Update: Just as this post went out, the ruling was released—the judge has rejected the claims.

While we've covered e-voting issues for years, it really did seem like the issues with e-voting machines were less this year than in the past. Except... maybe not. ES&S, the largest vendor of e-voting machines, who has a long and scary history of problems with their machines, is embroiled in yet another controversy, in which Ohio's Secretary of State, Jon Husted, had the company install "experimental" software patches on ES&S vote counting machines (not the voting machines themselves, but the tabulators). The software is uncertified and likely violates the law.

Husted's office has not inspired confidence with its responses to these charges:

The Secretary of State’s office has been evasive and contradictory in response to questions about the minor seeming change that involved converting results from xml to csv format. Apparently, by calling the software “experimental,” Husted was attempting to avoid any approval, review or testing of the new software. But as the federal Elections Assistance Commission titled a memo back in February , “Software and Firmware modifications are not de minimis changes.”

In the meantime, a court is set to rule on the challenge to the software any time now, and a ruling against the software patches could make counting the votes tonight a more complicated process -- but considering the concerns, a reasonable solution. Today, the judge rejected the challenge to the software.

Oh, and while this story is making the rounds, we have no idea what to make of the video of an e-voting machine that votes for Romney if you click on Romney or Obama. There have been some questions as to whether the video was real, but reporters have confirmed that the machine (in Pennsylvania) has been "taken off line." The writeup on that one suggests it's not just a touch screen calibration issue, because the guy who filmed it said that if you touch other candidates, the same offset doesn't happen.

For many years, we've been reporting on stories of e-voting malfunctions, mainly from Diebold/Premier, ES&S and Sequoia. For a sampling of such stories click on any of the following links: 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25. And that's just the first 25 I found (there are lots more), and only cover stories that I actually covered. I'm sure plenty more glitch-infused elections have happened. Given all these glitches and errors, and a seeming lack of followthrough to make sure they don't happen again, a group is asking Congress to authorize a public national database of e-voting election problems.

The really scary part is that the researchers who wrote the report note that many of the problems are repeats -- a problem happens in one location, but another voting district uses the same machines configured in the same problematic way in another election, totally unaware of the problems it will cause. It's still amazing that after nearly a decade of examples of problems with e-voting, just how little has been done to fix these machines.

The election situation in South Carolina keeps getting stranger. Last week, we noted how the controversial election of Alvin Greene, a broke, out of work guy currently facing felony obscenity charges, who did no campaigning and no advertising of his campaign, had people looking at the e-voting machines in the election as one possible culprit. The ES&S iVotronic machines used in the election have no paper or audit trail, so there's really no way to go back and check, but the differences in voting patterns between the e-votes and absentee ballots certainly raised some eyebrows, as did a test of randomness in voting results using Benford's law (a useful tool for suggesting data was faked).

Now, reader Pickle Monger alerts us to the news that the previously expected winner of the campaign, Vic Rawls, is claiming that the ES&S e-voting machines used in the campaign were bought secondhand from Louisiana after Louisiana outlawed their usage:

Third is the well-documented unreliability and unverifiability of the voting machines used in South Carolina. It is worth noting that these machines were purchased surplus from Louisiana after that state outlawed them.

In response, the state is insisting there is no truth to this claim at all:

South Carolina's election commission begs to differ about the provenance of the voting machines. Spokesman Chris Whitmire says the state's 12,000 iVotronic voting machines were bought brand-spanking-new from Election Systems and Software, an Omaha-based behemoth that boasts of operations in 39 states.

Rawls' campaigns' response is hardly reassuring:

"That was what the word around the state was -- heard it from several people."

In other words, total hearsay. I'm all for pointing out the problems of e-voting systems, and ES&S certainly does have an exceptionally long history of having problematic machines that have been decertified in certain states, but claiming that such machines were used in South Carolina without any evidence other than "heard it from several people," seems pretty silly.

Of course, South Carolina's election commission has its own credibility problems. Apparently, its been telling local news media that the iVotronic systems do have an auditable paper trail. They don't. They have a paper tally, but that's not the same thing.

