exists. The only alternative is for the AccuBasic language and interpreter be removed. Remove that from the current Diebold voting systems that are deployed or approved, and they will not work.

Which leads to the final two conditions for approval contained in the Secretarys conditional approval. Approval condition 4(k.) places responsibility upon the vendors to make sure their voting systems do comply with all laws and standards:

Voting system manufacturers and/or their agents shall assume full responsibility for any representations that a voting system complies with all applicable state and federal requirements as referenced above. If they falsely represent that their voting system does comply with the above requirements, they will be responsible for any costs for upgrade, retrofit or replacement of any voting system...

Approval condition 4(l.) would appear to put counties too into a financially risky position if they rely upon the vendors assurances:

Any voting system purchased with funds allocated by the Secretary of States Office shall meet all applicable state and federal standards, including the 2002 Voting System Standards, etc.

It would appear that under this condition, if a voting system was found to not be in compliance with the requirements, the counties who have obtained Proposition 41 funds or HAVA funds to pay for the voting systems would have to return them. They then would have to go after the vendor for either compensation or force them to make their voting systems into compliance.

Why Secretary McPherson chose to approve voting systems that he knows are out of compliance with the law I do not know. It appears he will not be in as great a financial risk as will Diebold Voting Systems, Inc. and any counties that choose to purchase or continue to use Diebolds voting systems. His greater risk appears to be political. Rather than taking a stand against Deibold, and the local election officials intent on supporting Diebold, no matter what, as Secretary of State Kevin Shelley did in April 2004, he has chosen the less confrontational route.

Now the onus is on the counties and Diebold to risk multi-million dollar lawsuits and voter anger, and possible loss of prop 41 and HAVA funds. While Secretary of State McPherson may have dodged a confrontation with the vendors and local election officials now, will he be able to dodge the confrontation coming this next November with his top political opponent for Secretary of State, Senator Deborah Bowen.

Jody Holder
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kster Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Feb-19-06 02:41 PM
Response to Original message
1. K&R...nt
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Wilms Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Feb-20-06 02:02 AM
Response to Reply #1
2. .

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kster Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Feb-20-06 02:16 AM
Response to Reply #2
3. I wasn't going to ask but
could you pull out the old kitty picture, because there are five or six threads with two ,three and four votes that are just dying to get on the greatest page. You remember, this guy

And KEEP Recommending. I'm SERIES!!11!!
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Wilms Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Feb-20-06 02:50 AM
Response to Reply #3
4. Just Dieing Happens

At least that kitty is alright.

I became concerned that in addition to offending some DUers, I might run afoul of those ACVR "Voter Fraud" people, and any number of animal rights groups.

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nicknameless Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Feb-20-06 04:02 AM
Response to Reply #3
5. You might be relieved to know that the kitty not only survived but also
got a great gig playing marimba in the UK.
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EFerrari Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Feb-20-06 12:01 PM
Response to Original message
6. So, would the ACLU take this on?
We know just nagging McPherson will not work.

A referendum might work

A lawsuit might work

Shouldn't we look carefully at those options?
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Wilms Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Feb-20-06 09:11 PM
Response to Reply #6
7. I think someone has to take the SoS to court.

I don't know if that's a group, or what, but I'm guessing that's the remedy if he breaks the law.

But I also wonder if county BoE's are liable.

I don't know how the law works.

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