May 5, 2004
Lawyer memos warn that the voting-machine company may have violated state
law
This article originally appeared in the LA Weekly in the April
30 - May 6, 2004 issue.
Okay, it’s not a tale of that vaunted “vast right-wing
conspiracy,” but suddenly the case against Diebold’s electronic-voting
machines is gaining momentum. Last week, an advisory panel for the California
secretary of state recommended ditching the machines for the November presidential
elections.
That event was widely reported, including in the Los Angeles Times.
What wasn’t reported locally is Exhibit A, internal documents from lawyers
for Texas-based Diebold Election Systems, Inc. In these documents, the attorneys
concede that the company used uncertified voting machines during elections
before January 28, 2004. The memos also state that such actions would violate
both California election law and, by extension, Diebold’s $12.7 million
contract with Alameda County. The memos don’t specify a particular election
that was mishandled.
These Diebold memos (see links below)were unearthed by the Oakland Tribune
and became the basis for a Tuesday story by reporter Ian Hoffman. The source
of the memos, the law firm Jones Day, went to court last week demanding a
return of the documents. Jones Day also sought to prevent the newspaper from
publishing additional articles based on the documents, raising the same First
Amendment issues addressed most famously in the Pentagon Papers case. A Los
Angeles Superior Court judge ordered the newspaper to return some of them,
but the matter is in limbo pending ongoing court motions.
Diebold has conceded that it violated California regulations by using uncertified
software in the March 2 election. This misstep occurred even though the Diebold
internal memos had previously warned the company precisely of this problem.
These memos also talk of greater legal culpability if the company knowingly
violated California election law. The documents offer a potentially damning
indictment of a company that failed to fly right despite in-house warnings.
A conciliatory Diebold spokesman said his company will cooperate fully with
state and local election officials. “We have acknowledged that changes
to the software were made,” said David Bear. “Updates had been made
to meet state and local needs. We were remiss about making notifications to
the state of the changes. But no one has called into question the results
of the election.”
Bear’s depiction understates the situation as described by a former
Diebold technician who spoke to the Oakland Tribune. The technician
depicted a company that was running behind schedule, making untested, last-minute
fixes and conjuring solutions on the spot.
At the same time, the internal memos reveal that Jones Day lawyers were exploring
strategies to fend off legal challenges. In one memo, they propose a billing
schedule for two months’ work ranging from $535,000 to $925,000. Legal
machinations were eventually cited as a strike against Diebold. The company
“raised frivolous legal objections to providing many [requested] documents
and provided other documents in an untimely manner,” according to a Secretary
of State’s Office report on Diebold.
The issues with Diebold’s TSx voting machine went well beyond cooperation
over paperwork. The state report said Diebold “marketed and sold the
TSx system before it was fully functional, and before it was federally qualified,”
“misrepresented the status of the TSx system in federal testing in order
to obtain state certification” and “failed to obtain federal qualification
of the TSx system despite assurances that it would.” In addition, the
company allegedly “installed uncertified software on election machines
in 17 counties” and “jeopardized the conduct of the March primary.”
The secretary of state’s advisory panel noted that some voters were
turned away when poll workers could not get machines started on time in San
Diego and Alameda counties.
The Oakland Tribune’s article on the internal memos, published
last week, earned an especially pointed reaction from Diebold’s camp.
Jones Day, which has been representing Diebold, went to court in Los Angeles
the same day demanding the memos’ surrender. The “defendants have
wrongfully obtained the protected documents with knowledge that they were
private and confidential,” said the Jones Day court filing. “Defendants
have unlawfully disclosed and threatened to further disclose part or all of
the protected documents, and refused to return them.”
The firm’s attorneys also asked a judge to prohibit the paper from using
or referring to the documents in the paper’s coverage. Diebold itself
was not directly involved in the legal action. Instead, Jones Day pursued
the case as an illegal use of its own confidential papers.
