According to revelations made public today by California Secretary of State Debra Bowen, as many as 972 electronic voting machines sold to San Francisco and four other counties by Election Systems & Software, Inc., may never have actually been certified by the state prior to their sale.

The systems in question were all AutoMARK A200 version 1.1, some of which were apparently delivered throughout 2006, prior to their having been certified by the federal government. The A200 has never been certified by California state government, because ES&S never submitted it to the state for its certification.

In a statement released this morning, Sec. Bowen said, "Not only did ES&S sell machines to California counties that weren't state certified, it's clear the machines weren't even federally certified when the company delivered them to California. While ES&S may not like California law, I expect the company to follow the law and not trample over it by selling uncertified voting equipment in this state."

BetaNews discovered the minutes of a November 2006 meeting of the San Francisco Elections Commission, which clearly state that the city's Dept. of Elections was made aware as early as April of that year that new ES&S equipment being considered for purchase to replace older and malfunctioning ES&S equipment, could not be certified by both the state and federal governments prior to the November elections there.

The purpose of the meeting was as a briefing to recap the success or failure of new voting procedures instituted for citywide elections the previous week. At that time, many precincts were using ES&S Eagle optical scanner systems purchased in 2000, a full two years after the replacement for Eagle - the M-100 - was first made available by the manufacturer. It simply takes that long for the public sector to procure new equipment. Also in use were even older ES&S Optech IV-C scanners. "These, what the City currently uses, are very old machines," reads the minutes of the meeting. "They were not the latest technology when the City bought them, they are just old and this is exemplified by the 25 to 30% of the equipment braking down on election day."

This was the first time that the city's DOE took over the job of assessing the integrity and viability of voting machines prior to their use - a job which ES&S used to provide to the city. During the meeting, the city's Director of Elections stated that, based on ES&S' suggestion, it had not changed the existing maintenance policy for its machines - which was to have a thorough tune-up every 12 months.

According to the minutes, the president of the commission then noted that some precincts had been kicking back ballots that contain undervotes - ballots where the voter cast fewer votes than he was otherwise entitled to.

This can happen when someone votes for governor but not for school superintendent, and it's actually quite common; in fact, it's not really an error, since voters have a right not to vote for certain office holders. Nonetheless, some equipment was counting undervotes as errors, and why wasn't that problem resolved like the Commission wanted, the president asked.

The DOE director responded by saying the original undervote problem occurred with respect to systems made by Sequoia Voting Systems, which lost its contract subsequently to ES&S. In April 2006 - apparently when the switch was made - ES&S officials were asked whether their AutoMARK system, which was under consideration for purchase, could effectively suppress overvotes - instances where a voter appears to cast a vote for more than one candidate for a given office.

"The company's answer was that it couldn't because it would require a change of firmware which would require an additional federal review which couldn't happen in time for the election," states the meeting's minutes.

Indeed, ES&S did change the firmware, from version 1.0 to 1.1, which Sec. Bowen characterized today as "a version that is substantially different from the state-certified AutoMARK Phase One." And somehow, the City of San Francisco and four other counties were able to procure the version with the firmware upgrade, apparently after already having been informed that a firmware upgrade was necessary to meet election officials' demands, prior to their having been certified.

Also, since the DOE director had been informed, by his own account, that new certification was required, the fact that certification was required must have been on record.

Sec. Bowen has set the date for a public hearing on the matter for September 20, during which she stated she's seeking enough evidence to charge ES&S with $10,000 per violation, or $9.72 million in penalties.

But whether city officials share liability in this matter was not discussed by Bowen in this morning's statement, nor the integrity of elections where AutoMARK 1.1 systems were employed, whose results may already have been certified as official by her own office.

In recent days, the spotlight has heated up even more on ES&S. Last week, HDNet reporter Dan Rather presented an expose of ES&S voting equipment used in Florida state elections between 2003 and 2006. In the hour-long report, "The Trouble with Touch Screens," an ES&S iVotronics voting machine similar to those used in Florida at that time is demonstrated in the act of mis-identifying a touch in one candidate's box as a touch in another's. The entire documentary is available for viewing from HDNet's Web site.

In one part of the report, Rather traveled to the Philippines to talk with a former worker at an ES&S manufacturing facility there. He told HDNet that the company's quality control procedures consist largely of selecting machines from the assembly line at random, shaking them, and listening for any loose parts.

"If there is something inside the machine like components or screws," the worker told Rather, "all of that gets shaken around inside the machine as well."

In a lengthy response to HDNet's report posted last Friday, ES&S stated, "All ES&S voting technology is designed and built to meet or exceed rigorous federal and state standards. Passing such rigorous tests, it is certified. All voting equipment is then manufactured to these standards. All of our voting equipment, including iVotronic terminals, are extensively and repeatedly tested. Despite what the program appears to allege, each iVotronic terminal is tested in several ways before it ever leaves the manufacturing facility. Each terminal assembled through our contract manufacturer network is tested during and after the manufacturing process before it is ever shipped to ES&S's U.S. facilities for staging and quality assurance readiness prior to shipping to an ES&S customer. Such testing includes an assessment of the terminal's performance under some extreme but potentially real-life voting conditions."

ES&S has yet to release a comment to the public or to BetaNews, as per our request, regarding the California Sec. of State's allegations.