Electronic voting critics sue company under whistle blower law

RACHEL KONRAD

Associated Press

 

SAN FRANCISCO - Electronic voting critics are suing Diebold Inc., alleging that the hardware and software company's shoddy equipment exposed California elections to hackers and software bugs.

California's attorney general on Friday unsealed the lawsuit, among the first e-voting cases to rely on an obscure legal provision for whistle blowers who help the government identify fraud.

Computer programmer Jim March and activist Bev Harris, who filed the case in November, are asking the state and counties to join the lawsuit. They're seeking full reimbursement for Diebold equipment purchased in California.

Alameda County has spent at least $11 million on paperless touchscreen machines. State election officials have spent at least $8 million.

Because the lawsuit relies on an obscure provision called "qui tam," March and Harris could collect up to 30 percent of any reimbursement.

"This is about money now - a case of the capitalist system at work," said March, a Sacramento computer enthusiast. "The laws on voting products and processes are unfortunately unclear. But the law on defrauding the government is really, really clear. Going after the money trail is cleaner than going after proper procedures."

Diebold spokesman David Bear said Saturday the company has not been served with the lawsuit and would not comment until it reviewed the case.

Election officials have until Sept. 7 to decide whether to join the lawsuit, said Tom Dresslar, spokesman for California Attorney General Bill Lockyer. Dresslar said the state would decide whether to participate after it completed an investigation.

Elaine Ginnold of the Alameda County registrar of voters said the county has not decided whether to participate. She said Diebold has been "extremely responsive" in addressing problems with decoders used in the March primary, which forced at least 6,000 of 316,000 voters to use backup paper ballots.

"I think we avoided a major crisis - it would have been much, much worse had we not had those paper ballot backups," Ginnold said.

Lawmakers from Maryland to California are expressing doubts about the integrity of paperless voting terminals made by several large manufacturers, which up to 50 million Americans will use in November.

In the March primary, 573 of 1,038 polling places in San Diego County failed to open on time because of computer malfunctions. In North Carolina's 2002 general election, a software bug d 436 electronic ballots from six paperless machines in two counties. Earlier this year, California Secretary of State Kevin Shelley banned one Diebold system after he found uncertified software that "jeopardized" the outcome of elections in several counties.

Qui tam - often used to find fraud involving Medicare or defense contracts - is a provision of the Federal Civil False Claims Act. Some states have similar acts.

Individuals tip off the government to embezzlers or shoddy contractors - and the whistle blowers get up to 30 percent of the reimbursement.

Qui tams are usually sealed for at least 60 days, and whistler blowers cannot discuss them. California allows individuals to publicize details of cases, but whistle blowers can't mention the existence of the lawsuit.

Contents of March and Harris' case have been widely publicized - including Diebold's use of uncertified hardware and software, and modems that may have published election results online before polls closed. It's unclear whether individuals have filed e-voting qui tams elsewhere.

Qui tam is an abbreviation from a Latin phrase meaning, "someone who sues on behalf of the king and on behalf of himself." The idea originated in 13th century England but wasn't used much until 1986, when rampant procurement fraud convinced U.S. regulators to boost whistle blowers' share of payments. Whistle blowers filed 33 cases in 1987 and 326 cases in 2003.

In June 2003, pharmaceutical firm AstraZeneca agreed to pay $355 million after it set the average wholesale price for Zoladex higher than prices physicians paid - but failed to report discounts to Medicare. A vice president for sales at a rival filed the suit and received $47.6 million.

Federal qui tams totaled $7.8 billion through 2003. Whistle blowers collected $1.3 billion, according to San Jose, Calif.-based Bauman & Rasor Group, Inc.

The government declines to participate in about 70 percent of all qui tams filed, said Bob Bauman, a private investigator and former government consultant.

Some say qui tams are little more than hush money. Voting problems should be widely publicized - not kept under seal - before the November election to discourage more counties from switching to paperless systems, critics say.

"I would like to see people support a real solution rather than just try to cash in," said Alan Dechert, founder of Open Voting Consortium Inc., whose voting system relies on nonproprietary software. "There are a lot of people who could be a tremendous asset, but they're grandstanding and reveling in the expose."