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Law Office Management

Aug. 2, 2006

This Democracy Is Experiencing Technical Difficulties--Please Stand By

Six years after hanging chads threw the presidential election to the Supreme Court, voting methods are still generating lawsuits and conspiracy theories. Many of them target electronic voting machines. By Chris Thompson

By Chris Thompson
      On June 1, Colorado became the most recent state to join the Great Diebold Wars of 2006. Since the start of the year, plaintiffs in at least four states have sued to force their elected officials to abandon the use or halt purchases of electronic voting machines, claiming that the systems are unreliable and vulnerable to electronic fraud.
      The filing of the Colorado suit was announced at a Denver press conference by Andrew C. S. Efaw, an associate with Wheeler Trigg Kennedy. In election after election, Efaw declared, electronic voting systems have undercounted votes, flipped the results, or registered "phantom votes" that never existed. And in at least two tests, he said, computer experts were able to hack into such machines and change the results within minutes-leaving no electronic trace at all in one instance.
      Such problems, Efaw said, violated the Colorado Constitution, which requires that voting machines be strictly reliable. But more was at stake than mere legality. "That kind of security breach threatens the very cornerstone of democracy," Efaw told the assembled press. "This is something much different than stuffing a ballot box. This is the ability to invisibly change the election [results]."
      Then Efaw paused. There was something he had to get out of the way: He and his legal team weren't Democratic Party partisans out to get a Bush crony. And they weren't crazy, he assured the reporters. "I can tell you what the case is not about," he said. "It's not about challenging any particular election. It's not about a conspiracy theory. And it's not about partisan politics."
      The case, and Efaw's odd compulsion to assert his sanity, are the inevitable fruit of the poisonous tree that American politics has become in the past six years. The events following the 2000 presidential vote in Florida implanted suspicion among millions of citizens that when it comes to national elections, the fix is in.
      In 2002, in response to the Florida debacle, Congress passed the Help America Vote Act to ensure that it never happened again. (42 U.S.C. § 15301.) The law called for a study of electronic voting machines, the most prominent producer of which is Diebold, an ATM manufacturer whose then-chairman and CEO, Walden "Wally" O'Dell, was a big fundraiser for the George W. Bush reelection campaign of 2004-in Ohio, no less. When the company's voting machines began to display reliability and security flaws, critics around the country started whispering that Diebold was part of a sinister plot to subvert democracy and ensure Republican hegemony in perpetuity.
      For the lawyers bringing suit against Diebold, the issue is a good deal more modest: Elections must be safeguarded against any possibility of misconduct or technical failure, and touch-screen electronic machines have demonstrated a capacity to fail. It's as simple as that. But in this polarized political climate, where both parties play to their most partisan voters and the National Security Agency has compiled a database of billions of phone calls, nothing is just a matter of civics. Grassroots activists posting online at Daily Kos and other liberal websites see the hand of Karl Rove behind every Diebold glitch. Their counterparts on the political right are equally quick to dismiss any concerns about electronic voting as just another liberal whine.
      This has good-government activists-who simply want more transparency and integrity in the nation's elections-walking a fine line between critiques of voting- machine software and feverish fantasies of right-wing plots. In the past three years legal and activist groups have filed dozens of suits against secretaries of state and elections officials around the country over use of electronic voting systems, including those produced by Diebold. The lion's share of lawsuits, including those in California and Colorado, have been filed or supported by Voter Action of Berkeley. In addition, the Electronic Frontier Foundation (EFF) of San Francisco has sued the North Carolina Board of Elections to force compliance with a state law to make Diebold's source code available for scrutiny; the EFF also defended the rights of Diebold's critics to publish their findings on the Internet. Meanwhile,, also based in San Francisco, has lobbied fiercely for federal and state legislation to require accountability from the electronic voting industry and to require a verifiable paper record of all votes.
      Along the way, these organizations have been both helped and hampered by more accusatory groups. Among them is Black Box Voting of Washington, D.C., whose staff conducts ingenious research into the flaws of electronic voting, but often has been accused of muddying the debate with dark speculation about the true reasons for those flaws.