Either way, if you've been following the whole e-voting mess for many years, this sort of situation was bound to happen. Even if it turns out that e-voting machines were not the problem, the very lack of a voter verifiable paper trail, combined with massive security problems and ridiculous levels of secrecy from the e-voting companies has created a world in which no one actually trusts those machines. Even if the results were accurate, the voting machine companies' own actions have created so much doubt in people's minds, that they don't trust the results at all.

As was rumored at the end of last year, the US Justice Department has decided to break up Election Systems & Software (ES&S), the dominant e-voting provider in the country. You may recall that just a few months earlier, ES&S (who has a long and troubled history of inaccurate, buggy and insecure e-voting machines) had purchased the remains of Diebold's e-voting business for just $5 million. Of course, Diebold also had a long and troubled history of inaccurate, buggy and insecure e-voting machines, so the two made a perfect match. In both cases, the companies relied on security by stonewalling -- insisting that nothing was wrong, despite lots of proof to the contrary, and refusing to let third party security experts ever look at their machines. Rather than breaking up the companies, why don't the feds just require that any e-voting machine use open source software that can be tested by anyone?

After getting hammered publicly for having e-voting machines that didn't work well and had serious security problems, Diebold tried sell off its e-voting division for years with no luck. It then tried to change its name to Premier, hoping people wouldn't realize it was Diebold. In the end, Diebold finally found a buyer in ES&S, the other large player in the market. Between them they own 70% of the US market, apparently. And that's leading to some concern. The Justice Department is apparently looking into the deal to see if it should be unwound, out of fear that ES&S will jack up prices.

Honestly, I don't see what the value is in unwinding the deal. Then you'll have two awful e-voting companies with terrible track records with security and accuracy, rather than one. Instead, why aren't we focusing on requiring truly open solutions so that we actually verify that an e-voting system is both secure and accurate?

Michael Scott alerts us to the news that e-voting firm ES&S has sued two former employees, claiming copyright infringement over code they took with them from ES&S, along with additional trade secrets. I have no idea whether or not this is true, but all I can ask is "why?" As has been documented time and time again, ES&S's e-voting code has a ton of problems. Remember, these are the machines that have been found to have serious security vulnerabilities, with some serious bugs, such as adding votes to the wrong election, calibration problems that lead to people voting for the wrong candidate, and bugs that resulted in phantom votes. And ES&S is the company that knew about some of these bugs, and let them be used in elections anyway. So if you were going to go off and start your own e-voting company (and it's not clear these individuals did that), wouldn't you be better off starting from scratch?

Ah, Diebold. One of the "big three" e-voting providers out there, its name was the first one that got associated with the problems of e-voting machines, despite problems being found across the board in players in that space. I could never understand why the company continued to fight and deny problems with its machines after so much evidence was presented against them. The smart move would have been to admit that the machines had problems, work with security experts to solve them, and come out with better, safer machines. But that's not what happened. Instead, it stonewalled, denied problems, mocked those who exposed security flaws and kept pushing out questionable machines. Eventually, the stories got so bad, that Diebold realized it was having a seriously negative impact on its other lines of business (including ATMs), so it renamed the e-voting division "Premier Election Solutions" (as if people would forget) and went about trying to sell the thing off -- though, for years it couldn't find any takers.

It took a while, but Diebold has finally found a buyer. ES&S has purchased Diebold's e-voting business for a mere $5 million plus some outstanding revenue. In classic Diebold fashion, the company has announced that it "would not be answering questions about the sale" -- because that's how you go about rebuilding trust.

Meanwhile, it's not like ES&S is any better. It, too, has had massive problems with its e-voting machines, while the company has a history of stonewalling attempts by gov't officials to review their code. Oh, and there's this: company memos showed that the company knew about some of the problems with its voting machines that were used in elections. And the most fun of all? When we questioned why e-voting companies didn't allow independent security researchers to examine machines, an ES&S employee showed up in our comments to call us all idiots.

Now, with the combined ES&S/Diebold/Premier, a ridiculous large percentage of the country's e-voting machines now belong to one company, with an amazingly long family tree of faulty machines and a history of attacking anyone who points out those flaws.

