Judge ready to rule on Ohio voting software claim

ANDREW WELSH-HUGGINS AP Legal Affairs Writer Published:

COLUMBUS, Ohio (AP) -- Ohio would experience election delays and confusion if a judge upholds a complaint alleging new voting software could alter ballots after they are cast, state attorneys warned Tuesday.

The state is asking a federal judge to reject claims raised in a lawsuit a day earlier that the software installed by the state could allow vote manipulation by non-election board officials.

The lawsuit against Ohio's elections chief and Omaha, Neb.-based Election Systems and Software asks the judge to order Ohio not to use ES&S hardware or software Tuesday and to break state contracts with ES&S for equipment to be used this year.

State attorneys representing Secretary of State Jon Husted said in a court filing Tuesday morning that granting this request would thwart the election's smooth operation.

Not using the software would require election boards "to develop, communicate, and implement a new policy and procedures for collecting and reporting the votes in the middle of an election," state attorneys said.

"Such a last minute ruling would unnecessarily thwart the smooth operation of the election and result in inevitable delay and confusion for election officials and the public," assistant Ohio attorney general Richard Coglianese said in a court filing.

The software was installed on ES&S machines at election boards in 25 of Ohio's most populous counties. The software is not on voting machines themselves, but on equipment that tabulates vote totals.

An election board official would use a flash drive to move results from one machine to a second that transmits the data to the Secretary of State's office, according to testimony at a hearing Tuesday before federal judge Gregory Frost.

Ohio had no reason to place the software on county election board equipment, but should have placed it on state equipment only, Michael Duniho, an Arizona-based computer analyst testified by telephone Tuesday.

Duniho said the software could contain viruses that could affect votes. Questioned by an attorney for the state, Duniho said he had never examined the software in question and had no hard evidence that such things could happen with the ES&S software.

Frost said he hoped to rule by noon Tuesday.

A "back door" in ES&S software and hardware creates "an imminent risk" that people not supervised by election boards could "alter the recording and tabulation of votes cast by Ohio voters in the General Election," according to the lawsuit, filed Monday on behalf of Bob Fitrakis, a longtime Ohio elections activist.

Cliff Arnebeck, a Columbus lawyer who filed the lawsuit, proposed a compromise whereby election officials would hand count some results to make sure they hadn't been altered.

A Husted spokesman on Monday called the lawsuit "ridiculous," saying the software allows faster transmission of results from county election boards to the reporting system after polls close. Spokesman Matt McClellan said it has nothing to do with voting machines, only the results that are tabulated afterward.

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Andrew Welsh-Huggins can be reached at http://twitter.com/awhcolumbus.

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