Thursday, December 6, 2007

Ohio Voting Machines And The Potential Of Product Liability Lawsuits For Recall, Refund

Sample Lawsuits Delivered by Ohio Election Justice Campaign
to the Secretary of State and other Elected Officials on November 30, 2007

By Patricia “Paddy” Shaffer
Director, OEJC
December 2, 2007

A Voting Machine Jingle:
It was the final day of testing and all through the state, voters were praying that the machines would just go away, up on the tables they saw with a grin, a package of real paper ballots and pencils and pens, hand counted at the precincts, by locals they knew, and the outcome was auditable, no longer would the voters be screwed.

OEJC Holiday Jingle for the Project Everest testing.11-30-2007

On November 30, 2007, the final day of the testing of Project Everest, the 1.8 million dollar HAVA taxpayer funded testing of Ohio’s Voting Machines by Ohio Secretary of State, Jennifer Brunner, hopeful packages from The Ohio Election Justice Campaign were delivered in the capital city of Columbus Ohio. The deliveries were to Governor Ted Strickland via a staff member named Peg; the Ohio Senate and the Ohio Controlling Board who approved the money for this project; to Attorney General Marc Dann via Assistant Chief Damian W. Sikora; and to Ohio Secretary of State Jennifer Brunner, via Executive Assistant Bobbie Gilbert who said the package was on her own desk.

...........Paddy & David Sikora.....Paddy and Strickland Staffer ................................

David Sikora, Assistant Chief for Ohio Attorney General Marc Dann and a staffer of the office of Governor Ted Strickland, are handed packages of sample product liability lawsuits on the last day of Project Everest testing.

Marj Creech, Victoria Parks, and Paddy Shaffer assembled and delivered these packages including two product liability lawsuits: one by Paul Lehto for Washington, one by Patricia Axelrod for Nevada.
Product liability interview is at this link:
In delivering the packages, it was explained that the purpose of us providing these packages to them is to raise awareness that Ohio can request it’s money back, to have a recall and refund on the voting machines. These lawsuits can serve as a sample or a template for what Ohio may need to do after the testing of our voting machines. Now that these elected officials have the sample product liability lawsuits, the topic has been raised for recall and refund. Plausible deniability is no longer a reason to continue to keep machines, if the only strong reason given after the testing reports have been viewed is because we have such a large financial investment in them, and that we must keep them. In this case the deciders of the fate of our voting machines will be fully aware they could ask for a recall and refund. The flawed reasoning of throwing good money after bad is devoid of good fiscal judgment. These vendors have been decertified in California after exhaustive testing by the Secretary of State Debra Bowen. Why then should we expect different results in Ohio? They are the same vendors being tested. One only hopes that the testing Brunner conducted will have proven just as rigorous. One recalls the words of our founder Benjamin Franklin who said, "the definition of insanity is doing the same thing over and over and expecting different results." He was a wise man.

The package also contained several items including information on other lawsuits in the US and documents from Leonard Samuelson, an Electrical Engineer and software developer for thirty years. Leonard covered a variety of important topics regarding electronic voting machines, including:
Voter verification
Count auditing required.
Testing only validates expected behavior.
Hidden capability is easy to prepare.
Hidden capability is easy to use.
It’s possible to limit access to hardware.
Paper and pen are very reliable.
Testing cannot prove “no tricks.” (OEJC's favorite)

All offices were informed that we shall follow up in about a week to make sure the package was reviewed, and will be seeking comments.

At the office of the Attorney General Marc Dann, we supplied the package to Assistant Chief Damian W. Sikora. In the past, Damien has done defense work on behalf of J. Kenneth Blackwell regarding election justice cases such as Northeast Ohio Coalition for the Homeless v. Blackwell, and the League of Women Voters v. Blackwell. He is listed on the papers as being in the Constitutional Offices Section.

