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Election Systems & Software, Inc. Violates State Certification
DB07:029
FOR IMMEDIATE RELEASE Contact: Nicole Winger
June 21, 2007 (916) 653-6575
Secretary of State Debra Bowen Moves
To Tap ES&S’s Escrowed Source Code After
Vendor Violates Conditions of Its State Certification
SACRAMENTO – Secretary of State Debra Bowen has taken the unprecedented step of
pursuing access to a voting system vendor’s source code located in escrow after the vendor –
Election Systems & Software, Inc. (ES&S) – refused to provide it to the Secretary of State’s
office as part of the top-to-bottom review of California’s voting systems.
“I’m not going to stand by and watch ES&S ignore the State of California and, in particular, the
voters of Los Angeles County by refusing to abide by the certification conditions that were
imposed when ES&S’s InkaVote Plus Voting System was certified last year,” said Bowen.
Secretary Bowen’s letter to Iron Mountain, the escrow facility where ES&S stores its source
code, is attached.
Secretary Bowen announced in February her intent to conduct a top-to-bottom review of the
voting systems certified for use in California. ES&S was first notified 87 days ago – on
March 26 – that it had 30 days, under the conditions imposed in April 2006 by the previous
Secretary of State when he certified the InkaVote Plus Voting System, to provide the Secretary
of State with its equipment, a certified version of the source code, funding to cover the
reasonable cost of conducting the review, and an acknowledgement of the terms of a
confidentiality agreement. The company has provided the Secretary of State’s office with some
voting system equipment, but nothing else.
“ES&S is clearly trying to undermine the review by refusing to abide by the conditions that were
imposed in order for its InkaVote Plus system to be certified for use in California last year,”
continued Bowen. “That leaves me with no choice but to use the authority I have under the law
to require the escrow company to provide me with a copy of ES&S’s source code.”
California Elections Code Section 19103 requires voting system vendors doing business in the
state to place an exact copy of their certified source code for ballot tally software programs into
an approved escrow facility. The law gives the Secretary of State broad authority to access the
source code held in escrow for any purpose deemed necessary to fulfill the provisions of the
Elections Code, including those concerning the review and approval of voting systems.
The California Legislature gave the Secretary of State this broad power to access escrowed ballot
tally source code in 2004 and since that time, a number of other states have adopted similar laws.
However, it appears this is the first time anywhere in the nation that a Secretary of State has been
forced to request a copy of a vendor’s source code from an escrow facility in order to review it.
Of the four vendors that want to use a current version of their systems in California’s 2008
elections, only ES&S has refused to provide all of the information necessary to conduct the topto-
bottom review. The system in question – the InkaVote Plus Voting System – is not used
anywhere in California other than Los Angeles County.
“Every other vendor that has a voting system going through the top-to-bottom review has
provided equipment, source code, an acknowledgement of the confidentiality agreement, and the
funding necessary to pay for the reasonable cost of the review, as required under the certification
of their systems,” noted Bowen. “ES&S is the only vendor that is continuing to ignore both the
law that requires me to conduct a periodic review of the voting systems and the conditions the
previous Secretary of State included when he certified the InkaVote Plus system last year.”
Elections Code Section 19222 is the basis for Secretary Bowen’s top-to-bottom review. It reads
in part:
“The Secretary of State shall review voting systems periodically to determine if
they are defective, obsolete, or otherwise unacceptable. The Secretary of State
has the right to withdraw his or her approval previously granted under this chapter
of any voting system or part of a voting system should it be defective or prove
unacceptable after such review.”
The complete ES&S InkaVote Plus certification document is online
here. The relevant portion
states that ES&S, as the vendor:
“… shall provide, to the Secretary of State, or to the Secretary of State’s designee,
within 30 (thirty) days of the Secretary of State’s demand for such, a working
version of the voting system, including all hardware, firmware and software of the
voting system, as well as the source code for any software or firmware contained
in the voting system, including any commercial off the shelf software or firmware
that is available and disclosable by the vendor, provided that the Secretary of
State first commits to the vendor in writing to maintain the confidentiality of the
contents of such voting system or source code so as to protect the proprietary
interests of the vendor in such voting system or source code. The terms of the
commitment to maintain confidentiality shall be determined solely by the
Secretary of State, after consultation with the vendor.”
When the top-to-bottom review got under way earlier this spring, it was assumed that eight
voting systems would be reviewed. Since that time, four systems have been voluntarily dropped
from the review because the vendors have stated those systems won’t be used in 2008. Those
systems are Los Angeles County’s Micro Tally System, Hart InterCivic System 6.1, and the
currently certified versions of the ES&S City & County of San Francisco and AutoMARK voting
systems. ES&S has stated that it intends to submit upgraded versions of the San Francisco and
AutoMARK systems to the Secretary of State for new certification testing prior to July 1, 2007,
which would enable the systems to be used in the 2008 elections if they are certified.
More information on Secretary Bowen’s top-to-bottom voting system review is at http://www.sos.ca.gov/elections/elections_vsr.htm.
