VoterAction Announces the Filing of a New Motion of Preliminary Injunction in State Court

Tuesday 08 August 2006

In a just issued Press Release, VoterAction has announed that California voters are challenging the use of the Diebold TSx touch screen voting system and that they have filed a motion for preliminary injunction in state court. This announcement follows the July 18 announcement that an attempt by the state to move the original suit from the state courts to federal court had failed. The press release follows:

California Voters File New Motion of Preliminary Injunction in State Court to Halt Use of Electronic Voting Systems

Hearing to take place in time for November election.

San Francisco, CA, August 8, 2006 - California voters challenging the use of Diebold touch screen voting systems today filed a motion for preliminary injunction in San Francisco Superior Court, asking the Court to prohibit purchase or use in California of Diebold Accuvote TSx electronic voting machines for use in the November 2006 general election. A hearing on the motion for preliminary injunction is expected on August 31, 2006. Defendants in the case are Secretary of State Bruce McPherson and elections officials in 11 California counties. Elections officials in eight other California counties have been dismissed from the suit, after they signed affidavits that they will not use Diebold touch screens for the November elections.

"This case will be the first time the California Courts have looked at the evidence on the myriad defects of this touch screen electronic voting system, and its failure to satisfy state law for election security. If the California voter plaintiffs win, the Secretary must immediately decertify the problem-plagued machines, and counties will still have time to find an alternative for use in the November election," said John Eichhorst, co-counsel for the plaintiffs, and a partner at the law firm of Howard, Rice, Nemerovski, Canady, Falk & Rabkin in San Francisco.

The lawsuit, Joseph Holder v. McPherson, et al., No. CPF 06-506171, was originally filed on March 21, 2006. In April, the Secretary of State and counties attempted unsuccessfully to have the case transferred permanently to federal court. United States District Court Judge Saundra Brown Armstrong in Oakland ruled on July 18, 2006 that this "removal" of the case from the state court was "legally improper" and remanded the case to state court.

"This case is a powerful and well-documented challenge to the Secretary of State's certification of the Diebold touch screen machines, which is illegal because they cannot be made secure, reliable, or verifiable. Unless the Court acts to prevent it, we are headed for a train wreck in the November election," said Lowell Finley, co-counsel for the plaintiffs and co-director of Voter Action.

The voter plaintiffs' motion for preliminary injunction is supported by sworn declarations from leading computer security experts. Among their findings is that it is easy to install malicious code permanently on the Diebold TSx, and that once installed, this code can defeat any attempt to secure the machine afterward. All a person needs is to obtain a standard PC memory card, to name the files according to Diebold's naming scheme, and to gain brief physical access (a minute or two) to the TSx machine. Many individuals-including Diebold employees, county employees and poll workers - have sufficient access to TSx machines to do this. The system will then automatically install the malicious code which can enable further attacks (such as vote reallocation), protect itself from forensic investigation, and defeat any security measures added at a higher level (such as "hash code" checking). This severe vulnerability went undetected in several rounds of federal and state testing.

"California voters have a right to a transparent, accurate, and verifiable election. The only way to protect this right is to prohibit use of Diebold touch screen electronic voting machines," said Holly Jacobson, co-director of Voter Action. "Optical scan paper balloting presents a less expensive and more secure solution, which is why New Mexico, Michigan and hundreds of counties have switched to this system".

The voter plaintiffs' motion for preliminary injunction is also supported by testimony of computer security experts and professors, Dr. Douglas Jones, University of Iowa, and Dr. Avi Rubin, Johns Hopkins University, both of whom agree that the Diebold touch screen voting system is highly vulnerable to tampering that could alter election results. The motion is also supported by the sworn declaration of Noel Runyan, an electrical engineer with 30 years of experience designing assistive devices to enable disabled voters to have full access to computers. Mr. Runyan explains why Diebold's touch screen machines do not meet the disability access requirements established by the California Legislature.

Voter Action, a non-profit election integrity organization, is supporting the legal action in California. Voter Action supported successful litigation in New Mexico to block purchase and use of the types of voting machines that are most prone to error and most vulnerable to tampering, and is currently supporting similar efforts in Arizona, Colorado, and other states.