Take II - Diebold in California: Who's Responsible? (FWIW)

[Wilms]

Diebold in California: Who's Responsible?

By Warren Stewart, VoteTrustUSA
February 18, 2006

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In his certification document for the Diebold systems, McPherson states that the approval was subject to several terms and conditions. Among those conditions, McPherson specifically states that voting systems "shall comply with all applicable state and federal statutes, regulations, rules and requirements, including, but not limited to, those voting system requirements set forth in the California Election Code and the Help America Vote Act of 2002 (HAVA)." He continued, "further, voting systems shall also comply with all applicable state and federal voting system guidelines, standards, regulations and requirements that derive authority from or are promulgated pursuant to and in furtherance of the California Election Code or (HAVA)…including but not limited to, the 2002 Voting System Standards/Guidelines, developed by the Federal election Commission and adopted by the Election Assistance Commission (EAC) and EAC Advisory 2005-04, dated July 20, 2005."

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They go on to suggest that Diebold remove interpreters and interpreted code, suggesting that the architecture of the AccuVote-OS and the AccuVote-TSx could be changed so they do not contain any interpreter or use any kind of interpreted code, in order to bring the codebase into compliance with standards. But when? Before the special election in April? Before the primaries? And who is liable if they don't? Diebold? The counties that purchase Diebold equipment?

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A further condition of McPherson's approval appears to place responsibility upon Diebold to make sure their voting systems do comply with all laws and standards:

"Voting system manufacturers and/or their agents shall assume full responsibility for any representations that a voting system complies with all applicable state and federal requirements as referenced above." If they falsely represent that their voting system does comply with the above requirements, they will be responsible for any costs for "upgrade, retrofit or replacement of any voting system...

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A last condition made by the Secreatry of State would appear to put counties in a financially risky position as well if they rely upon Diebold's assurances:

"Any voting system purchased with funds allocated by the Secretary of State's Office shall meet all applicable state and federal standards, including the 2002 Voting System Standards, etc.

It would appear that under this condition, if a voting system was found to not be in compliance with the requirements, the counties who have obtained funds under California Proposition 41 or federal funds under HAVA to pay for the voting systems would have to return them. They then would have to go after the vendor for either compensation or force them to make their voting systems into compliance.

Before the local election officials give a sigh of relief, it would be incumbent upon them to run all the documents released by the Secretary by their County Counsel. The conditions of approval may put them at greater risk legally and financially than a threat of a suit from the Department of Justice for non-compliance with HAVA. After all, the Diebold voting systems themselves are not in compliance. They should be more concerned with voter confidence and potential liability, than electoral expediency.

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http://votetrustusa.org/index.php?option=com_content&task=view&id=949&Itemid=113