Earlier today, Brad Friedman reported in detail on the uncertified, “experimental” software patches that Ohio’s Secretary of State Jon Husted (R) had secretly contracted [PDF] with Election Systems & Software, Inc. (ES&S) to create and install at the very last minute onto electronic central vote tabulation systems in 39 Ohio counties, encompassing more than 4 million Buckeye State voters.
We noted that Bob Fitrakis, one of the Ohio journalists at the Columbus Free Press who had initially broken the story late last week, was planning to file a legal complaint and temporary restraining order in hopes of blocking the use of the mysterious, untested software on the ES&S central tabulation systems in those counties.
Late tonight, just hours from the official opening of Election Day polls in the Buckeye State tomorrow, we obtained copies of both the complaint [PDF] and the motion for a temporary restraining order [PDF] which have now been filed in the U.S. District Court for the Southern District of Ohio, Eastern Division and where oral argument has been scheduled for tomorrow morning, Election Day, at 9am local time before Judge Gregory L. Frost, a George W. Bush appointee…
At tomorrow’s hearing in Columbus, Judge Frost will be asked to rule on the motion for a TRO, as filed by Fitrakis, who, aside from being a long-time investigative journalist in the Buckeye State, is also an attorney, political science professor and a Green Party Congressional candidate. In both the TRO motion and in his full complaint, Fitrakis v. Husted, Fitrakis alleges that the Ohio Secretary of State violated the state Elections Code on Sept. 18, 2012 when he entered a contract with ES&S to provide “hardware and software designed to record and tabulate the votes cast by Ohio voters in the General Election on November 6, 2012…without…public bidding, without public review, and without approval of the technology review board.”
In the complaint, Fitrakis alleges that the persons who are not under the supervision or control of the Secretary of State or the Ohio Boards of Elections, using private facilities, have “access” to “recording tabulation of votes” and that, by utilizing a “back door” installed by ES&S, those persons pose an imminent risk of irreparable harm to the rights of Ohio voters. They could, he charges, use that access to “alter the recording and tabulation of votes cast.”
The complaint alleges that such alteration violates the 1st and 14th Amendments to the U.S. Constitution and seeks, among other remedies, the immediate issuance of a TRO that would prohibit use of the ES&S hardware and software for the Nov. 6 Election.
In today’s previous report, we noted that Husted’s office claimed that he did not have to first submit the software for testing or certification to the state because it was little more than “a reporting tool.”
In his TRO motion, Fitrakis hit the issue head-on:
There has been no examination of the software that gives any information as to what it does. The only persons who know exactly what this software does are ES&S’ own programming staff. Just because ES&S claims that this is “reporting software” which does not change the tabulation method does not mean that its claim is true. The law requiring testing and certification exists exactly because we do not make that kind of presumption. The average adult does not install software on his computer without scanning it for viruses and malicious code. Yet defendant Husted has done so in this case simply because ES&S claims that there is no malicious code. ES&S then claims that it does not need to check for malicious code because this installed software is not part of the tabulation system, when clearly it is.
Irreparable harm
As we detailed this morning, in an affidavit [PDF] which was filed with Fitrakis’ motion, Jim March, a computer software and elections expert, states: “What ES&S has chosen to do here is extremely dangerous and exactly what you’d want to do if you wanted to plant a ‘cheat’ onto the central tabulator.”
The case for irreparable harm is rather substantial. At worst, the ES&S contract could potentially enable individuals who are not under the control of any state elections authorities to maliciously alter the course of history without detection. And, regardless of which candidate prevailed, the outcome of another Presidential Election in Ohio could once again remain under a permanent cloud of doubt.
For many more details on this troubling story, what the OH Secretary of State claims the last minute “experimental” software is actually supposed to do, why election and computer experts have great concerns about those claims, and why the installation of secret, last-minute, software patches is a direct threat to both election results as well as confidence in the democratic system, please see our earlier, detailed report from this morning.
UPDATE 11/6/12: In a ten-page decision [PDF], U.S. District Court Judge Gregory L. Frost, a George W. Bush appointee, denied a motion to block the use of an ES&S “Election Reporting Manager’s Results Export Program (EXP) in connection with today’s General Election in Ohio.
Judge Frost accepted the explanation offered by ES&S systems analyst William Malone, who in an affidavit, insisted that EXP was a “read only” utility software that “has no capability to edit, ‘write’, or in any way change [votes].” Frost rejected the affidavit and telephonic testimony of the computer experts relied upon by the plaintiff, Bob Fitrakis, because neither expert had tested the software. Fitrakis’ claim that “there is no objective proof that the new software will not adversely affect the existing software” reversed the burden of proof — a point that seems to evade the core argument that this is why testing is required under Ohio law rather than simply take the vendor at its word.
Frost noted a dispute as to whether Ohio law required testing and certification, but pointed out that Ohio Sec. of State Jon Husted (R) objected that Frost, a federal judge, did not have jurisdiction to determine the claim made by Fitrakis, in his capacity as an Ohio taxpayer, that the contract between ES&S violated Ohio law.
