Change in software made primary inherently unfair

JOHN MILLS Opinion in Tacoma News Tribune  30 September 2004

Republicans think Libertarian Jeff Jared cost Slade Gorton his seat in the 2000 U.S. Senate race and accordingly cost the Republicans control of the U.S. Senate.

They don't want a repeat this year, so Sam Reed, our Republican secretary of state, thinks the Libertarians should butt out of the U.S. Senate race this November.

According to Reed, out of approximately 1.3 million votes cast in the Senate race in the new primary this year, I missed the cutoff for the general election by 100 votes — eight thousandths of 1 percent.

So, per Reed, it's adios, amigos; no Libertarian in this year's Senate race. (Editor's Note: On Wednesday, a Thurston County judge ruled that the state must put Mills and another Libertarian candidate on the November ballot.)

Now, I would be the last to whine about missing the cutoff — even by a single vote — if Reed ran the election fairly.

But was this year's primary fair, or do we have a few "hanging chads" of our own, right here in Washington state?

As voters can imagine (and should expect), the software used to tabulate votes in Washington is rigorously tested and certified by national independent testing authorities.

But this year, in six very populous counties, Reed quietly arranged to alter the software. A raft of "emergency" WAC regulations were passed a few months ago which basically waived the usual requirements that vote-tabulating software meet the rigorous federal standards.

Even under these emergency regulations, the software is only "provisionally certified." It's certified, "provided" the software manufacturer has it tested and approved by early next year.

All this came to light in a recent state Senate Government and Operations Committee meeting. When asked: "Is this software certified?" Nick Handy, Washington's new director of elections, replied: "It will be."

That's a remarkable answer. But in fact, Reed's software will never be certified.

Reed's new programming will never be certified because — according to documents currently in the possession of the Libertarian Party — Diebold Inc. intends to incorporate changes ordered by Reed into a whole new version of the old software and test only the new version.

This is sort of like changing from Windows 98 to a beta version of Windows NT for the election, then testing and releasing Windows XP as the approved new software.

So the tabulating software that supposedly recorded my falling eight one-thousands of one percent short of qualifying for the general election against George Nethercutt will never be tested for accuracy or reliability. That's why the Libertarian Party recently asked the Thurston County Superior Court to take a closer look at how votes were counted.

Even more remarkable, Reed intends to use his beta-version software to tabulate votes in the upcoming general election. When asked by state senators whether he intended to go back to the federally certified programming for the general election, Handy candidly admitted he was not going to do that.

So it's "full speed ahead … ignore those icebergs" for Washington state. Here we are, going into one of the most polarized presidential elections in decades, and our secretary of state is going to use uncertified software — specially encoded a few months ago — to tabulate the results.

Oh, by the way, the software manufacturer, Diebold, Inc.? Diebold's CEO, Wally O'Dell, is a proud Pioneer (meaning he donated more than $100,000 to the Republican Party's presidential re-election bid) who once publicly announced he "is committed to helping Ohio deliver its electoral votes to the president."

Reed is running for re-election this year and — you guessed it — that race will be tabulated with his uncertified software.