http://www.votersunite.org/info/VendorsProhibited.pdf
Diebold has been highly successful in threatening and suing its way to greater profits at
the expense of the citizens of the United States. But a case in North Carolina is
particularly instructive for New York. North Carolina had enacted a source code escrow
requirement similar to New York's. In 2005, on the day voting equipment bids to the
state were due, Diebold sought and received relief in North Carolina's superior court,
claiming, at the last minute, it was unable or unwilling to comply with North Carolina's
22
law. Diebold had obtained a TRO, permitting it to evade key transparency requirements
of the law, until Electronic Frontier Foundation (EFF) intervened and the court dismissed
the action.
Notwithstanding, Diebold managed to get certified even though it did not comply with the
escrow requirements. Similar to the situation in New York where Avante is making
Diebold's arguments, Diebold argued that none of the vendors can comply with the statute
because they all rely on proprietary software. The argument appeared to save the day for
Diebold. But then Diebold withdrew from the bidding.
Despite the judge's recent ruling, the company seems concerned that at some future point
it could be convicted of a felony for not complying with the letter of the law. In its letter
the company generously offered to help the state revise its legislation so that "all
vendors will be able to comply with the state election law." As the EFF rightly points
out, though, the legislature's job is not to craft rulings that all American companies can
comply with, but to write fair laws that companies are required to meet. The EFF opines:
Too many (though certainly not all) election officials across the country treat the
certification process as if the vendors were their clients, deserving of favors and
rule bending. Voters – the only constituency that matters in this process – are too
often treated like ill-mannered party-crashers when they try to ensure that their
interests are being protected. (emphasis supplied) 22
Diebold had withdrawn from the bidding claiming it was not at liberty to disclose the
source codes controlled by Microsoft, which is curious since Diebold had escrowed
Microsoft source code in other states (ie, Georgia). Thus it remains unclear whether
Diebold withdrew for the reason given or because North Carolina also imposes harsh
criminal and civil penalties. Dieblod had already been decertified in California for
misrepresentations to the SOS regarding the installation of uncertified software
on their machines. A False Claims Act lawsuit filed against Diebold was settled
by Diebold's paying $2.6 million.
23
The example of Diebold, in choosing to ignore North Carolina's law and then seeking
to evade it at the 11 hour, is precisely what Avante and Microsoft are doing in New th
York at the present time. All of the major vendors chose to use Microsoft's products,
thereby voluntarily making themselves unable to comply with New York's 2005
escrow requirements. (see discussion of this issue at pp 35-39)