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by Bob Fitrakis and Gerry Bello
October 31, 2012

Why did the Ohio Secretary of State Jon Husted’s office, in an end run around Ohio election law, have “experimental” software patches installed on vote counting tabulators in up to 39 Ohio counties? Voting rights activists are concerned that these uncertified and untested software patches may alter the election results.

During the 2004 presidential election, the Free Press reported that election officials observed technicians from the ES&S voting machine company and Triad computer maintenance company installing uncertified and untested software patches on voting machines in 44 Ohio counties prior to the election. Software patches are usually installed to “update” or change existing software. These software patch updates were considered suspect by election protection activists, in light of all the voting machine anomalies found during the 2004 election in Ohio.

The Free Press has learned that Election Systems and Solutions (ES&S) installed the software patches that will affect 4,041,056 registered voters, including those in metropolitan Columbus and Cleveland (click here for spread sheet from verifiedvoting.org).

A call to the Ohio Secretary of State’s office concerning the software patches was not returned by publication deadline. Previously, the Free Press requests for public records, including voting machine vendor contracts, have been stonewalled by Office Secretary of State John Husted’s office through his public records officer Chris Shea. Through other channels, the Free Press has obtained and has posted the possibly illegal full contract online here (see page 17).

The contract calls for ES & S technicians and county poll workers to “enter custom codes and interfaces” to the standard election reporting software just as was done with the controversial 2004 Ohio presidential election.

Last minute software patches may be deemed “experimental” because that designation does not require certification and testing. Un-certified and untested software for electronic voting systems are presumably illegal under Ohio law. All election systems hardware and software must be tested and certified by the state before being put into use, according to Ohio Revised Code 3506.05. By unilaterally deeming this new software “experimental,” Secretary of State Husted was able to have the software installed without any review, inspection or certification by anyone. ES & S, for their part, knows that this software will not be subject to the minimal legally required testing as stated in the contract on page 21 (Section 6.1).

The contract specifically states that this software has not been and need not be reviewed by any testing authority at the state or federal level. Yet, it is installed on voting machines that will tabulate and report official election results, which Ohio law forbids. Based on the Free Press reading of the contract, this software is fully developed, being referred as versions 2.0.7.0 and 3.0.1.0. Thus the only thing making this software “experimental” is the fact that it has never been independently certified or tested.

In preparation for the upcoming general election in late April, the Free Press began requesting public records from all 88 counties in Ohio in order to build a broad database of every vendor and piece of equipment used in the state of Ohio. Aside from some minor delays, all 88 county jurisdictions have complied.

However, the office of the Ohio Secretary of State however, has not complied with any requests for lists of equipment, contracts with vendors, schedules of payment and even the identities of the vendors. The Free Press’ public records requests, under ORC 149.43 (The Public Records Act) have been ignored by Chris Shea, presumably acting on behalf of Secretary of State Jon Husted. Now that the Free Press has obtained the contract, it seems clear that the secretary of state’s office was hiding these last minute “experimental” uncertified software installations.

On page 19 of the contract, terms require the various county boards of elections to purchase additional software from ES & S if they are not compatible with this new “experimental” statewide tabulation and reporting system. This unfunded mandate clause illegally bypasses individual counties rights to make their own purchasing determinations.

The controversial software will create simple .csv files like those produced by spreadsheet programs for input into the statewide tabulation system. According to the terms of the contract, data security is the responsibility of each local board of elections: “…each county will be responsible for the implementation of any security protocols” (see page 21 of the contract).

Most county boards of elections do not have their own IT departments and are reliant on private partisan contractors to maintain and program the electronic voting systems. These piecemeal implementations of security protocols would also be untested and uncertified.

Voting rights activists believe this whole scheme may create a host of new avenues of attack on the integrity of the electronic vote counting system. The untested and uncertified “experimental” software itself may be malware. Public trust in the electronic vote counting system has emerged as the key issue in the Ohio presidential election.

The Free Press will be updating this breaking story as more information is obtained and analyzed, so stay tuned. The story for now is that the Secretary of State in the key swing state in the 2012 presidential has installed “experimental” uncertified and untested software to count a large portion of the Ohio vote.