Lawsuit to Decertify Diebold Optical Scan

In the first pre-emptive lawsuit against voting machines filed by a candidate, Andy Stephenson -- a candidate for Washington Secretary of State -- has filed for an injunction to decertify Diebold GEMS central count software used in four Washington counties. The suit alleges that current Washington Secretary of State Sam Reed improperly certified the voting system. Stephenson is also suing King County over the use of uncertified optical scan software.

Today's hearing will decide a motion to dismiss, filed by Sam Reed's office. Of interest: Reed has asked the judge to deem the formal report by California Secretary of State Kevin Shelley to be inadmissable hearsay, and in a more bizarre response, seeks to have Diebold's own "release notes" -- the document which lists changes made in the software -- to be deemed inadmissable. Washington's laws regarding admissability of evidence are more liberal than many other states, allowing the use of reports, and even news articles, to be submitted as evidence.

Reed's objection to the Diebold release notes is interesting because these release notes are required to be submitted to the defendant -- the Secretary of State -- in order to certify the GEMS software.

The release notes submitted by Stephenson demonstrate that the software had over 600 changes, including many new features, requiring it to undergo certification according to Washington state law. The state has not provided its own copy of the Diebold GEMS 1.18.18 release notes, so Stephenson obtained release notes via the state of California. The release notes are a critical document, and it will be interesting to see whether Reed's office refuses to provide their own copy, or attempts to claim that the Diebold GEMS release notes for Washington differ from the same document submitted by Diebold to the state of California.

Today's hearing should be a simple one; upcoming actions may become more contentious. One material witness, Washington State Elections Director David Elliott, took an indefinite personal leave of absence at about the time the lawsuit went its into discovery phase; at the same time, the King County Elections Office issued a directive to its employees to destroy records over 90 days old, a directive that appears to invite employees to remove evidence.

The GEMS central count software used in Washington State was certified on August 12, 2004 by Steve Excel, the assistant secretary of state in Washington. Washington state law requires use of the software in another state election before it can be certified, but this software had never been used elsewhere at the time it was certified. In March 2004, GEMS software miscounted 3,000 absentee ballots in San Diego, which Diebold admits was caused by a program error. In the state of Washington, as many as 60 percent of all ballots are absentee, so this flaw is a genuine concern for a candidate who must depend on the accuracy of the vote count for his election.

Also at issue is the firmware inside the Diebold optical scan machines in Washington State. Documents provided by state elections director David Elliott earlier this year indicate that this firmware has never been certified at all in Washington state.

- Bev Harris

NOTE: You can donate towards Bev Harris's costs via Paypal at http://www.blackboxvoting.org/

Bev Harris is author of Black Box Voting: Ballot Tampering In The 21st Century … See http://www.blackboxvoting.com/ and http://www.blackboxvoting.org/

http://www.blackboxvoting.org
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For more background and live news links on this news subject see also Scoop's Special Feature – A Very American Coup…

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