      As he sat at the front table at the Denver press conference, Berkeley attorney Lowell Finley was all too aware of the need for Efaw to defend his motives. Finley, co-counsel on the Colorado suit and cofounder of Voter Action, has been on a three-year campaign to guarantee that the country's electronic voting machines work the way they're supposed to. He has active lawsuits against the use of touch-screen voting systems in California, Arizona, Colorado, and New York, and he is preparing more for Pennsylvania, Florida, and Ohio.
      But what for Finley is just a matter of computer code and good government awakens in the public a predisposition to apply the filter of politics. To safeguard his credibility, he tries to be as undramatic and technical as possible. In an arena marked by histrionics, Finley's job is to bore people.
      A glance at Finley's resume, however, could lead one to conclude he's just another Berkeley lefty out for blood. He graduated from UC Berkeley's Boalt Hall School of Law and clerked two years for Chief Justice Rose Bird. Building a practice in election law, he represented Jerry Brown and the Green Party and sued Gov. Arnold Schwarzenegger. Then, after reading about flaws in the Diebold security software, he began working pro bono and for reduced fees on challenges to electronic voting systems.
      It was Finley's work for Bird in the years before her recall in 1986 that left him infatuated with the elegance of our political system: representative government, the separation of powers, and the First Amendment. He's a quiet, undemonstrative man who sticks to the facts, sometimes meandering interminably into the minutiae of source code and election laws. He may be trying to end electronic voting as it is currently practiced around the country, but he says he has no time for talk of grand conspiracies.
      "The proper place to focus is the clear evidence that not only Diebold's system but also the other companies' systems are vulnerable to software tampering," Finley states. "What's not relevant is partisan allegations that the company making it may be in league with a political party."
      In early 2003 Finley learned that someone had posted Diebold's source code on the Internet. When security experts examined it, they realized it was, as he says, "not only easily hackable, but seem[ed] to have been written with security that was at best an afterthought." Finley first drew blood with a suit he filed against Diebold later that year, alleging that the company had made fraudulent claims about the security of its systems in order to secure a $12 million contract with Alameda County. A year later the California attorney general's office intervened in the case and took the lead in negotiating a settlement; Diebold eventually agreed to pay $2.6 million to state and local entities.
      Immediately after the national elections of November 2004, Finley and a host of volunteers descended on New Mexico to analyze its election results. They found that 77 percent of "undervotes" in the presidential race-that is, ballots with no vote reported for president-occurred in electronic voting machines, but that only 41 percent of the voters cast their ballots on those machines. In addition, Finley and his cohorts discovered more than 10,000 extra tallies, or "phantom votes," in the ledgers. He formed Voter Action and brought suit over the inaccuracies against county officials and New Mexico's secretary of state. The pressure convinced New Mexico's legislature to return the state to paper ballots as soon as economically feasible.
      Today, Finley spends almost all of his time on electronic voting litigation. He collects attorneys fees for filing or advising on various related lawsuits. He also draws a Voter Action administrative salary from donations and foundation grants. It doesn't pay quite as well as his old elections law practice, but since major electronic voting lawsuits have developed around the country, he's not exactly starving.
      In May 2005-just as 17 counties in California were about to install Diebold election equipment-an obscure Finnish computer expert named Harri Hursti hacked into a Diebold voting machine in Florida, changed the tabulations, and programmed the memory card so the optical scanning machine's display would flash, "Are we having fun yet?"
      The hacking demonstration, which was supervised by local election officials testing the system, was sponsored by Black Box Voting. "Harri cracked it so fast that the cameraman didn't even have his gear up," says Bev Harris, founder of the activist group. "Bip, bip, bip-it was done. He hacked it three different ways in just minutes."
      News of Hursti's stunt spread. "I almost had a heart attack," Aviel D. Rubin told the New York Times. Rubin, a computer science professor at Johns Hopkins University, had first analyzed security flaws in the source code for Diebold touch-screen machines in 2003. "The implications of this are pretty astounding," he said after studying the latest security problems.
      In California, Secretary of State Bruce McPherson commissioned two independent reviews of Diebold's voting machines. Both concluded that additional security measures could mitigate any risk of tampering. So, in February 2006 McPherson granted conditional certification to Diebold's AccuVote-TSX touch-screen machines provided that counties using them followed certain security procedures. Finley promptly filed a challenge, arguing use of Diebold machines would jeopardize the fairness of the November election. (Holder v. McPherson, No. 06-506171.) The case is pending.