Los Angeles Superior Court Judge Dzintra Janavs sided with Jones Day regarding
any materials stamped “attorney-client privilege” or “attorney
work product,” but with a notable exclusion. The judge applied the order
only to documents that the newspaper had not made public. The newspaper, wisely,
had already posted four key documents on its Web site with the article, thus
placing them out of reach of the judge’s order.
On the second request — a ban on the use of information contained in
the memos — the judge never ruled. “They argued that point for about
half the hearing, and then they dropped it,” said attorney Jean-Paul
Jassy, who is representing reporter Hoffman and MediaNews Group Inc., which
owns the Tribune. “Then they focused on the return of the documents.”
In the three-hour hearing, which lasted into the evening, Jassy said he argued
alone against a phalanx of six Jones Day attorneys. “I said they were
asking for a prior restraint on speech, and that was unconstitutional under
the First Amendment and under the California Constitution. Our position is
that nothing the reporter or newspaper has done is illegal — nothing,”
said Jassy. “This case involves a constitutional right of the highest
order, which is the right of the media to gather and disseminate news about
a matter of profound public interest.”
Secretary of State Kevin Shelley has until April 30 to decide whether to
ban the Diebold TSx machine from the November election. The outcome could
affect millions of dollars in future business for Diebold. The company also
faces multimillion-dollar liabilities. The internal memos plainly confront
this possibility. As one memo puts it, “Issue: Whether the use of an
uncertified voting system is illegal? Short answer: Yes.”
The same memo then deals with whether the company had violated its contract
with Alameda County. “Issue: Whether Diebold breached the Agreement if
it provided Alameda County with an uncertified voting system? Short answer:
Mostly likely . . . If Diebold materially breached the Agreement, Alameda
County can terminate the Agreement and sue for damages.”
A later memo concludes that the company probably crossed the line. “During
the conference call with Karen Gantt on January 28, 2004, it was disclosed
that [Diebold] modified a California state-certified voting system as an experiment
to remedy various technical problems with the system . . . [It] failed to
obtain California state certification . . . Issue: Whether a California state-approved
voting system may be modified for experimental use without the secretary of
state’s approval? Short answer: Probably not.”
A furor ensued last year after the chief executive of Diebold’s
parent company invited 100 wealthy friends to a Republican Party fund-raiser.
“I am committed to helping Ohio deliver its electoral votes to the president
next year,” wrote Walden W. O’Dell in the letter. O’Dell belongs
to Bush’s “Rangers and Pioneers,” who have each raised at least
$100,000 for the president’s re-election campaign.
O’Dell’s letter fueled conspiracy theories about thrown elections.
Others accept electronic voting as the future but insist that the technology
is far from foolproof. If the machines malfunction — say, by giving votes
to the wrong candidate — it may be impossible to recognize the error,
absent a paper audit trail. The whole uproar is especially ironic given that
electronic voting was championed as the way to prevent a repeat of the 2000
Florida fiasco.
Secretary of State Shelley could elect to shelve all electronic voting. Fourteen
counties, with about 45 percent of the state’s voters, rely entirely
on electronic systems from Diebold and its competitors. Shelley has to decide
by Friday because he is required by law to give local officials six months’
notice. He’ll also have until Friday to decide whether to refer Diebold
to the state attorney general for possible civil and criminal prosecution
— as recommended by his advisory panel.
But a defense of Diebold emerged from L.A. County, where Diebold machines
are just part of the election arsenal. The state’s own spot checks showed
100 percent accuracy in vote recording, said County Clerk Conny B. McCormack,
speaking to the Board of Supervisors. “And frankly,” she said, “we
know that’s not the case with paper-based voting systems.”
© 2004 LA Weekly
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Diebold’s Internal Memos
Desi's
New California Issues
Re:
Alameda County Agreement
Issues
Re: California Secretary of State Investigation
Memorandum
Analyzing the Alameda County Agreement
From the Oakland
Tribune
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Reprinted under the 'fair use' provision of copyrighted material as
provided for in Section 107 of the US Copyright Law.