Free Press now reports that a motion filed in the Ohio Court of Common Pleas which sought the removal of “the uncertified, untested software” was denied by Judge Mark Serrott (D). “However,” Free Press added, the judge left open the possibility that the case could be heard after the election, if there is evidence of election tampering. The judge declined to interfere in an on-going election, but indicated that he would consider taking action as the case continues after the election if it was needed.”
It’s to rig the election more convincingly.
I’m sure you’re also aware that statistical evidence of vote flipping occurred in Ohio Republican Primaries:
signs of election fraud.
IMHO, the slant on the primary graphs is due to a target seeking algorithm.
Giving an unwanted side effect of larger districts showing stronger votes for Romney. This unwanted side effect was how the fraud was
detected.
To fix that (easy detection), you would need to know how the votes are going early on,
so as the votes settle in each district to a horizontal level, you can calculate a plausible amount of votes to flip, and keep that constant during the voting. Otherwise the fraud would be detected again. Without the numbers you would be
guessing.
Too strong a flip and you’ll end up with some ridiculous number, e.g. 80% for Romney on in the day which would be visible clearly on the statistics and reveal the fraud.
Too weak a flip and your guy will lose.
So to get the number right, you’d need access to the voting as it happens. That is what I believe this reporting system is about.
It’s about getting the poll results as they settle towards their levels, so that you know how much to flip, so the voting statistics tests can be fooled by a constant flip.
And it was done last minute because they were caught by the statisticians in August.
Even if the appeal is successful how do we know the software was removed?
… IsistheCat said @ #2…
Welcome to the joys of e-voting!
Ernie, the judge’s last name is Frost according to the stamp on the restraining order?
Thanks, GWN. Typo corrected.
Fuck. I think I’m going to suffer cardiac arrest in anticipation of all the fucked up things that could go down. If I had any I’d seriously consider popping a bunch of valium and hope I wake up to no nightmare scenario with the election in hand. But since I don’t I’ll be nail baiting with the rest of you.
BTW, is anyone in the Obama campaign even aware of this? Since they’ve been mobilizing their legal teams the last few days they should have someone monitor this whole affair. Bob Fitrakis deserves a medal and should not be having to foot the attorney bill for this lawsuit on his own.
Arias @6 wrote:
Part of the relief sought by Fitrakis is an award of attorney’s fees and costs.
Note that Bob is suing as an Ohio taxpayer as well as an Ohio voter. He alleged that Husted “violated his duty not to expend public funds without authorization by contracting with…ES&S…without opening such contracts to public bidding, without public review, and without approval of the technology review board that must approve such contracts…”
In addition to the TRO, Fitrakis has asked the court to order a cancellation of the contract.
And wait, don’t tell me: the precincts are large, Democratic leaning precincts! Just by coincidence!
Prediction: The judge will grant the TRO, the election will proceed WITH the patches in place because, as Husted will say, “we did not have the time to remove the patches without compromising our ability to accurately tally election results.”
I bet John Puma is right. Seems like this Husted guy does not like taking orders from judges. What good do judgments in our favor do if guys like Husted are free to ignore them and suffer no consequences while we continue to suffer the consequences the rulings were supposed to end?
We gotta get Ukrainian.
Here’s some strange shit going on.
A post in by the tech guy behind today’s election lawsuit in Ohio –which was #1 on r/politics and #2 on reddit.com this morning– was deleted by the mods. The OP was actively posting updates in the thread on an ongoing, potentially crucial story. This is shameful.
2012 voting machine altering votes
If you need legal help, you can call 1-866-OUR-VOTE toll-free. Report long lines or voting problems at OurVoteLive.org or via Twitter with hashtag #OVLReport. If possible, use your phone to video the situation or interview the person affected and submit the video to VideoTheVote.org, or post it to YouTube or Twitter tagged with #VideoTheVote.
Any word yet on what happened with this? And Orangutan#1, a post was deleted from which site? Was the whole thread deleted? Link?
Re Emily Levy @12. The attorneys handling this matter anticipate that a ruling will issue around 12 noon central time.
Per Bob Fitrakis
Fitrakis returns from federal court hearing on Ohio voting machine software patch
by Free Press staff
November 6, 2012
Bob Fitrakis just returned from court for his lawsuit to stop the software patches on voting machines in Ohio. Judge Frost has not ruled on the matter yet, and at the conclusion of the hearing at approximate 10:20am he said he would issue a ruling “forthwith,â€(before noon today).
Mike Donohoe, retired National Security Agency master of computer security, testified by phone. Donohue stated that the software in question is also available for free on the internet, and he was not sure why the state of Ohio paid for it. He said it would have been more sensible for the stated purpose of the software to have placed it onto the secretary of state’s computers instead of the county computers. Donohoe also stated that it is customary, in his experience, if the Secretary of State put “experimental” software on an election system, it is usual to require hand counts in addition, in order to ensure that the added software had not affected the accuracy of the vote count, Donohoe pointed out. He also said that if a virus had been inserted through this new software, it could remain in the system. So removing the software may not remove the virus. That is why a random hand count of 5% is so important.
