Intellectual Property Law

Bruce Haggard, an election commissioner in Faulkner County, Arkansas, is baffled by a problem that occurred with two voting machines in this month's general state elections. The machines allocated votes cast in one race to an entirely different race that wasn't even on the electronic ballot. The problem resulted in the wrong candidate being declared victor in a state House race.

"I don't understand how it could possibly happen," Haggard told Threat Level.

The problem occurred with two touch-screen voting machines made by Election Systems & Software, which were the only machines used in Faulkner County's East Cadron B voting precinct.

Haggard says the night before the election, officials noticed that the electronic ballot on two machines slated to be used at East Cadron B was missing the State House District 45 race. So officials printed up paper ballots to be used just for that race in that precinct.

Voters cast electronic ballots on the voting machines for other races, then cast paper ballots for the District 45 race. At the end of the day, Dr. Terry Fiddler (D) had beat Linda Tyler (D) for the House seat with 794 votes to Tyler's 770. But a post-election examination revealed that despite the fact that the electronic ballots on the two machines at the East Cadron B precinct didn't display the District 45 race, the machines recorded votes for that race anyway.

After some examination, officials determined that the machines had taken votes that were actually cast in a different race -- the Cadron Township Constable race -- and given them to the non-existent District 45 race instead. Luckily, Haggard says officials were able to determine this is where the votes came from because the touch-screen machines produce a voter-verifiable paper audit trail.

Those paper trails showed correctly that there was no District 45 race on the ballot and, thus, that there were no votes cast on the machines for the District 45 race. But memory cards taken from inside the machines, showed that the machines recorded votes in the District 45 race. Officials were able to determine that those District 45 votes actually belonged to the Cadron Township Constable race because the same number of votes that were allocated to the District 45 race in the memory cards matched the number of votes that voters had cast in the Cadron Township Constable race, which appeared on the voter-verifiable paper audit trail.

"Somehow the recording software had tabulated it into the wrong race," Haggard says. "Thank goodness for the paper trail. We went to the paper trail and could show how people actually voted."

Haggard doesn't have a clue how the switch could have happened but says that it was either a problem with the ballot definition file that election officials created before the election that tells the machines where to allocate votes or in the voting machine software itself.

Once the bogus votes in District 45 were subtracted from the totals, Fiddler lost 51 votes in the race, showing that Tyler had actually won the House seat.

ES&S did not respond to a call for comment but Haggard says the company will be expected to come up with an answer about what happened.

He says the two machines in question have been sequestered in the county warehouse, and the county will be requesting help from the secretary of state's office to conduct an examination with ES&S. Haggard says the examination will likely occur next month. Haggard says they have no plans to bring in an independent investigator, though he says he's going to insist that ES&S examine the machines on site in his presence.

This is not the first time that ES&S voting systems have had vote-flipping problems. In Ohio during last November's general election ES&S tabulation software flipped the vote totals for two candidates. Officials noticed the problem when they compared the vote totals produced from the memory cards to the totals that appeared on paper printouts from the machines.

ES&S machines in Ohio also had a separate problem last November when voters, among them the secretary of state, reported that their machine had dropped a candidate's name from the race and displayed a gray bar in his place.

ES&S machines were also at the center of the controversy over the 13th Congressional District race in Florida in 2006 when more than 18,000 ballots cast in Sarasota County showed no vote cast in the CD-13 race after hundreds of voters had complained that the machines failed to respond to their touch. An investigation by the Government Accountability Office indicated that the machines likely weren't to blame in that case, though critics have questioned the thoroughness of that investigation.

See also:

• Votes Flipped in Ohio Race that Used E-voting machines
• Ohio's Election Portends Trouble
• Report: Magnet and PDA Sufficient to Change Votes on ES&S Voting Machine