County warns touchscreen firm

Diebold must make plan

By Ian Hoffman, STAFF WRITER

The oldest West Coast customer of Diebold Election Systems is calling company executives on the carpet today, citing "disappointment and dissatisfaction" with Diebold voting equipment.

Alameda County, the first and, until recently, largest user of Diebold touchscreen voting machines in California, warned the McKinney, Texas, firm this week that it is "not adequately performing its obligations."

Voting industry observers say the warning marks perhaps the first time that a U.S. county has lodged a formal contract complaint with a manufacturer of electronic voting systems.

After his phone inquiries to Diebold went unanswered, Alameda County Registrar of Voters Bradley Clark wrote a letter Monday invoking the performance clause of the county's $12.7 million contract.

He demanded Diebold deliver within 10 days a written plan to correct multiple problems, foremost of which was forcing the county to use poorly tested, uncertified voter-card encoders that broke down in 200 polling places March 2.

Diebold executives agreed to a meeting today. The company did not respond to inquiries Tuesday.

Alameda County Counsel Richard Winnie shied from talk of legal action. "We're going to take this step by step," he said. "We're very serious about making sure we don't have problems like this in the future."

Clark's letter revealed a greater array of problems with Diebold equipment and ballot-printing services than the county previously has acknowledged.

The most serious and well-known the large-scale failure of electronic devices used to produce ballot-access cards for voters delayed Super Tuesday voting at 200 polling places in Alameda County and more than 560 in San Diego County. When paper ballots ran out, hundreds of voters were turned away.

Diebold officials have blamed the encoder failures on drained batteries. Yet poll workers have told ANG Newspapers and Clark's office that they kept the encoders fully charged only to see them fail for varying periods of time on the election morning.

For the first time, Clark's letter suggests Alameda County also had unspecified "programming problems" in the Democratic and American Independent Party presidential primaries. The registrar did not respond immediately to inquiries Tuesday about those problems.

Clark also made note of "absentee ballot problems," a reference to a glitch in the Oct. 7 recall election that mysteriously awarded thousands of absentee votes for Democratic Lt. Gov. Cruz Bustamante to Southern California Socialist John Burton. A Diebold technician changed the votes after examining the paper ballots and scanned ballot images.

"I am sure that it was fixed because of the hand counts that we did," Clark said in a recent e-mail, "but I was not satisfied with the answers as to why it happened."

Diebold's explanations have ranged from a corrupted candidate database to a bad vote-counting server.

Contrary to its agreement with Alameda County, Diebold also has failed to supply certified software and hardware. State elections officials found uncertified voting software running last fall in Alameda and all other counties that Diebold serves.

But it was the failure of the voter-card encoders that underscored Diebold's lapses in getting its systems tested, nationally qualified and state-certified. Diebold submitted its encoders too late, and with the primary days away, counties such as Alameda and San Diego had few other options but to use them, despite the lack of testing for reliability and durability.

"We look forward to a candid and complete discussion of our concerns," Clark wrote. He demanded that company executives provide written assurances "of Diebold's ability and honest commitment to this contract and to a prompt and comprehensive solution to the many problems we have experienced."

Voting industry experts say contract disputes with voting system vendors are exceedingly rare.

Elections officials and vendors largely have maintained a united front against critics of electronic voting, calling claims of poor security overblown. Together, vendors and elections officials have cautioned that those criticisms risk undermining voters' trust.

But more recently, state and local elections officials have begun to question whether the industry's top players Election Systems & Software and Diebold Election Systems also are imperiling that trust by deploying untested, uncertified voting software and hardware in the 2004 elections.

*I just think I was absolutely lied to by your CEO, and I'm more than on the slow burn about it,* Indiana election commissioner Brian Burdick told ES&S executives two weeks ago.

Gradually, said voting systems consultant Kimball Brace, U.S. counties are holding vendors to their commitments.

*I do see this as a continuation of a trend I'm starting to see of counties reacting more than they have in the past,* Brace said.>

*That's quite a substantial letter,* said David Jefferson, a computer scientist at Lawrence Livermore National Laboratory and a member of a state task force on touchscreen voting.

He praised Alameda County for *not just protecting the business relationship with the vendor but actually holding them to performance.*

*That's the way it should be,* Jefferson said. *This is a contractor relationship and contractors are expected to perform, even if their machines were not at the center of the democratic process.*>