Another election using e-voting machines... and another set of stories concerning massive problems. Slashdot points us to the news that a local election in Rapid City, South Dakota, was about to go to a runoff after no one hit the 50% mark, when someone finally noticed that the 10,488 vote total seemed a bit high. So, they went back and recounted the actual ballots, and discovered only 5,613 people voted, but the software added up the votes incorrectly. Once again, we're left wondering why it's so difficult to do simple arithmetic -- and why e-voting companies like ES&S are so against allowing experts to look at their source code and maybe help catch some of these bugs before they totally screw up an election.

ES&S, of course, has been especially bad when it comes to transparency, despite numerous stories of glitches. It's also the company that had an employee stop by here on Techdirt, call us all "idiots" while insisting that the machines were perfectly fine and that the machines are "extremely scrutinized and very reliable" and anyone questioning their reliability was simply relying on "conspiracy blogs." Of course, his focus was on the idea that the machines were "hacked" -- a charge we never made. Our concern -- and the concern of many others -- are that the machines are unreliable, prone to errors and have serious security and process flaws. Considering how many stories we've seen of problems with those machines in real elections, that seems to be proven fact -- not "conspiracy."

And yet, ES&S has always resisted any real scrutiny. When California looked to investigate e-voting machines more fully, ES&S was the one vendor who held out for months beyond the deadline, before finally submitting its source code along with a threatening letter about how it would personally sue the Secretary of State if any of its trade secrets got out. Of course, soon after this, we found out that even its certified code didn't much matter, since it had given California machines with uncertified code for an election. In the end, not surprisingly, ES&S machines were found to have significant problems, and were decertified in California. Perhaps South Dakota should have taken note.

Following on our earlier story demonstrating the calibration errors on ES&S e-voting machines in West Virginia, comes this report that notes the calibration controls are not protected and accessible to anyone. In other words, a pollworker or even a voter could modify the calibration to make it more difficult to vote for a particular candidate. While the overall risk may be minimal (voters would still see whether the correct candidate was highlighted), it could significantly impact voters' confidence with the accuracy of these machines and the sanctity of the election. It's still rather amazing how many stories we see on a near daily basis concerning how badly these machines are built.

If someone pitched a movie based on e-voting machines that work as bad as the ones being used in the current election, the story would be dumped as being unrealistic. But truth is, indeed, often stranger than fiction. You may recall on Friday that we had a post about problems with e-voting machines in West Virginia selecting the wrong candidate when voters touched the screen. Various officials rushed to insist that there was absolutely nothing wrong. One, the local county clerk, Jeff Waybright insisted that the problems were "the result of voter error."

Well, it appears that a group called Video The Vote went and visited with Mr. Waybright as he showed them how the e-voting machines work, and perhaps the "human error" is on Mr. Waybright's part. The beginning of the video is troubling enough, as he brushes aside concerns while he shows a miscalibrated machine. He demonstrates how he clicks on one candidate and another is highlighted, in a tone of voice that suggests why would anyone possibly be upset or annoyed if that happened? He then oddly thinks the fact that his wildly miscalibrated machine enhances his point because when he clicks on Barack Obama's name, the actual name highlighted isn't McCain (of course, it's not Obama either, but he doesn't seem troubled by this). Waybright seems to think that the only complaint people are making is the fact that some tried to vote for the Democratic ticket and saw the Republican ticket show up -- when the real concern is simply the fact that when you touch one name, someone else's name is highlighted. Democrat or Republican really isn't the issue here.

However, then things get worse. After mocking the idea that anyone clicking on a Democratic ticket vote would get the Republican ticket vote, he shows how to correctly calibrate the machine, showing how easy it is to fix the "problems" of the miscalibrated machine. When he's done, to prove it works, he touches the box to vote for a straight Republican ticket ticket... and, wouldn't you know it, Ralph Nader's name is highlighted as the voter's choice. His response? "Oh, that's out of calibration!" as if it was no big deal, apparently missing the fact that he had just calibrated the machine. He then seems to think none of this is a big deal, because voters will see the misvote before they submit it, apparently unaware of the idea that many people are already quite distrustful of these machines, and seeing them highlight the wrong name over and over again will make them seriously question the legitimacy of the election.