http://www.the-dispatch.com/apps/pbcs.dll/article?AID=/20051128/APN/
511280948
November 28. 2005 9:45PM
N.C. judge dismisses voting machine case, vendor may pull out
By GARY D. ROBERTSON
Associated Press Writer
One of the nation's leading suppliers of electronic voting machines
may decide against selling new equipment in North Carolina after a
judge declined Monday to protect it from criminal prosecution should
it fail to disclose software code as required by state law.
Diebold Election Systems is worried it could be charged with a felony
if officials determine the company failed to make all of its code -
some of which is owned by third-party software firms, including
Microsoft Corp. - available for examination by election officials in
case of a voting mishap.
The requirement is part of the minimum voting equipment standards
approved by state lawmakers earlier this year following the loss of
more than 4,400 electronic ballots in Carteret County during the
November 2004 election. The lost votes threw at least one close
statewide race into uncertainty for more than two months.
About 20 North Carolina counties already use Diebold voting machines,
and the State Board of Elections plans to announce Thursday the
suppliers that meet the new standards. Local elections boards will be
allowed to purchase voting machines from the approved vendors.
"We will obviously have no alternative but withdraw from the
process," said Doug Hanna, a Raleigh-based lawyer representing North
Canton, Ohio-based Diebold Inc.
Also Monday, California's top elections official said companies
wanting to sell electronic voting machines in that state may be
forced to prove their systems can withstand an attack from a computer
hacker. Secretary of State Bruce McPherson said his office is
planning a hacker test on a machine built by Diebold, which has been
criticized by some activist groups as being vulnerable to outside
hackers who might want to manipulate election results.
David Bear, a Diebold spokesman, said the company was reviewing
several options after Monday's ruling. "We're going to do what is
necessary to provide what is best for our existing clients" in North
Carolina, he said.
The dispute centers on the state's requirement that suppliers place
in escrow "all software that is relevant to functionality, setup,
configuration, and operation of the voting system," as well as a list
of programmers responsible for creating the software.
That's not possible for Diebold's machines, which use Microsoft
Windows, Hanna said. The company does not have the right to provide
Microsoft's code, he said, adding it would be impossible to provide
the names of every programmer who worked on Windows.
The State Board of Elections has told potential suppliers to provide
code for all available software and explain why some is unavailable.
That's not enough of an assurance for Diebold, which remains
concerned about breaking a law that's punishable by a low-grade
felony and a civil penalty of up to $100,000 per violation.
"You cannot have a statute that imposes a criminal violation ...
without being clear about what conduct will submit you to a criminal
violation," Hanna said.
But because no one has yet to accuse Diebold of breaking the law,
Wake County Superior Court Judge Narley Cashwell declined to issue an
injunction that would have protected the company from prosecution.
Cashwell also declined to offer an interpretation of the law that
would have allayed Diebold's concerns.
"We need to comply with the literal language and the statute,"
Cashwell said. "I don't think we have an issue here yet."
The North Carolina Coalition for Verified Voting, a voting machine
reform group, said providing the exemption to Diebold would make it
more difficult to prevent future voting errors.
"If they turn over their source code .... maybe we won't have any
more (voting machine) disasters," said Joyce McCloy of the voting group.
Jill Friedman, a spokeswoman for another company that has expressed
interest in selling voting machines in North Carolina, Election
Systems & Software, said while it had yet to review the decision, it
regularly complies with software escrow requirements in other parts
of the country.
"We are very committed to the state of North Carolina," Friedman
said. "We intend to move forward with the process."
Approved suppliers in North Carolina likely will offer counties
several different optical scan ballot or electronic recording
machines. Any electronic machines must also provide voters with a
paper copy of their ballot, which could be corrected before being
recorded.
Diebold machines were blamed for voting disruptions in a California
primary election last year. And that state has refused to certify
some machines because of their malfunction rate. California officials
have agreed to let a computer expert attempt to hack into Diebold
machines to examine how secure they are.
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