Attorneys for a voting machine manufacturer have asked a state court to narrow a key provision in the rules governing those bidding on the chance to sell equipment to local elections boards.
“The concern was that we were being asked to provide something that was impossible to provide,” said Douglas Hanna, a lawyer at Womble Carlyle Sandridge & Rice working for manufacturer Diebold.
The company is trying to clarify the law rather than have a showdown with the state, Hanna said. But watchdogs who track problems related to voting machines say they are worried that if Diebold gets what it wants, the court will weaken North Carolina’s ability to dissect problems after an election mishap.
The state’s voting equipment has been under scrutiny since 2004.
A series of glitches occurred across the state and nation, but the most significant was in Carteret County in eastern North Carolina. There, computerized machines lost more than 4,000 votes, an error that plunged the close agriculture commissioner race into uncertainty for months.
Responding to that mishap and changes in federal law, the General Assembly this summer tightened rules for voting machine manufacturers.
Under those new rules, the state is seeking firms that produce machines meeting certain requirements — such as that computer scientists may examine them to make sure they work as expected.
The state will choose one or more companies from whom local elections boards can buy equipment. Under state rules, companies holding that contract must place “all software that is relevant to functionality, setup, configuration and operation of the voting system” in safekeeping so it may be examined should something go wrong. Diebold argues that the requirement is too broad.
According to Hanna, the company’s software runs using Microsoft’s Windows operating system. Diebold is worried state rules would require it to submit information related to Windows, something the company can’t legally do.
Hanna said lawyers for Diebold and the state were working on a proposed order that would clarify the issue.
The state’s elections director, Gary Bartlett, referred questions to Susan Nichols, an assistant attorney general who handles litigation for the elections board. She did not return telephone messages last week.
“Their problem was not with us, it was the North Carolina statute,” said Keith Long, who is helping the State Board of Elections establish the voting machine contracts.
He said the part of the law that requires voting machine makers to turn over their computer programs would be important in finding out what happened in the case of another failure such as the one in Carteret. Long said he was unsure what final resolution attorneys for the state and Diebold were crafting.
Voting machine watchdogs are concerned that if Diebold is exempt from submitting the Windows code, it will set a dangerous precedent.
“That Diebold cannot live up to that very reasonable requirement of state law is their own fault,” said Justin Moore, a computer science graduate student at Duke University who has testified before legislative hearings on voting machine security.
Moore said other voting machine manufacturers bidding on the state contract used open-source software — which is freely available — or developed their own operating systems, either of which they are free to turn over to the state.
Moore said he also is worried about a more sinister scenario.
If the state exempts third-party software from disclosure, voting machine vendors might be able to broker license agreements with other companies that allow them to exempt certain pieces of software from the safekeeping requirements, potentially hiding flaws from elections officials.
No one forced Diebold to bid on the state contract, said Joyce McCloy, a Winston-Salem voting rights activist. She said Diebold should have to live up to the rules as written. Those interviewed last week expected a resolution in the case this month.