California joins suit vs. Diebold

Outspoken critic says Green firm knowingly sold faulty voting machines, jeopardizing state election

By Erika D. Smith

Akron Beacon Journal staff writer  09 September 2004

Diebold's self-appointed nemesis is back and this time she's got a new ally in the California Attorney General's Office.

On Tuesday, the state joined a false claims lawsuit alleging Diebold Inc. knowingly sold shoddy electronic voting machines that put California's elections at risk.

If the case goes to court, the Green company could fork over as much as $57 million in damages.

Bev Harris calls it a sign.

The e-voting critic and her partner in protest, Jim March, filed the lawsuit in November months after Harris began her coast-to-coast crusade against Diebold.

``I think it's the beginning of more things to come,'' she said Wednesday morning.

The company sees things differently, noting Attorney General Bill Lockyer also decided not to file criminal charges Tuesday.

``Our perspective is the state intervening in the civil case will help us,'' said Diebold spokesman Michael Jacobsen. ``We can hear what the issues are and find a way to better serve the state.''

``Our goal,'' he added, ``is to get through this and re-establish trust in California.''

The company supplies 19 counties with touch-screen and optical-scan voting machines. California has already spent more than $139 million on voting machines from Diebold and three competitors.

The Green company drew criticism from some state officials in March, when malfunctions forced some polling places to open late for the primary election. In Alameda County, for instance, about 6,000 voters had to use backup paper ballots instead of touch-screens.

Weeks later,Secretary of State Kevin Shelley banned Diebold's AccuVote-TSX machines in four counties after a panel found the company had used uncertified equipment. He also asked Lockyer to consider criminal charges and investigate whether Diebold had committed fraud.

Diebold denies it broke the law, and says it has taken steps to prevent such malfunctions from happening again.

The attorney general decided to pursue civil rather than criminal charges because of the evidence, said spokesman Tom Dresslar. The state and Alameda, the only county to join the suit so far, have a strong case, he said.

``That's why we intervened,'' Dresslar said.

That's unusual, though. The government declines to join about 70 percent of such lawsuits, said Bob Bauman, a private investigator and former government consultant.

``The state clearly believes there's merit to the case,'' said attorney Lowell Finley, who represents March and Harris. ``This is a significant event and good news for us.''

The case was filed under the ``qui tam'' provision of the False Claims Act, which is often used to find fraud involving Medicare or defense contracts. Whistle-blowers Harris and March, in this case tip off the government to shoddy contractors and collect as much as 30 percent of the damages.

California could collect triple the amount it and Alameda County paid Diebold $19 million.

It also could lose the case or settle.

Most civil lawsuits do indeed end before they get started in court, Dresslar said. But both he and Jacobsen declined to say whether that will happen.

``I can't speculate on a settlement,'' Jacobsen said. Diebold has a strong case, he said, pointing out that Alameda County recently recertified its AccuVote-TS machines.

Harris, on the other hand, predicts Diebold will settle. But that may not satisfy her.

``What I want at this point is them out of the industry,'' she said.

She's also itching for a court fight.

``We are eager to take them to discovery,'' Harris said.

Asked if she would object to a settlement, the woman from Washington state said it depends on the terms.

``I'll have to see what gets put on the table,'' she said.

Dresslar said Harris and March won't be pushed out of the process if a settlement is proposed.

``All parties can have their say,'' he explained.

The whistle-blowers want Diebold to fix problems with its machines that the company denies exist. So a settlement that's amicable to all three parties may not come easy.

``What you have to do in this situation,'' Harris said, ``is vote them off the island if you can vote.''