These packages were delivered on the final day of testing for Project Everest, for which The Ohio Election Justice Campaign has repeatedly requested both verbally and in writing, to have observers for. All requests heretofore had gone unanswered. We were told permission would have to come from Assistant Secretary of State Christopher Nance. Christopher never returned our phone calls or letters regarding our request. Sadly he was unable to come out and speak with us while we were there at his office. He was said to be in a meeting with the SOS at that very moment. While there, we were told that he was writing us a letter, and would send it soon. That was Friday November 30, 2007, and the letter arrived via email on Sunday afternoon, December 2, 2007 at 4:06 p.m. This is that letter:

November 30, 2007

Dear Ms. Shaffer:

Thank you for your recent correspondence and request to have observers from the Ohio Elections Justice Campaign observe the EVEREST testing process.

While I understand your interest in observing the testing process, I am respectfully denying your request to observe the testing process.

In a recent email (dated November 22, 2007), you also made numerous requests of information. Please note, that any specific public record requests you made are being addressed and Brian Green, Elections attorney for our office, will be sending you information shortly.

If you have any questions, you may contact my office at 614-644-0764.


Christopher B. Nance
Assistant Secretary of State

cc: Jennifer Brunner
Kellye Pinkleton
Brian Green

Election transparency denied again. It is now day 117 since the OEJC has requested a meeting with the Secretary of State and the Attorney General.
The OEJC was informed that members of the Voting Rights Institute who were invited to go to the facility where the testing is taking place were asked to sign a Non-Disclosure Agreement. This forbids them from talking about what they witnessed until the year 2017. Two members went, many others declined, not willing to sign the agreement. The OEJC has requested public records, including all non-disclosure agreements that the SOS has asked anyone to sign in 2007, including for Project Everest. These are mentioned in the above letter.

At the office of Ohio Secretary of State we had the pleasure of speaking to Secretary Brunner’s Executive Assistant Bobbie Gilbert. We spoke of what was in the package, and on the subject of plausible deniability. We also addressed several other items, including Clermont County's RC-3 form (a “certificate of records disposal”) that I had personally provided Bobbie to give to the SOS on August 6, 2007. The form was proof that Clermont County Board of Elections Director Mike Keeley was still in July of 2007, destroying the 2004 election records that Judge Marbley had ordered protected and safeguarded under the threat of a fourth degree felony and contempt of court charges. I wanted them to do something about it, and to remind all the counties to safeguard the records, and for the SOS to request an inventory of what still existed. While we were there talking to Bobbie, I let her know that my continuing research of this very week had revealed that the Poll Books and Tally Sheets mentioned on that RC-3 form, are regarded as election records with a six year record retention schedule, not a 22 month retention schedule, like the ballots. (The Ohio Auditor of State, Mary Taylor’s office approved the destruction of these records according to the stamp on the form in July 2007). The Clermont County poll books in question were destroyed along with the ballots.

Ms Gilbert, Victoria, and myself went around and around until she appeared exhausted with us, never gaining satisfaction that we activists will go comfortably back to sleep and stop paying attention to that man behind the curtain, we fear that might be the guy doing the testing of our voting machines? After requesting to speak with Chris Nance we were told he was busy and that Kellye Pinkleton would speak to us. After having waited for Kellye for a half an hour, we'd like to thank Ms. Gilbert for stepping up to the plate to speak with us. When these SOS employees are unable to resolve our problems, they along with us must feel frustration.

It was addressed to Bobbie that having the same people running the 2008 elections, who ran and committed alleged election crimes in 2004, did not appear to be getting ready for 2008, but rather appeared to be simply repeating the same types of past behaviors; for example, the destruction of public records without consequence. As the counties are preparing for 2008 in the current situation, we have no reason not to expect massive record destruction of election documents once again. Now, that is a problem. Records destruction is an addictive behavior, like alcoholism. First one has to admit the problem before effectively handling the addiction. Looking forward won't do a darn thing until we all look back to figure out how we got here.

For the many alleged crimes and alleged criminals we spoke of, we were repeatedly told that, “We are looking forward to 2008, we are getting ready for 2008, Secretary Brunner knows what needs done, we are looking forward to 2008", again and again and again. A mantra that plays over and over from the mouths of elections officials at the office of the Secretary of State (and previously at the office of the Attorney General), but doesn't play well with Ohio voters who want corruption out of our BOE's and out of our elections for good. The days of "just trust us" elections are over. We want transparency and accountability and we want it now.

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