Intellectual Property Law

Officials in Montgomery County in Ohio discovered this week that tabulation software used with touch-screen voting machines in the presidential election failed to count five votes in the city of Trotwood. The voting system in question is made by Premier Election Solutions (formerly Diebold Election Systems).

Montgomery County officials discovered that although the five votes were recorded to a memory card inside the voting machine, the votes weren't counted by the tabulation software when the memory card was uploaded to the tabulation server. Premier's Global Election Management System (or GEMS) is the tabulation software that counts votes from memory cards.

The company's GEMS software is currently at the center of an investigation into dropped votes in a California countyand was also the source of a previous problem found in Ohio in Montgomery and Butler counties during the May primary. Officials discovered then that the GEMS system dropped votes if officials tried to load too many memory cards at once. The problem turned out to be a sharing violation on the Premier election servers set up in eleven counties. No votes were lost during the primary as a result of this problem, since officials were aware the machine was rejecting votes when it occurred, but the state sued Premier in August over this and other issues.

Unlike the primary, officials had no indication in the November general election that the machine was dropping the five votes that were discovered missing this week.

The votes were not included in the official count that county officials certified to the state. Montgomery officials discovered the missing votes only through a special hand auditthey were conducting on order from Secretary of State Jennifer Brunner.

In an effort to restore public confidence in the voting machines the state uses, Brunner ordered all of Ohio's 88 counties to conduct a graduated audit by randomly selecting precincts and conducting a hand recount of the presidential race on 5 percent of the ballots cast in order to compare the votes against digital tallies and ensure that electronic voting machines are counting votes accurately. If the results of the 5 percent audit differ by more than two votes of the machine count, county officials are required to audit an additional 3 percent of ballots. If this sampling also differs by more than two votes, then officials are required to hand count all of the ballots cast in the county.

Montgomery County is the first county to have uncovered a specific problem with the voting machines as a result of the audit.

According to the Dayton Daily News, officials discovered the missing votes when they put the memory cards back into the voting machinesto conduct the manual audit. The director of the county board of elections told the Daily Newsthat there is no circumstance, under normal election conditions, that would cause officials to put the memory card back into a voting machine once it's been taken out. They put the memory card back into the machine this time only to conduct the mandatory partial audit required by Brunner.

It's unclear why they needed to put the memory card back into the machine to conduct the audit, however, since they already had paper trails of the votes (the Premier touchscreen machines print out a voter-verifiable paper audit trail as voters cast their ballots) and they already had the digital tallies from the machines as well.

Neither county nor state election officials were available to answer questions about the issue at press time.

The Premier touchscreen machines are used in 44 Ohio counties.

See also:

• Serious Error in Diebold Voting Software Caused Lost Ballots in California County
• Groups Warn Election Officials About Diebold Voting Machine Flaw