      For all of Diebold's software problems, a company spokesperson maintains that in most cases a hacker set on changing voting results would have to sneak into the polling station, open up the back of the voting machine, and fiddle with it. According to David Bear, the spokesperson for Diebold Election Systems, you can't hack into most of its systems from a modem, so the machines are effectively just as resistant to tampering as paper ballot boxes. Whatever the electronic vulnerabilities may be, a hacker would still have to either collude with election officials or chloroform them to access the voting machines.
      Or so the theory went. In 2004, at the request of the state of Maryland, employees from RABA Technologies, a local computer consulting firm, ran security tests on machines about to be used in an upcoming election. Using a dial-up modem, RABA team members were able to break into the Diebold servers that tabulated voting results. Servers from the same generation that proved so vulnerable are still being used in Florida and Georgia. In addition, according to Harris of Black Box Voting, wireless networking capability is built into some Diebold machines currently used in California; if activated, people might be able to hack into the system remotely.
      Those concerns were echoed in a report on voting system security released in late June by the Brennan Center for Justice at New York University School of Law. The report, "The Machinery of Democracy: Protecting Elections in an Electronic World," concluded that all of the most commonly purchased electronic voting systems have significant security and reliability vulnerabilities; that automatic audits, done randomly and transparently, are necessary if proper records are to enhance security; that wireless components on voting machines are particularly vulnerable to attack; and that the vast majority of states have not implemented election security procedures or countermeasures to detect a software attack, even though substantial remedies are available for even the most troubling vulnerabilities of each system.
      But Jennifer Kerns, a spokesperson for Secretary of State McPherson, says concerns about physical hacking into voting machines are overplayed. "Those scenarios assume a lot of unfettered access to the machines, a lot of time alone with the machines, and someone with nefarious intent or a state elections official who would go along," she says. "What Hursti has been able to do is the equivalent of someone saying, 'Why don't I give you the keys to the house, turn off the security alarm, and then come on in?' "
      Bear, speaking for Diebold, uses the same analogy. "It's like saying if I give you the keys to my house and turn off the burglar alarm, don't be surprised if I break into your house," he says. "When you have these 'what if' scenarios that are dependent on election officials committing felonies, you're verging on just scaring and confusing voters. I don't see any other purpose."
      In fact, technologically improved voting systems-including some of Diebold's-vastly reduced the number of voting irregularities, according to a joint study last year by the California Institute of Technology and MIT. After many states eliminated punch-card systems in the wake of the 2000 elections, the number of irregular votes for president dropped in 2004 by about 1 million. In Georgia, which switched to Diebold machines statewide, the share of irregular votes shrank from 3.5 percent in 2000 to 0.4 percent in 2004. Viewed in perspective against the volume of errors Diebold's systems correct, Bear says, the nightmare scenarios begin to look a little foolish. "It's drawing a line between 'what if' and conspiracy, and the facts," he concludes.
      All this Sturm und Drang, and the politics haven't even come into play. Like DeLay, Katrina, and Abu Ghraib, Diebold is one of those words that makes liberals and conservatives see red and scream past each other. Lawyers such as Finley often find their nuanced, reasoned arguments drowning in a sea of irrationality.
      To be sure, Diebold hasn't done itself any favors in shaping its image. While the Help America Vote Act was being drafted, Diebold reportedly gave $275,000 to the lobbying firm of Jack Abramoff, whose crony, Congressman Bob Ney (R-Ohio), was instrumental in writing the legislation. And in late 2003 Diebold CEO O'Dell was one of the Pioneers who pledged to raise more than $100,000 for Bush's reelection campaign, and he vowed in a letter to help "Ohio deliver its electoral votes to the President."
      After the price of Diebold's shares tumbled last fall, investors sued the company for securities fraud and the SEC started an informal inquiry. Earlier this year Ohio Secretary of State J. Kenneth Blackwell revealed that he was a Diebold stockholder even as he was drafting recommendations to implement the Help America Vote Act. Blackwell said he discovered he owned the shares while preparing a required filing for the Ohio Ethics Commission and had just sold them at a loss.
