Product Liability: It is not just for consumers

Consumers can study product quality by reading Consumer Reports. When products do no perform as advertised we can recover damages under tort law, class action suits, or occasionally rely on actions by consumer protection agencies or state attorney’s general. Similar actions options are open to election officials when voting equipment proves problematic or fails to perform intended functions.

Two years ago in the Outsourced State, we discussed the Voters Unite report, Vendors are Undermining the Structure of U.S. Elections. Two recent developments in Ohio and California show the way aggressive election officials could obtain redress for  election equipment inadequacies like those recently documented by the University of Connecticut (UConn).

Product Defect Example
Recall that memory card failures have plagued our Diebold/ES&S/Dominion AccuVote-OS optical scanners for several years. Depending on the study somewhere between 5% and over 10% of memory cards are completely unreadable when subject to pre-election testing. After years of problems reported in Florida and Connecticut (Presumably occurring but not reported in other states that also use the AccuVote-OS, such as other New England states), UConn recently released a report that a major component of the problem is a product design flaw: The battery test is not able to detect those with low power remaining. Thus when memory cards are tested before each election, the test fails to detect many cards that cannot make it through the election.

An Aggressive Secretary of State Shows The Way
Led by Secretary of State, Jennifer Brenner, Ohio recently won a settlement with Diebold over a software error that caused problems in the 2008 election. <read>

The settlement (PDF) is the result of contract claims made in a lawsuit filed by Secretary Brunner in 2008 regarding problems some counties had encountered with their Premier voting systems. It comes after months of negotiations that involved the Secretary of State’s office, 47 counties that use Premier equipment, and Premier Election Solutions, Diebold, Inc., and Data Information Management Systems, Inc. (a separate company that markets and services voter registration systems to various Ohio counties.)

Among the highlights of the settlement for counties who decide to participate:

  • A total $470,424 of one-time payments to the 47 counties using Premier voting equipment.
  • At the option of each county using Premier voting equipment, up to $2.4 million worth of free software licensing for the voting machines for two years.
  • Each Premier county is eligible to receive free, new AccuVote TSX DRE voting machines equal to up to 15 percent of the number of machines the county already has – which adds up to a potential 2,909 free voting machines for the counties.
  • A 50 percent discount in maintenance fees if a county chooses continuing voting system maintenance from Premier.
  • A 50 percent discount for new generation precinct-based optical scan voting machines, if a county chooses to switch from an electronic touch screen voting system to a paper ballot optical scan voting system.
  • County boards of elections are not bound by the settlement to select Premier as their vendor for services, and they retain the right to negotiate with other vendors who offer certified voting equipment in Ohio, even if they accept the county’s one-time payment from Premier.

New California Law Destined To Help
Led by Secretary of State Debra Bowen, California recently passed a law that is destined to discourage vendors from hiding defects in their systems and to publicize such defects to other states <read>

“Reliable voting systems are critical to a successful democracy, but also to people’s confidence in the electoral process,” said Secretary Bowen, who sponsored similar legislation that the Governor vetoed last year. “Companies that make cars, toys and thousands of other products have to report product flaws and even issue recalls of seriously troubled items. There is no reason that the same philosophy of transparency should not apply to the voting equipment on which millions of Californians rely to record and tally their votes.”…

Beginning January 1, voting system vendors and ballot manufacturers will be required to notify the California Secretary of State, in writing, of every known problem in their respective systems. In turn, the Secretary of State is required to submit a report of all disclosed problems to the U.S. Election Assistance Commission (EAC), making it possible for voters and elections officials in all states to benefit from California’s transparency. Companies may be liable for civil penalties of up to $50,000 per violation for failing to disclose known product flaws

In recent years, undisclosed defects with voting or ballot systems came to light only after incidents in Humboldt, San Francisco, Sutter, Calaveras and Yolo Counties. Errors were caught by government officials or election observers, and no election results were compromised. “Voters have to put their faith in a voting system every time they cast ballots,” added Bowen. “This new law helps ensure that faith need not be blind.”

The Brennan Center for Justice recently recommended a similar solution national database, Voting System Failures: A Database Solution, as discussed on NPR. Perhaps California’s law will accomplish most of the same objectives, starting sooner.

The opportunity is for Secretaries of State and Attorneys General in states harmed by poor products to take advantages of documented defects like those uncovered by UConn, learn of those defects based on studying submissions required by California’s law, and aggressively following Ohio’s example of redress.

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