ES&S Files Legal Action to Maintain Choice in Ohio's Voting System Selection Process

COLUMBUS, Ohio(BUSINESS WIRE)May 2, 2005

  Lawsuit claims state directives breach existing contract with company and have removed authority from Ohio counties    

In a lawsuit filed today, Election Systems & Software, Inc. (ES&S) - a leading provider of Ohio's election equipment and services - states that recent actions by the Ohio Secretary of State's office would unfairly eliminate the opportunity for Ohio counties to choose election systems from competing firms. This ion process is part of a statewide effort to comply with the federal Help America Vote Act (HAVA). The lawsuit, filed in the Court of Common Pleas in Franklin County, Ohio, seeks a temporary restraining order and preliminary injunction to enforce the terms of a signed contract that ES&S has with Secretary of State Kenneth Blackwell and prevent the Secretary from implementing several unilateral directives his office issued to counties in mid-April.

"We took this step reluctantly after many attempts to resolve these issues amicably," said Aldo Tesi, ES&S President and CEO. "We have no desire to sue state agencies, but the voting system ion process in Ohio has effectively removed the authority of county officials and directed business to one of our competitors. The counties and people of Ohio have a right to the best voting system to meet their needs. They also deserve a procurement process that is open and fair."

"ES&S has been supporting elections in Ohio since 1974 and currently serves 38 of Ohio's 88 counties," continued Tesi. "We have a solid track record of success in the state and strong relationships with the counties and voters we've served. ES&S is firmly committed to serving Ohio for many years to come, but the Secretary of State's office has effectively eliminated that opportunity by taking choice out of the Ohio election system ion process. That is why, regrettably, ES&S initiated legal action today."

In the litigation, ES&S states that the Secretary of State's office has:

Breached a contract signed in 2004 with ES&S. That contract obligated ES&S to supply Ohio counties with voting systems and services, according to specific terms including cost. After finalizing that agreement with the Secretary of State's office, 42 of Ohio's 88 counties committed to purchase election equipment and services from ES&S.

Unilaterally "changed the rules of the game" in a January 2005 directive requiring that all Ohio counties now purchase only optical scan voting systems as their primary voting system. This directive was in direct conflict with the contract mentioned above, which stated that counties would be free to choose either optical scan or touch screen voting machines. After issuing this January directive, the Secretary of State's office ignored an Ohio Attorney General's opinion that found it had exceeded its authority and abused its discretion by imposing a decision on the counties. The office wasn't even deterred by a lawsuit filed by several Ohio counties challenging the directive. As a result, election equipment providers, Ohio counties, and others involved in the process of complying with HAVA were forced to focus on implementing optical scan voting technology.

Held secret, behind-closed-doors "negotiations" outside the normal procurement process with just one vendor seeking to provide touch screen voting machines as primary voting systems (in spite of the previous directives to counties that it would not allow touch screen machines). None of the other vendors were given the opportunity to participate in or were even informed about these "negotiations" until an agreement had been reached in mid-April.

Again reversed course and imposed unreasonable and arbitrary deadlines in an April 14, 2005, directive. Just 92 days after directing all Ohio counties to purchase optical scan voting system, the Secretary of State's office suddenly allowed the purchase of touch screen systems - but within a timeframe that effectively eliminated all but one vendor from consideration. One arbitrary deadline required certification of a touch screen system feature by May 13, 2005, despite the fact that the certification rules were not even scheduled to go into effect until April 28. The lawsuit states that such deadlines "have effectively stolen the counties' exclusive authority to choose their own voting systems."

Failed to address the costs to counties and the state of other election services required to carry out elections, beyond the upfront cost of purchasing equipment. In this way, the April 14 directive from the Secretary of State's office effectively forced unknown costs on the counties.

"Unfortunately, before they have even had a chance to cast a vote on new election equipment, Ohio voters and counties have lost," said Tesi. "We do not want to see a situation where counties have only one choice when it comes to something as important as our democratic process. If Ohio counties have only one option in election equipment and services, it is unlikely they will receive the best long-term deal."

About Election Systems & Software (ES&S)

Election Systems & Software, Inc. (ES&S) is the world's largest and most experienced provider of total election management solutions. For more than three decades, ES&S as an election-only company and the industry leader has grown to support a customer base of more than 1,700 jurisdictions in the U.S. Based on the primary voting tabulation system installed within the United States, ES&S customers represent approximately 42% of registered voters in the U.S. In 2004, ES&S supported over 5,700 elections in the U.S.

Statement from Aldo Tesi, President & CEO

Legal Action to Preserve Choice in the Selection of New Voting Systems in Ohio

May 2, 2005

Today, Election Systems & Software, Inc. (ES&S) filed suit in the Court of Common Pleas in Franklin County, Ohio, to maintain choice for Ohio counties in the ion of new voting systems to comply with the federal Help America Vote Act (HAVA). We take this step regrettably after repeated attempts to resolve this issue amicably and through the normal course of the procurement process. Unfortunately, we have no option but to pursue this action. That is because, in a directive about how Ohio will achieve HAVA compliance, the Secretary of State's office effectively took away the ability of local county government to choose equipment and a manufacturer that best meets their needs. This directive is the latest in a series of contradictory policy reversals that has hurt counties and voters throughout the state of Ohio.

The behind-closed-doors "negotiations" that the Secretary of State's office made with only one vendor ignored a previously signed agreement that was made out in the open with all vendors participating. The affect of this arrangement was to eliminate all competition from the ion process. The Secretary of State's office claims this is a good deal for Ohio counties, but how do we know that is true? No one knows the real detail behind the arrangement, or answers to key questions about what it means for the successful and cost effective implementation of new voting systems in Ohio. For instance, what does this deal say about the potential costs for all other election services that counties will need such as poll worker training, technical support, and election preparation? How does it factor in a vendor's experience and expertise? How does it account for the benefits of one vendors' technology over another, particularly in enhancing access for the disabled and ensuring security? And, why is it based on arbitrary deadlines that make it nearly impossible for others' to participate in this process, and which are not necessary for achieving the state's own desire to implement new systems for the November 2005 election?

Ohio county boards of election and voters deserve answers to these questions, and they deserve the right to choose a new voting system that best meets their needs.

For months now, the Secretary of State's office has sent conflicting directives to election officials throughout the state and election system vendors about what they must do to comply with the federal law. In January, the Secretary of State's office told county election officials that they could not choose to use touch screen voting machines. Now, suddenly, the Secretary of State's office says counties may use the touch-screen technology, but only the kind produced by one vendor. The result is confusion and set-backs in achieving the vision and mandate of HAVA.

ES&S has been supporting elections in Ohio since 1974, and currently serves 38 of Ohio's 88 counties. We have a solid track record of success in the state and strong relationships with the counties and voters we've served, and want to continue to serve Ohio for many years to come. The Secretary of State's office has effectively eliminated that opportunity by taking choice out of the Ohio election system ion process. That is why, regrettably, ES&S initiated legal action today.