anti-virus software the county had installed on systems running the election software, but eventually conceded the problem was a logic error in its own software and sent a notice to 29 other states using its voting systems advising them how to work around the problem.

What the notice didn’t mention was that Premier’s voting system had experienced a similar problem years earlier in 2004 in Illinois and that problems in Ohio might have been avoided had the company acted sooner.

In 2002, election officials in Bernalillo County, New Mexico, discovered they’d also been kept in the dark about a known issue with their machines, after their voting system appeared to drop some 12,000 ballots.

Although 48,000 people had cast ballots, tabulation software for touch-screen machines made by Sequoia Voting Systems recorded no more than 36,000 votes in any race, including the governor’s race. Sequoia admitted it was a software problem and disclosed that officials in a Nevada county had experienced the same issue weeks before the election, and received a patch to fix it — a patch the company neglected to install on the system in New Mexico. In fact, Sequoia had even failed to inform its employees in New Mexico that a problem occurred with the system in another state.

These are two of more than a dozen examples cited in a new report arguing for the federal government to establish a public clearinghouse to track voting machine problems nationwide and ensure that voters are not disenfranchised by faulty systems.

The report, released Wednesday by the Brennan Center for Justice, calls on Congress to provide authority for the federal Election Assistance Commission (EAC) or some other federal agency to establish and maintain a publicly searchable database and to require voting machine vendors to report problems to the database so election officials can take steps to prevent failures from repeating. The clearinghouse would be similar to ones maintained by the National Highway Traffic Safety Administration and the Food and Drug Administration, which collect and make publicly available information from consumers, health-care providers and others about problems encountered with consumer products and drugs.

Despite the fact that voting machines are critical systems, the makers of the machines — unlike the makers of other critical systems like automobiles and airplanes — are not currently required to report malfunctions of their products to any government agency, let alone to election officials who purchased the machines with taxpayer money, writes Lawrence Norden, senior counsel at the Brennan Center and author of the report.

There is also no government agency with strong authority to investigate voting machine failures when they do occur, to alert election officials about voting machine problems that are uncovered or to require voting machine vendors to fix them. As a result, there is no central location where election officials in 4,600 jurisdictions across the U.S. can find information about problems encountered with the brand of machines they use.

“The consequence of this lack of oversight is predictable,” Norden writes. “Voting systems fail in a particular county in one election, and then again later, under similar circumstances, but in a different locale. These repeated failures disenfranchise voters and damage public confidence in the electoral system.”

The Center reviewed media reports of voting machine problems spanning the last eight years and found a number of cases where problems in one election district repeated in other districts and resulted in the temporary or permanent loss of votes – sometimes tens of thousands of votes.

Although the EAC assumed the task of overseeing the federal certification of voting machines in recent years, it maintains that it has no authority over machines that were certified prior to its involvement in certification. And since the EAC only issued its first certification in February 2009, this means it has no authority over millions of voting machines previously certified and now being used in the U.S. Even in the case of new machines the EAC certifies, it currently has little power to force companies to disclose problems that later crop up with machines or fix them.

Only states have real enforcement power over voting machines and vendors by passing local laws that hold vendors accountable, but few states are bothering to do this, according to the report. California recently passed a law requiring vendors selling systems in the state to notify the Secretary of State and local election officials of any “defect, fault or failure” within 30 days of discovering a problem. Norden calls it “the best legislative attempt we have seen, to date, to address the problems.” But Governor Schwarzenegger has yet to sign the bill. He vetoed a previous version of the legislation last year.

Aside from state legislation, local election officials could also assert power by negotiating stronger contracts with vendors to hold them responsible for problems that occur. But officials generally fail to do this and even sign contracts that bar them from publicly disclosing problems they discover with machines.

Absent action by the federal government or state governments, Norden writes that a non-governmental organization — such as the National Association of Secretaries of State — could create its own database to aggregate reports from election officials. At the very least, this would give election officials an early warning of problems with machines elsewhere. But Norden notes that this would require whistleblower protection for officials who report problems, to prevent vendors from suing them.

Alternatively, election officials could pressure vendors to create their own databases of problems where election officials could review product advisories, software patches and workarounds, as well as complaints from other election officials around the country and information about lawsuits and warranty claims

“County and state officials can and should demand this voluntary action from vendors now, in time to make a difference for November’s election,” Norden writes.

Authors: Kim Zetter

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