      Critics of Diebold's corporate activities, however, have mostly obscured the shortcomings of the company's voting machines by accusing it of colluding to fix the outcome of the 2004 presidential election, which ultimately turned on 118,601 votes in Ohio. No one is more prone to such allegations than Mark Crispin Miller, a celebrity intellectual and professor of media studies at New York University. In his latest book, Fooled Again: How the Right Stole the 2004 Election and Why They'll Steal the Next One Too (Unless We Stop Them), Miller constructs an elaborate conspiracy; elements include everything from a media plot to downplay stories that reflected negatively on Bush to the wireless communications device the president was accused of wearing during a debate with Senator John Kerry in the final weeks of the campaign.
      Of course, Miller has a place for Diebold in his rogue's gallery. "The most sophisticated aspect of the election fraud in 2004 was the electronic touch-screen voting machines," he declared in a February interview in the magazine Guernica. "Using these machines is tantamount to having a secret vote count. Now all this is bad enough. But what's especially alarming is that all three of the companies that make these machines-Diebold, ES&S, and Sequoia [Voting Systems, Inc.]-all have longstanding, tight links to the Republican Party. They're managed and run by highly partisan Republicans."
      This kind of rhetoric has hardly helped Finley get his work done. "My only concern is that because some people will dismiss books like Miller's as being highly partisan or some kind of sour grapes, they won't be willing to look at the hard evidence about electronic voting," Finley says.
      Nevertheless, even some of Finley's most valuable allies are prone to conspiracy theories. When Finley first sued Diebold, in 2003, his client was Bev Harris, a corporate copywriter who once worked for investigative journalist Jack Anderson before she founded Black Box Voting. Her group was responsible for first publicizing the problems in Diebold's security software, and it then retained Hursti in 2005 to test Diebold's machines. No one has done a more exemplary job of investigating the election equipment industry. But talk with Harris for a few minutes and she'll start hinting at nefarious plots formulated by whichever party controls the local voting apparatus.
      "The architecture of the machine was built so that it makes it very easy to implement something you shouldn't," she says of Diebold's voting systems. "The security has got tunnels through it, and the tunnels aren't mistakes. They're built in. ... The architecture is intentional, and the architecture intentionally makes it easy to change things. ... Why would you make it that way?"
      Harris adds, "We need to get the [Diebold] programmer under oath and ask why he designed it like this. I think he's going to have a pretty hard time answering questions."
      So far, Finley's legal work and careful rhetoric shows signs of paying off. Although roughly 100,000 Diebold touch-screen systems are set to be used in the November elections, pending litigation has the potential to pull the plug on many of them. Diebold's new president and CEO, Thomas Swidarski, has hinted that his company might abandon the voting machine business altogether. California state Senator Debra Bowen (D-Marina del Rey), chair of the Senate elections committee and a candidate for secretary of state, adamantly opposes electronic voting and has promised to make it an important campaign issue. In Maryland, Republican Gov. Robert Ehrlich broke a partisan stalemate to support a bill to replace Diebold machines with optical scanners that read paper ballots.
      Even so, touch-screen voting machines retain their strange capacity to inspire paranoia. In what might be the most bizarre instance yet, local officials in Chicago discovered that Oakland-based Sequoia Voting Systems is actually controlled by Venezuelan shareholders of a holding company based in Curacao. "We've stumbled on what we think could be an international conspiracy to subvert the electoral process in the United States," Chicago Alderman Edward M. Burke told Business Week in June. Sequoia President Jack Blaine immediately countered with a press release: "Contrary to current misguided conspiracy theories, Sequoia Voting Systems is a U.S. company dedicated to providing Americans accurate, reliable and fair voting systems."
      Meanwhile, Lowell Finley is relying on bland pronouncements to see him through. While his putative allies speak of Republican cabals or foreign despots, Finley talks about caution and civics-and quietly prepares his next lawsuit. "Call me corny, but I believe that the Founding Fathers got a lot of things right," he says. "One is the separation of powers, another is constitutional protection for civil liberties, and the last is ensuring that we [have] representative democracy, in which the elected officials who make critical decisions are the people the voters actually choose."
      Chris Thompson ( is a staff writer for the East Bay Express, an alternative weekly in Northern California.

Annie Gausn

Daily Journal Staff Writer

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