Judge rejects claims raised in election-eve lawsuit over Ohio voting software

11/6/2012

COLUMBUS — A Green Party congressional candidate and elections activist provided "zero" evidence to support his claims that new voting machine software could cause ballots to be altered, a judge ruled today.

Bob Fitrakis presented only theories and opinions that the software might cause voting night irregularities, U.S. District Court Judge Gregory Frost said in a 10-page decision issued a few hours after a hearing.

Fitrakis and his attorney had wanted the judge to order Ohio Secretary of State Jon Husted to stop using the software and break the state's contract with Omaha, Neb.-based Elections Systems & Software.

A "back door" in ES&S software and hardware creates "an imminent risk" that people not supervised by election boards could "alter the recording and tabulation of votes cast by Ohio voters in the General Election," according to a lawsuit filed Monday on behalf of Fitrakis, a longtime Ohio elections activist.

Frost rejected those arguments after reviewing comments from a computer analyst testifying on behalf of Fitrakis at Tuesday morning's hearing. The judge also considered filings by Fitrakis and a software expert.

Simply put, Frost said, Fitrakis "has demonstrated zero likelihood of success based on the evidence presented to this Court."

Messages were left for Fitrakis' attorney, the Secretary of State and ES&S.

The state had argued that Ohio would experience election delays and confusion if Frost upheld the complaint.

Not using the software would require election boards "to develop, communicate, and implement a new policy and procedures for collecting and reporting the votes in the middle of an election," state attorneys said.

"Such a last minute ruling would unnecessarily thwart the smooth operation of the election and result in inevitable delay and confusion for election officials and the public," assistant Ohio attorney general Richard Coglianese said in a court filing Tuesday.

The software was installed on ES&S equipment at election boards in 25 of Ohio's most populous counties. The software is not on voting machines themselves, but on equipment that tabulates vote totals.

An election board official would use a flash drive to move results to a computer connected to the Secretary of State's election night reporting system, according to Frost's ruling.

Ohio had no reason to place the software on county election board equipment, Michael Duniho, an Arizona-based computer analyst, testified by telephone Tuesday on behalf of Fitrakis. He said officials instead should have it on state equipment only.

Duniho said the software could contain viruses that could affect votes. Questioned by an attorney for the state, Duniho said he had never examined the software and had no hard evidence that such things could happen with the ES&S software.

"Duniho presented his opinion that a doomsday election-altering scenario could theoretically happen, but had no personal knowledge or experience to support the notion that there was an imminent harm," Frost said.

Cliff Arnebeck, a Columbus lawyer who filed the lawsuit, proposed a compromise whereby election officials would hand count some results to make sure they hadn't been altered.

A Husted spokesman on Monday called the lawsuit "ridiculous," saying the software allows faster transmission of results from county election boards to the reporting system after polls close. Spokesman Matt McClellan said it has nothing to do with voting machines, only the results that are tabulated afterward.