Ohio Candidate Sues to Block Electronic Voting Machines

Electronic voting machines being used by Ohio in today’s election contain a software “back door” that could allow manipulation of the results, a Green Party candidate for one of the state’s 16 U.S. congressional districts claimed in lawsuit.

Robert J. Fitrakis filed papers yesterday in federal court in Columbus, seeking an order blocking the use of the machines and the software in vote counting. Named as defendants in the case are Ohio Secretary of State Jon Husted and Omaha, Nebraska-based Election Systems & Software Inc.

There’s an “an imminent risk that persons who are not under the supervision and control of defendant Husted” or the county boards of election may exploit the alleged breach to “alter the recording and tabulation of votes cast,” Fitrakis said in the court filings yesterday.

U.S. District Judge Gregory Frost held an evidentiary hearing on the injunction request, after which he said he’d rule later today. In court, Fitrakis’s lawyer asked the judge to consider the alternative remedy of a sample hand-count of ballots in counties where the software is being used. The complaint contains no direct statement of knowledge as to the existence of the alleged electronic back door.

‘Ridiculous’ Allegations

Matt McClellan, a spokesman for Husted, rejected the allegations as “ridiculous.”

“We did not touch, update, patch or do anything to the tabulation systems or the voting machines,” McClellan said yesterday in a phone interview. “There’s no vulnerability to the system whatsoever.”

McClellan said a “reporting tool” was installed that is intended to ease the reporting of results tonight.

Election Systems & Software called the case “frivolous and without merit,” in an e-mailed statement, saying it was filed “with the sole intent of undermining voter confidence.”

“We are confident that the pending legal proceedings will find the basis of this claim to be false,” the company said.

The U.S. presidential contest between President Barack Obama and ex-Massachusetts Governor Mitt Romney has been marked by two dozen lawsuits in the past six months over voter rules, including photo ID requirements and limited poll hours. Today’s election may bring a new wave of litigation over the casting and counting of ballots.

Machine Breakdowns

Voter rights advocates and lawyers for the candidates may initially head to court to keep polls open longer because of machine breakdowns, to make up for Hurricane Sandy’s aftermath, or to bar partisan poll-watchers challenging the rights of some to vote, said Edward Foley, a law professor at Ohio State University.

Democrats in Florida have sought to extend early voting hours there, and in Ohio they are challenging last-minute restrictions on provisional ballots. Litigation over such ballots, usually cast when a voter’s credentials are challenged or inadequate, and counted after the polls close, may at the very least push resolution of the race past Nov. 6.

Clifford Arnabeck, a lawyer for Fitrakis, said in a phone interview yesterday that he would present testimony from individuals whom he said had knowledge of prior instances of electronic voting machine tampering by Republican Party operatives in other states.

‘Flip’ Votes

“This may well be the principal method that those who plan to manipulate the election will flip a lot of votes,” Arnabeck said.

Testifying by telephone today, former U.S. National Security Agency worker Michael Duniho told the court an electronic voting machine is “a black box.”

“It’s difficult to tell what’s in it,” said Duniho, who told the court he worked for the NSA for 37 years and is trained in computer security. “You have a statement of what the software is intended to do, but what the software actually does is completely unknown,” until the source code can be examined and tested thoroughly.

On cross-examination from state attorney Richard Coglianese, Duniho said he hadn’t tested any of the Election Systems software and had no specific knowledge of the existence of a “back door” that would allow vote tallies to be manipulated.

An NBC News/Wall Street Journal/Marist College survey of likely voters in Ohio released Nov. 3 showed Obama ahead of the former Massachusetts governor 51 percent to 45 percent. The survey had a 3.1 percentage point margin of error. No Republican presidential candidate has won election without carrying Ohio.

The case is Fitrakis v. Husted, 12-cv-01015, U.S. District Court, Southern District of Ohio (Columbus).

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