08:34 AM Apr. 22, 2004 PT
SACRAMENTO, California -- Diebold Election Systems President Bob Urosevich was forced to defend his company's business practices Wednesday at a contentious meeting in Sacramento before California's Voting Systems Panel that may result in the company's machines being barred from the state.
Faced with tough questions from VSP election officials in the first day of a long-awaited, two-day hearing on an investigation of the company, Urosevich, accompanied by a defense lawyer and a public relations consultant hired specifically to see the company through its California crisis, worked hard to convince the panel that the company has reformed its ways and can be trusted to conduct elections in the state.
But members of the panel appeared to disagree with the company's claims, stating repeatedly that Diebold had been less than forthcoming during the state's nearly five-month investigation into its practices, often producing "frivolous" documents in response to state queries or responding in an untimely manner.
At issue is whether the state should decertify Diebold's voting systems and bar the company from doing further business in the state as a penalty for violating California election law. Last November, the state discovered that Diebold had installed uncertified software on its voting machines in 17 counties without notifying state officials or, in some cases, even county officials who were affected by the changes.
If decertified, the company would lose millions of dollars in current and potential future county contracts. The company already has statewide contracts with Georgia and Maryland worth $54 million and $56 million, respectively. Other states and counties across the country are waiting to see how California responds to the issues before it.
The panel is expected to announce its recommendation to Secretary of State Kevin Shelley on Thursday. An anonymous source in the secretary of state's office indicated that the panel is leaning toward decertification. The source said the company had not helped its case by its continued resistance to offering candid and thorough responses to queries from election officials and the media.
"From all appearances, it acts like it doesn't give a flying fig," the source said.
A packed audience of county election officials, computer scientists, voting activists and activists for the disabled community, who have all been waiting months for the hearing, sat patiently through the six-hour meeting, during which the VSP addressed parts of a lengthy report it had released on its investigation.
The report detailed how Diebold repeatedly engaged in "overly aggressive marketing" of machines before its systems were federally certified, "misrepresenting" the status of certification and implying to officials that certification was imminent when it was not. This put several counties in a bind weeks before the March primary when it became clear that new systems the counties were prepping for the election still had not been federally certified.
The panel also noted that Diebold continued to upgrade its system while undergoing certification, thus delaying the certification process in some cases or making it moot. The company also installed a last-minute peripheral device in several California counties that was "not ready for prime time" in the words of one election official, even though the company insisted it was.
The device, a smart card encoder that programmed voting cards with the appropriate ballot for each voter, produced major problems in San Diego and Alameda counties during the primary when depleted batteries in the devices prevented them from working properly. As a result, several hundred precincts failed to open on time, thus disenfranchising voters who were turned away from the polls.
When asked if the company had known about potential problems with the battery design before the election, Urosevich insisted he learned about the problem only after the fact. But a contract worker hired by Diebold to help configure its systems in California told the panel that the faulty design had caused battery problems for workers in the warehouse and that Diebold had been aware of it before the election.
"Diebold essentially beta-tested its new smart card encoder on San Diego and Alameda counties," said Kim Alexander, founder and president of the California Voter Foundation. "Potentially thousands of voters were disenfranchised because of it."
Urosevich and his lawyer, from the Los Angeles firm of Jones Day, bridled at suggestions that they were being less than honest about what they knew and when they knew it.
Urosevich read a statement acknowledging problems with certification issues and apologizing to the voting panel for any embarrassment the company may have caused election officials.
But, he said, "There was no improper intent. Diebold's intent has always been to assist counties to run secure and accurate elections."
He said Diebold was taking steps to ensure that the company scrupulously complied with rules and regulations in the future. Jones Day lawyer Kevin Dorse also took issue with the panel's suggestion that Diebold had been deceptive about certification issues, saying that federal certification processes were responsible for delays that were out of the company's hands.
Diebold's problems, however, were exacerbated by the embarrassing release this week of several confidential documents leaked from its legal correspondence with Jones Day and posted online by voting activists (requires download), which indicate that the law firm warned the company last November that its installation of uncertified software violated California election law as well as the terms of its contract with counties. The documents, some of them dated from September 2003, outlined strategies for how Diebold intended to answer tough questions about its conduct over the last year and avoid legal repercussions.
Diebold spokesman David Bear would not comment on the contents of the documents or acknowledge them as authentic, though he did refer to them as "stolen" property.
Voting activist Bev Harris, whose discovery of the Diebold source code online last year sparked the controversy over the security of electronic voting systems, called for the company's decertification.
"How many bites of the apple do (they) get? Diebold has out-and-out lied. They've been aware that they've been behaving in illegal ways. The trust is gone," said Harris, who was trailed to the meeting by a documentary crew filming for the Independent channel in Great Britain.
Her sentiments were echoed by Electronic Frontier Foundation staff attorney Cindy Cohn.
"This was no momentary lapse ... or emergency situation," she said, referring to the company's installation of uncertified software. "Breaking California election law appears to have been 'business as usual' at Diebold."
She added that the leaked legal documents indicate that the company's efforts over the last months "appear not to be focused upon fixing the problem but instead on paying their attorneys thousands of dollars to find ways to evade responsibility for breaking the law."
Diebold isn't the only firm facing decertification. In March, two state legislators called on Shelley to decertify all touch-screen voting machines in the state before the November presidential election and keep them decertified until the state can obtain machines that produce a voter-verified paper audit trail.
The VSP is expected to hear testimony on this issue Thursday.
The anonymous source in the secretary of state's office said, however, that decertification would likely focus only on Diebold.
"It looks like its pointing to possible de-certification of a particular entity rather than a blanket decertification" of touch-screen machines, he said.