Should Voting Machine Makers Be Sued Like Big Tobacco?
By Steven Rosenfeld, AlterNet. Posted November 2, 2007.
Attorneys and activists say taxpayers are due refunds for buying
products that manufacturers knew were defective.
Voting machine manufacturers should be investigated by Congress and
sued by state and local governments across America for knowingly
selling defective products to taxpayers, a growing number of voting
rights attorneys and activists are saying. If successful, these
advocates say the legal action could lead to multimillion-dollar
refunds.
"It is our view at Voter Action that this whole question must be
brought to a new level," said John Bonifaz, the group's legal
director. "It is akin to the scrutiny that finally was applied to the
big tobacco companies, with respect to what they knew and when they
knew the effects of the products that they were marketing."
"A month ago, four citizens filed allegations with Arizona's attorney
general complaining about these issues," said Jim March, a Black Box
Voting board member and voting technology consultant, referring to a
legal complaint that manufacturers sold uncertified electronic voting
machines to Arizona counties. "If he does not respond in 60 days and
does not file a suit, then we can file it."
In 2003, March and Black Box Voting founder Bev Harris filed a similar
whistleblower suit in California against Diebold Election Systems that
was settled for $2.6 million by the state's attorney general.
The latest round of public-interest advocacy has been sparked by
recent reports from independent journalists and state officials
documenting flaws in the manufacturing and performance of electronic
voting systems. Congressional staffers say the product liability issue
may be ripe for inquiry. Meanwhile, legal experts say local
governments could have a strong case for seeking refunds.
"A state or county that purchased a machine would have a
straightforward claim under the uniform commercial code and contract
law if the machines did not perform as warranted so long as the defect
was material -- i.e., it substantially impaired the value of the
machine -- and was undisclosed to the purchaser," said Michael Gergen,
a University of Texas law professor. "I would think a defect that
raised serious questions about the accuracy of a vote count would
substantially impair the value of a machine."
The new advocacy comes against a backdrop of recent disclosures about
the nation's electronic voting systems. This summer, California
Secretary of State Debra Bowen completed a major review of security
flaws in the various voting systems deployed in her state. That review
prompted Bowen to restrict the use of several makes and models in the
state's February 2008 presidential primary. Under Bowen's early August
directives, thousands of electronic voting machines will be pulled
from use.
Then, in mid-August, ex-CBS anchorman Dan Rather, now with HD.net,
presented an investigative report on the shoddy overseas manufacture
of one widely used electronic voting system, the iVotronic made by
Election Systems and Software (ES&S). He went to Manila, in the
Philippines, where employees assembling ES&S machines spoke of using
defective screens and rebuffed efforts to tell management about
quality control problems. As many as 15,000 machines may have had
defective screens, Bonifaz said, which correlates with election
incident reports of voters saying they selected one candidate, but
another choice would register on their electronic ballot. Rather also
produced a second report on how the paper used for Florida's
punch-card ballots in 2000 -- leading to the notorious "hanging chad"
problem -- was known to be of dubious quality by Sequoia Voting
Systems before 2000's presidential vote. ES&S said the problems with
its machines were found and fixed, while Sequoia disputed Rather's
findings.
"Sequoia Voting Systems used 99-lb. tab stock, the proper paper
quality, for the 2000 election punch card ballots and has provided Dan
Rather Reports with substantial documents that indisputably
corroborate the source, delivery, payment, and quality of the paper
used in the 2000 election," the firm said, in an August 14, 2007,
statement.
But Voter Action's Bonifaz said the HD.net documentary raised new
legal issues beyond whether manufacturers sold uncertified machines.
"Certified or not, they knew it was defective at the time," he said.
"What the Dan Rather report reveals in "The Trouble with Touch
Screens" is that these U.S. voting systems companies have potentially
engaged in marketing defective products that have impacted our
electoral processes," Bonifaz said. "That's one angle. We are pursuing
a call for a full congressional investigation into these companies,
whether or not they have committed commercial fraud in the marketing
of their products across the country dating back to Florida in 2000,
and if so, urging Congress to get to the bottom of this transfer and
evidence that it has to the proper authorities for potential
prosecution."
Staff attorneys and investigators at the House Committee on Government
Oversight and Reform, chaired by Rep. Henry Waxman, D-Calif., and at
the House Judiciary Committee, chaired by Rep. John Conyers, D-Mich.,
said they were receptive to information that could support a
congressional investigation but said no such inquiry was currently
under way. A spokesman for the House Committee on Administration,
which oversees elections, said he has heard no discussions of "product
liability as a reasonable next step."
See: http://www.alternet.org/rights/66752/?page=1
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