Voting-machine deadline at risk
California's secretary of state says he may not certify any more electronic ballot systems this year, throwing compliance with a U.S. disabled-voter law into doubt for many counties
By Kevin Yamamura    Sacramento Bee    November 29, 2005

Secretary of State Bruce McPherson conceded Monday that he might not certify any more electronic voting machines this year, leaving many of the state's 58 counties at risk of missing a Jan. 1 federal deadline requiring upgrades for voters with disabilities.

But McPherson promised that the state would work with federal officials to comply with the Help America Vote Act by the next statewide election in June. He spoke to reporters during a two-day summit on voting systems tests in Sacramento attended by 100 elections officials and experts from throughout the country.

"Jan. 1 might be a difficult date to hit," McPherson said. "But the Department of Justice and others have said you're moving in the right direction ... . We think we are going to be right on target. We hope to be there certainly by June."

 HAVA requires by Jan. 1 that voters with disabilities be able to vote independently and privately with at least one accessible machine per polling place. Voting systems also must allow users to review ions before they cast their ballot and inform them if they mistakenly mark off more than one candidate.

The state has certified only one elections system for use by voters with disabilities in the 2006 primary: an optical-scan technology made by Election Systems & Software. Sacramento County is one of at least eight counties planning to meet federal requirements by using the ES&S machines, according to a July secretary of state report.

At least 15 counties not using the ES&S technology have urged McPherson to approve another system made by Diebold Election Systems. Many of those counties have either purchased or negotiated to buy Diebold's touch-screen technology to comply with the federal mandate.

State elections officials this month recommended that the Diebold system be certified after a recent round of volume testing in San Diego County.

But Diebold has become a lightning rod for electronic-voting critics who say any computer-based system is vulnerable to hackers and others who consider the company too partisan because some of its officials have backed Republicans.

In response, McPherson announced last week that he invited Finnish expert Harri Hursti to attempt to hack into the Diebold system. McPherson said Monday that if the Diebold system does not pass the as yet unscheduled test, "then we'll have to go back to square one."

While he hopes it will occur before the end of the year, he said it could happen as late as January. That would mean counties that want to purchase the Diebold systems would fall out of compliance once Jan. 1 passes.

McPherson also suggested that counties can use the already certified ES&S system. But Conny McCormack, president of the California Association of Clerks and Election Officials, said she fears it will face legal scrutiny because voters with disabilities have said it lacks privacy and may require poll-worker assistance.

ES&S, in a letter sent to McPherson, stated that the ballots come with privacy sleeves and defended the system as compliant with federal standards.

McCormack, the Los Angeles County registrar of voters, questioned why the hacking test can't occur sooner.

"Counties are in the victimized position right now of having all the responsibility to become compliant and none of the authority to get there, and that's the worst situation to be in," she said.

She said she once warned McPherson and former Secretary of State Kevin Shelley that there was a "crisis" looming.

"Now we're 33 days away," McCormack said, "and we're not in any better situation now than we were when Secretary McPherson took over (March 30)."

McPherson said he wants counties to have options next year, but he suggested that California's "strictest voting tests in the country" are responsible for the delay.

U.S. Election Assistance Commission Vice Chairman Paul DeGregorio called the Jan. 1 date "a firm deadline."

"States have been on notice for three years that this deadline is coming up," he said. "If they don't (comply), we fully expect the Justice Department to get involved, to look at this issue."

DeGregorio added that DOJ could file a lawsuit or use a consent decree to get states and counties to their voting systems. He also said he would not be surprised if voters with disabilities pursue private lawsuits.

Kim Alexander of the California Voting Foundation said federal testing procedures are flawed - and that California should use more rigorous standards to ensure that elections are safe in California. She said California at the very least would have a paper trail next June after a law passed in 2004.

"That's the saving grace, right there," she said. "Because there will be a paper record of every ballot cast and because the voter has the right to inspect it, and because the county elections officials have to use that record to audit the results, I think California voters can have a reasonable degree of confidence."