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Ohio Secretary of State Files Counterclaim in Lawsuit with Premier Election Solutions PDF  | Print |  Email
By Ohio Secretary of State Jennifer Brunner   
August 06, 2008
Documents Equipment Malfunctions in Premier Voting Machine Counties

Secretary of State Jennifer Brunner on Wednesday responded to a lawsuit filed by Premier Election Solutions against the Cuyahoga County Board of Elections and the Secretary of State in which Premier seeks a court order that it has met its obligations to the State of Ohio under its voting machine contract negotiated by the former administration.

Secretary Brunner filed counter charges against Premier and urged the Franklin County Common Pleas Court to find that Premier has failed to live up to its contractual obligations.

She seeks damages, including punitive damages, against Premier for voting system malfunctions that have caused problems in at least 11 of the 44 counties using the Premier voting system and for Premier’s claims that warranties on voting equipment have expired.

The Secretary of State’s counterclaim is based in part on new findings that reveal sharing violations on 11 county servers using the Premier voting system. These malfunctions resulted in dropped votes when memory cards were uploaded to the server. The votes were recovered – many hours later, in most cases – thanks to the extraordinary efforts of county board of elections staff.
After being notified and attempting to determine the cause of the problem, Premier issued in late May a product advisory notice that acknowledged the problem but blamed a virus scan program operating concurrently on the server for the problem.

Premier issued a product advisory to its users instructing them to disable antivirus software on vote tabulation servers when uploading votes from memory cards.

The Secretary of State is continuing to test how the problem occurs and is developing mitigation plans to identify and correct the potential for dropped votes. The mitigation plans will be issued to affected boards of elections in the near future.

“Based on the objective evidence, we believe that Premier’s equipment has failed to perform as required by its contracts and according to state law. We have taken this action to recover taxpayer funds spent for voting systems used in half of the state’s 88 counties because Ohioans deserve better,” Secretary of State Jennifer Brunner said.

On May 30, 2008, Premier sued the Secretary of State and the Cuyahoga County Board of Elections, seeking a court declaration that Premier has fully complied with all obligations under various contracts and warranties regarding the purchase of the voting systems.

The Secretary of State was alerted to potential equipment malfunctions by the Butler County Board of Elections in early April. A statewide investigation conducted by the Secretary of State’s information technology staff in conjunction with boards of elections staff revealed similar sharing violations in 11 counties using the Premier systems.

The Secretary of State is engaged in further evaluation of this equipment malfunction with the parties involved. The office is also continuing to test Premier’s undocumented contention that the sharing violation is because of virus protection software that had been certified by the Board of Voting Machine Examiners as part of the Premier system at the time it was introduced in Ohio.

The Secretary of State’s counterclaim includes the following points:
• Breach of warranty

• Breach of contract

• Breach of contract for failing to conform to Ohio law

• Fraud in the inducement

• Request for a determination of the rights of the parties (known as declaratory judgment).
Under the requirements of Ohio law, the counterclaim adds the Ohio Association of Elections Officials and affected county boards of elections (Belmont, Butler, Cuyahoga, Green, Guernsey, Henry, Jefferson, Lucas, Miami, Montgomery, and Stark) as parties to the Secretary’s request for declaratory judgment to allow the court to make a determination of all affected parties’ rights regarding the voting system contracts. Damages are sought only against Premier.

Timeline

• On 04–04–08, the Butler County Board of Elections sent a letter to Premier and copied the Secretary of State, alerting Premier to a serious equipment malfunction that took place during the election. The letter included a copy of the server logs that documented the problem. Since the Premier voting system did not alert board staff to any malfunction, the problems were only found due to the extraordinary efforts of board staff – after an on–site Premier staff person declared the election to be a success.

• On 04–09–08, the Butler County Board of Elections sent a follow–up letter to Premier and copied the Secretary of State, alerting Premier to the reoccurrence of the same voting system computer malfunction.

• On 05–16–08, Premier issued the “Review of Butler County March 2008 Primary Election Issues Report.” The report did not identify a root cause for the malfunctions; speculated that antivirus software might be to blame; and further blamed “human error” though the Premier voting system malfunction was discovered thanks to the extraordinary efforts of board of elections staff after an on–site Premier representative gave the election an “all clear.”

• On 05–23–08, the Butler County Board of Elections sent a response to the Premier “Review of Butler County March 2008 Primary Election Issues Report.” The letter notes that Premier did not identify “a definitive root cause” and found the Premier report to be “highly speculative.”

• On 05–28–08, the Butler County Board of Elections sent a letter to Premier and copied the Secretary of State, requesting “a very detailed report outlining, at a high technical level, your findings of the relationship between McAfee and the GEMS system software.”

• On 05–29–2008, Premier issued a product advisory notice that acknowledged the problem. Premier blamed, without evidence, the McAfee VirusScan antivirus software for the problem. Premier suggested that counties disable antivirus software on vote tabulation servers to fix the problem. However, the servers were certified with the antivirus software installed. In addition, counties frequently upload thousands of memory cards, leading to a significant amount of time the servers would be actively tabulating votes without basic antivirus protections.

• On 05–30–08, Premier sued the Secretary of State and the Cuyahoga County Board of Elections. The lawsuit sought declaratory judgment that Premier did not violate any contracts or warranties.
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