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A group of voting rights activists—including nationally known labor leader Dolores Huerta—filed a lawsuit in Superior Court in San Francisco this week, seeking to halt the use of the Diebold paper trail electronic voting machines in California, but it is uncertain what affect it will have on electronic voting in Alameda County in the November elections and beyond.  

The group’s 24 named plaintiffs are being represented by Berkeley attorney Lowell Finley and the San Francisco litigation law firm of Howard, Rice, Nemerovski, Candady, Falk & Rabin. The lawsuit names California Secretary of State Bruce McPherson as one of the defendants, along with Acting Alameda County Registrar of Voters Elaine Ginnold and election officials in other California counties contemplating the use of the new Diebold machine. 

Finley is a member of Voter Action, a not-for-profit organization that the group says “provides legal, research and organizing support to ensure election integrity in the United States.” 

The litigation does not ask for monetary damages, but seeks only to block implementation of the newly-certified Diebold TSx electronic voting machine for the November election. It does not address the use of other similar machines, and would not prevent the use of the new Diebold paper-trail machine in the June primary.  

Explaining her role as a plaintiff in the lawsuit, Huerta—who helped found the United Farmworkers of America with Caesar Chavez—said that “voting is sacred,” adding that “we can’t fight for voting rights in other parts of the world if we don’t have it here. One of our biggest national security concerns should be the security of our vote.” 

Speaking at a San Francisco news conference this week, Finley said that while the group “has no intention of walking away from the problems with other electronic voting systems like Sequoia,” the litigation focused on Diebold “because the evidence is so powerful that their machine does not follow California law, and therefore gives us the best opportunity to win an immediate injunction against the use of the machines.” Finley called the Diebold machines “unsafe, unsure, and easily hacked,” and said that the interpretive code used by the machines—the translating code that allows one part of the hardware to communicate with the other—is “particularly vulnerable to hacking. This code can be changed on the fly, after the machines have been certified and tested by the state and the local county agencies. We can’t have trustworthy elections using the Diebold electronic voting machines. And without trustworthy elections, we don’t have a democracy.” 

Last week, after listening to hours of testimony from voting activists seeking an end to electronic voting in the county, a sharply-divided Alameda County Council narrowly approved going forward with negotiations with Diebold and Oakland-based Sequoia Systems for the purchase of electronic voting machines for the November elections. But even supervisors who voted to go forward with the negotiations cautioned that they had reservations about the use of the machines, and said the vote did not necessarily mean that the machines will actually be purchased. 

Supervisors said they would consider other voting system options while the negotiations were taking place. 

Alameda County Council and the Alameda County registrar of voters office had earlier determined that the time was too short to move forward with purchase of new electronic voting machines for the June primary. That election will be conducted on paper ballots that will be scanned by electronic machines at a central location in Oakland on election night. The county has already arranged a loan from San Diego County for electronic voting machines to be located at each precinct for the use of disabled voters and any other voter who asks to use them. 

If use of the Diebold electronic voting machines were to be nullified for the November election by the Superior Court, Alameda County would have the option of negotiating purchase of electronic voting machines from Sequoia and two other voting machine vendors who put up bids. 

California counties faced a twin election crunch this year when new state law went into effect in January, mandating that an auditable paper trail be available for counties using touchscreen electronic voting machines. In the past, touchscreen electronic voting machines—such as the Diebold machines used in recent Alameda County elections—counted the votes internally, and provided no method to manually check if the count went wrong. There have been widespread allegations of fraud in the use of such machines around the country in recent years, most notably in the 2004 Presidential election in Ohio. 

In addition, the 2002 Help America Vote Act (nicknamed “HAVA”) requires that every polling place be provided with a system that allows all disabled persons to vote independently, without the assistance of precinct workers. Some election officials have interpreted this to mean that each polling place must be provided with some form of a touchscreen electronic voting machine, but some voting rights and disabled activists have argued that there are other systems available that would meet federal law and the rights of disabled voters. 

At the San Francisco press conference, co-counsel Finley said that the Diebold machines do not meet the HAVA requirements. “By certifying those machines, the secretary of state threw the responsibility to the counties and to Diebold to make certain that the HAVA mandates are followed,” he said. “We think it’s the responsibility of the secretary of state to make sure those standards are met.” 

Finley also said that the paper audit trail provided by the Diebold machines is not what the new California law requires. Instead of an individual ballot printed for each ballot cast, the Diebold machines print the results on a continuous roll. Finley called that a “toilet paper system” that can “break down under heat because the paper is thermal,” and said that the continuous roll nature of the audit paper makes audits or recounting “extremely difficult and time consuming.”›