ES&S's Ohio Lawsuit: The Public Interest Should Come First
Voting machine vendor Elections System & Software (ES&S) brought suit this week in an Ohio state court, challenging Secretary of State Blackwell's orders regarding voting technology. See here for my initial thoughts. The complaint can now be found here on electionline.org's website. Attached to the complaint are ES&S's contract with the Secretary of State's office, which they claim was breached, and other documents that the Secretary of State has issued on the subject of voting technology. The Secretary of State has responded by releasing its correspondence with ES&S and other vendors, which can be found here.

The crux of ES&S complaint is that the Secretary of State's office has unfairly changed the rules about what voting technology will be used in Ohio, to the the detriment of the company's ability to compete for business in the state.

It's certainly true that Secretary of State Blackwell has reversed course, not just once but twice. His office originally had allowed counties to choose either electronic or precinct-count optical scan technology, which was supposed to be implemented by 2004. In January 2005, after the Ohio legislature passed a bill (H.B. 262) mandating a "voter verified paper audit trail" (VVPAT), the Secretary of State issued a new directive mandating that counties choose optical-scan, citing the costs and uncertainty attending a VVPAT for electronic voting.

Then in April 2005, the Secretary of State reversed course again, going back to the original plan of allowing counties to choose either precinct-count optical scan or voting technology. This new order was ostensibly based on the pending certification of at least one electronic voting system with a VVPAT, made by Diebold, for which the Secretary of State had negotiated a lower price than had previously been offered ($2700 per unit, down from $2965). Voting machines must be certified by May 13, 2005 to be selected, and the counties then have until May 24, 2005 to make a choice.

The most serious allegation in ES&S's complaint is that Blackwell's office gave preferential treatment to Diebold over the other two vendors competing for Ohio counties' business. ES&S seeks a court order that would prevent Blackwell from enforcing his directive requiring counties to choose a voting system, either a precinct-count optical scan or electronic with VVPAT, by May 24, 2005. A TV news story I saw yesterday indicated that ES&S's request for a TRO had been denied, but I've not yet found confirmation of this in any published reports.

My take: While ES&S may have a legitimate breach of contract claim, I think its argument for an injunction stopping Blackwell's directive is weak. Whatever harm ES&S's business interests may have suffered, the first consideration here ought to be the public interest -- not the private interest of a voting machine company.

In my opinion, the relief ES&S seeks would be harmful to the public interest. It's simply not correct to assert that there's no reasonable justification for the Secretary of State's requirement that counties choose a voting system by the end of this month. As a condition of accepting federal funds, the State of Ohio obligated itself to get rid of punch cards by the first federal election in 2006, which will take place next May. It takes time to implement a new voting system and, if counties don't make a choice soon, the ability to make a successful transition by this deadline will be imperiled.

In an ideal world, it would certainly be preferable for Ohio counties to have a choice among electronic voting systems. But Ohio's world is far from ideal. At this moment, it appears that the only available electronic system will be Diebold, given that the other two companies competing for Ohio's business (ES&S and Hart) probably won't have a electronic voting system ready that's certified and meets the requirements of Ohio's VVPAT law by the end of this month. As I stated earlier this week, Diebold's apparent lock on the electronic voting market in Ohio is a direct consequence of the state's ill-advised decision to enact a law requiring the VVPAT.

The Secretary of State and ES&S seem to be pointing the finger of blame at each other, on the question of why the company doesn't yet have an electronic VVPAT system that's certified. But at this point, the question why is less important than the apparent fact that it is so.

It may well be the case that ES&S will "lose its current business" in many if not all Ohio counties if the Secretary of State's May 2005 order stands. That allegation, however, doesn't justify a court order that would impede an expeditious and orderly transition to new voting technology. ES&S may be entitled to monetary relief from the State of Ohio. But in determining whether to issue injunctive relief, the public interest rather than ES&S's economic interests should come first. - posted by Dan Tokaji @ 10:51 AM