Diebold’s Secret Fears

Okay, it’s not a tale of that vaunted “vast right-wing conspiracy,” but suddenly the case against Diebold’s electronic-voting machines is gaining momentum. Last week, an advisory panel for the California secretary of state recommended ditching the machines for the November presidential elections.

That event was widely reported, including in the Los Angeles Times.

What wasn’t reported locally is Exhibit A, internal documents from lawyers for Texas-based Diebold Election Systems, Inc. In these documents, the attorneys concede that the company used uncertified voting machines during elections before January 28, 2004. The memos also state that such actions would violate both California election law and, by extension, Diebold’s $12.7 million contract with Alameda County. The memos don’t specify a particular election that was mishandled.

These Diebold memos (see links below)were unearthed by the Oakland Tribune and became the basis for a Tuesday story by reporter Ian Hoffman. The source of the memos, the law firm Jones Day, went to court last week demanding a return of the documents. Jones Day also sought to prevent the newspaper from publishing additional articles based on the documents, raising the same First Amendment issues addressed most famously in the Pentagon Papers case. A Los Angeles Superior Court judge ordered the newspaper to return some of them, but the matter is in limbo pending ongoing court motions.

Diebold has conceded that it violated California regulations by using uncertified software in the March 2 election. This misstep occurred even though the Diebold internal memos had previously warned the company precisely of this problem. These memos also talk of greater legal culpability if the company knowingly violated California election law. The documents offer a potentially damning indictment of a company that failed to fly right despite in-house warnings.

A conciliatory Diebold spokesman said his company will cooperate fully with state and local election officials. “We have acknowledged that changes to the software were made,” said David Bear. “Updates had been made to meet state and local needs. We were remiss about making notifications to the state of the changes. But no one has called into question the results of the election.”

Bear’s depiction understates the situation as described by a former Diebold technician who spoke to the Oakland Tribune. The technician depicted a company that was running behind schedule, making untested, last-minute fixes and conjuring solutions on the spot.

At the same time, the internal memos reveal that Jones Day lawyers were exploring strategies to fend off legal challenges. In one memo, they propose a billing schedule for two months’ work ranging from $535,000 to $925,000. Legal machinations were eventually cited as a strike against Diebold. The company “raised frivolous legal objections to providing many [requested] documents and provided other documents in an untimely manner,” according to a Secretary of State’s Office report on Diebold.

The issues with Diebold’s TSx voting machine went well beyond cooperation over paperwork. The state report said Diebold “marketed and sold the TSx system before it was fully functional, and before it was federally qualified,” “misrepresented the status of the TSx system in federal testing in order to obtain state certification” and “failed to obtain federal qualification of the TSx system despite assurances that it would.” In addition, the company allegedly “installed uncertified software on election machines in 17 counties” and “jeopardized the conduct of the March primary.”

The secretary of state’s advisory panel noted that some voters were turned away when poll workers could not get machines started on time in San Diego and Alameda counties.

The Oakland Tribune’s article on the internal memos, published last week, earned an especially pointed reaction from Diebold’s camp. Jones Day, which has been representing Diebold, went to court in Los Angeles the same day demanding the memos’ surrender. The “defendants have wrongfully obtained the protected documents with knowledge that they were private and confidential,” said the Jones Day court filing. “Defendants have unlawfully disclosed and threatened to further disclose part or all of the protected documents, and refused to return them.”

The firm’s attorneys also asked a judge to prohibit the paper from using or referring to the documents in the paper’s coverage. Diebold itself was not directly involved in the legal action. Instead, Jones Day pursued the case as an illegal use of its own confidential papers.

Los Angeles Superior Court Judge Dzintra Janavs sided with Jones Day regarding any materials stamped “attorney-client privilege” or “attorney work product,” but with a notable exclusion. The judge applied the order only to documents that the newspaper had not made public. The newspaper, wisely, had already posted four key documents on its Web site with the article, thus placing them out of reach of the judge’s order.

On the second request — a ban on the use of information contained in the memos — the judge never ruled. “They argued that point for about half the hearing, and then they dropped it,” said attorney Jean-Paul Jassy, who is representing reporter Hoffman and MediaNews Group Inc., which owns the Tribune. “Then they focused on the return of the documents.”

In the three-hour hearing, which lasted into the evening, Jassy said he argued alone against a phalanx of six Jones Day attorneys. “I said they were asking for a prior restraint on speech, and that was unconstitutional under the First Amendment and under the California Constitution. Our position is that nothing the reporter or newspaper has done is illegal — nothing,” said Jassy. “This case involves a constitutional right of the highest order, which is the right of the media to gather and disseminate news about a matter of profound public interest.”

Secretary of State Kevin Shelley has until April 30 to decide whether to ban the Diebold TSx machine from the November election. The outcome could affect millions of dollars in future business for Diebold. The company also faces multimillion-dollar liabilities. The internal memos plainly confront this possibility. As one memo puts it, “Issue: Whether the use of an uncertified voting system is illegal? Short answer: Yes.”

The same memo then deals with whether the company had violated its contract with Alameda County. “Issue: Whether Diebold breached the Agreement if it provided Alameda County with an uncertified voting system? Short answer: Mostly likely . . . If Diebold materially breached the Agreement, Alameda County can terminate the Agreement and sue for damages.”

A later memo concludes that the company probably crossed the line. “During the conference call with Karen Gantt on January 28, 2004, it was disclosed that [Diebold] modified a California state-certified voting system as an experiment to remedy various technical problems with the system . . . [It] failed to obtain California state certification . . . Issue: Whether a California state-approved voting system may be modified for experimental use without the secretary of state’s approval? Short answer: Probably not.”

A furor ensued last year after the chief executive of Diebold’s parent company invited 100 wealthy friends to a Republican Party fund-raiser. “I am committed to helping Ohio deliver its electoral votes to the president next year,” wrote Walden W. O’Dell in the letter. O’Dell belongs to Bush’s “Rangers and Pioneers,” who have each raised at least $100,000 for the president’s re-election campaign.

O’Dell’s letter fueled conspiracy theories about thrown elections. Others accept electronic voting as the future but insist that the technology is far from foolproof. If the machines malfunction — say, by giving votes to the wrong candidate — it may be impossible to recognize the error, absent a paper audit trail. The whole uproar is especially ironic given that electronic voting was championed as the way to prevent a repeat of the 2000 Florida fiasco.

Secretary of State Shelley could elect to shelve all electronic voting. Fourteen counties, with about 45 percent of the state’s voters, rely entirely on electronic systems from Diebold and its competitors. Shelley has to decide by Friday because he is required by law to give local officials six months’ notice. He’ll also have until Friday to decide whether to refer Diebold to the state attorney general for possible civil and criminal prosecution — as recommended by his advisory panel.

But a defense of Diebold emerged from L.A. County, where Diebold machines are just part of the election arsenal. The state’s own spot checks showed 100 percent accuracy in vote recording, said County Clerk Conny B. McCormack, speaking to the Board of Supervisors. “And frankly,” she said, “we know that’s not the case with paper-based voting systems.”

Diebold’s Internal Memos

From the Oakland
Tribune

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