Free Press Election Watch Report #1
Bob Fitrakis reports on a filing at the Federal District Court in Columbus, Ohio – 11 am, election day, 2012
YouTube link:
http://youtu.be/RaLduV66jIg
Waiting, waiting, waiting…….
(thank you for the updates, Emily)
yeah well as expected he Bu$h appointed judge rejects the case!!!
Injunction denied according to this:
From the description in the article the judge simply ignored the fact that the software was installed illegally.
http://www.dispatch.com/content/stories/public/2012/11/ohio-voting-software-court-hearing.html
This is NOT experimental software. A simple read of the contract you have posted shows exactly what it is: Reporting software.
Despite the attempt to create hysteria, “EXP” does NOT mean “Experimental Patch”. The contract clearly defines EXP on page 3 of the Statement of Work, section 1.2: “The ES&S Election Reporting Manager’s (ERM) Results Export Program (EXP) is a stand-alone singularly focused application designed to enable users the ability to enter custom codes and interface with the ERM results database to produce a precinct-level, candidate, election results file for all state requested offices. EXP transforms the county election night results stored in the ERM database into pre-defined file formats not supported in ERM.”
Further, EXP is a standard product, not an “experimental patch”. Further down page three in section 1.3: “This offering proposes the current ES&S ERM Results Export Program (EXP) product version 2.0.6.0 be used as the baseline solution and modified to meet the Customers (sic) request.”
In Appendix B, you can see exactly what “codes” are entered and what results are generated, such as a county report, or a precinct report, etc.
If you read the contract, it’s spelled out in specificity.
Can we safely assume that if Romney wins Ohio and that if the vote is challenged that every polling place that used these machines will be hand counted?
This whole thing stinks. Changing the output is effectively the same as changing the software, especially if the output has been altered to specs created by Husted.
Breaking News: Results of today’s hearing in state court on the uncertified and untested software
Bob Fitrakis returned from state Common Pleas Court, reporting that Judge Sherrott ruled against him regarding his request for a Temporary Restraining Order (TRO) to remove the uncertified, untested software from some Ohio voting machines. However, the judge left open the possibility that the case could be heard after the election, if there is evidence of election tampering. The judge declined to interfere in an on-going election, but indicated that he would consider taking action as the case continues after the election if it was needed. So, in conclusion, in both the federal and state cases, expert witness Michael Duniho who worked for the National Security Agency (NSA) spelled out in great detail the threat to Ohio’s voting system by the secret, uncertified, and untested software.
To Perriwinkle @19,
You would be right, except for one thing – if there was a nefarious plot to steal votes disguised as a benign read-only patch, the plotters would not reveal this in the contract or instruction manual, right?
This cements the need for certification, as in trust but verify. Until the patch is checked out by objective inspectors, how do we know if the software has anything to do with what you read on the contract?
To my knowledge, the machines in question in Ohio are paperless DREs, so there are no ballots to recount. That’s the whole point… this type of theft is definitely preventable, but rarely provable. That’s why Kerry “lost” in 2004. Sometimes people get confused because some of these machines have a paper printout. That’s only a tally of the recorded vote… if the recorded vote is flipped and stolen, it’s just a paper printout of the bogus vote totals.
If anyone on this blog is from Ohio, I beg of you to make a stink about this… START “OCCUPY OHIO ELECTIONS” or “OCCUPY OHIO SECRETARY OF STATE” or “OCCUPY OHIO BOARD OF ELECTIONS” (although that might be by county. My point is this… in the 12 years since 2000, I cannot tell you how many times I have seen the video of the phony Karl Rove photo op where they had some preppy Republican interns from DC go down there and pile against a glass door like they were some regular outraged citizens demanding justice and closure… that somehow recounting was stealing from George Bush. Well, let’s take a PR page from Karl Rove’s playbook. Folks in Ohio should flash mob at Ohio sec of state or another appropriate place and scream in the street that they refuse to have the vote stolen from the president with these untested secretive patches. All the hard work that goes on behind the scenes must end with a video that can go viral and shape national perception.
Please Ohioans… PLEASE get out in the streets… it shouldn’t take much to coordinate a place RIGHT NOW… stay out there all night and call the media… video tape it yourselves for the internet. PLEASE!
Simply sick situation. What future does this country have when you political hacks, theives, and tech geeks upsurp the will of the people.
We need a national standard for voting; and capital punishment laws for pukes like those in Ohio and Florida who invent their own outcomes; to gain political power.
This is unacceptable…………cr@p!
It no wonder more and more people are sitting on the side lines and feel disenfranchised.
In another 50 yrs., I expect my brothers/sisters of color to tar and feather these white bi@#$es.