City attorney joins secretary of state in suing voting-machine maker

One day after California’s secretary of state filed suit against Election Systems & Software for nearly $15 million, San Francisco City Attorney Dennis Herrera filed a separate lawsuit against the electronic voting machine company.

Nebraska-based Elections Systems & Software, which bills itself as the worlds largest voting systems provider, supplies San Francisco’s elections machines.

According to a press release from Herrera’s office, it was a “pattern of misrepresentations and voting system problems by ES&S that caused Secretary of State Debra Bowen to impose stringent conditions” on San Francisco’s use of its voting machines earlier this month. As a result, it took the Department of Elections nearly two weeks to tabulate the 150,000 ballots cast this election.

City officials knew about some of the potential certification problems with its ES&S voting system. But they did not receive official notice from the state until late summer that The City would not be allowed to use its AutoMARK machines for disabled voters, or tabulate votes with the optical scan machines used at the precincts.

ES&S, in a response, dismissed Herrera’s claims as “inflated and distorted,” saying minor changes to AutoMARK’s hardware were reviewed and approved by federal testing authorities.

“The [law]suit’s claims of the sale of uncertified devices crumbles under these facts,” according to the ES&S statement.

The City sent a letter to ES&S on Nov. 7 demanding that the company remedy the contract breaches by paying the additional costs The City incurred — estimated at $300,000 — for the extra effort to count ballots this year; pick up the tab for costs associated with borrowing AutoMARK machines from Contra Costa County; and agree to provide San Francisco with certified AutoMARK machines in time for 2008.

If ES&S did not respond affirmatively to the demands by Nov. 19, Herrera had said he would sue. A letter from ES&S attorneys to Herrera dated Nov. 19 said the company was “surprised at the tone and substance” of Herrera’s Nov. 7

letter and disagreed with his position.

beslinger@examiner.com, dsmith@examiner.com  

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