California Atty. Gen. Bill Lockyer on Tuesday said he will join a lawsuit against voting machine manufacturer Diebold Election Systems for allegedly lying to state regulators about the security of some of its equipment.
The lawsuit was filed in November by two voting-rights activists who contend that Texas-based Diebold sold vote-counting equipment to Alameda County that was susceptible to tampering.
The lawsuit seeks damages under the state false claims act, which allows “whistle-blowers” to sue companies for defrauding the state and to share a portion of any damages that the state collects. Lockyer’s staff investigated and decided there was enough evidence of misconduct to take on the lawsuit, a spokesman said.
“These cases boil down to allegations of lying to receive taxpayer money,” said Lockyer spokesman Tom Dresslar. “The allegations are that they didn’t tell the truth to the state or the county in providing electronic voting systems. They misrepresented material facts related to those systems.”
The lawsuit alleges that one version of Diebold’s vote-tabulating software, used to count both paper and electronic ballots, lacked adequate security and was susceptible to tampering. There has been no evidence of tampering in California.
A Diebold official issued a statement that said the company, the nation’s largest producer of touch-screen voting systems, intends to cooperate with the state. He did not address the allegations.
“The company is confident that the state’s decision to intervene will aid in a fair and dispassionate examination of the issues,” said Thomas Swidarski, a Diebold senior vice president. “We will continue to work with California officials in an effort to put these issues behind us, build trust with the state and move forward with ... safe, accurate and reliable elections.”
The lawsuit does not specify the amount of damages sought by the state. Lowell Finley, a Berkeley attorney who filed the lawsuit on behalf of the activists, said Diebold has potential liability of three times the $11 million that Alameda County spent on the equipment. He noted that the state could pursue damages on behalf of other counties that purchased the equipment.
The system’s key vulnerability is that county election workers or others with access to the machines could type in a two-digit code and create a second set of results that would then be forwarded to the state as the county’s official tally, said Bev Harris, one of the activists who filed the case. She said the Diebold vote-tabulating equipment at the center of the lawsuit is used in 19 California counties, including Los Angeles County.
Diebold also makes touch-screen electronic voting devices used in some California counties.
Lockyer’s decision to join in the lawsuit comes six months after a March primary election in which Diebold systems malfunctioned and caused voting delays at polling places in Alameda and San Diego counties. Secretary of State Kevin Shelley later accused Diebold of using software in that election that had not been approved by federal and state regulators and he called on Lockyer to consider pursuing criminal and civil charges against the company.
The attorney general has decided not to file criminal charges, Dresslar said.
Harris said her lawsuit has nationwide significance. She said Diebold has sold the same equipment and software to counties in 30 states.
“I’m absolutely delighted,” she said. “Again, California is leading the nation.”