Election officials in Marin County, California have asked the state's Secretary of State for permission to go ahead and use voting machines that are the subject of a lawsuit filed against their manufacturer last week.

Last Monday, California Secretary of State Debra Bowen filed a $15 million lawsuit against Election Systems & Software, Inc., for selling some 972 voting machines to five counties as upgrades to equipment that had already come under suspicion, without giving the State an opportunity to test and certify the new systems first.

"ES&S ignored the law over and over and over again, and it got caught," reads a statement from Sec. Bowen's office last week. "California law is very clear on this issue. I am not going to stand on the sidelines and watch a voting system vendor come into this state, ignore the laws, and make millions of dollars from California's taxpayers in the process."

But the Marin Independent Journal reported over the weekend that election officials in Marin County -- which includes the cities of Fairfax, San Rafael, and Sausalito -- have asked Sec. Bowen for permission to go ahead and deploy the 130 AutoMARK A200 version 1.1 models they've already purchased from ES&S. That way, Marin could return the machines it's had to borrow from a neighboring county in the meantime.

What ES&S calls the AutoMARK A200 version 1.1 is being billed as an upgrade to the AutoMARK Phase One version 1.0, though Sec. Bowen believes the A200 is a substantially different system - in essence, a new model rather than a fix for the old one. For its part, ES&S released two statements last week proclaiming not only that version 1.1 was an upgrade, but contending that the State of California had actually certified it.

"The hardware changes were approved through the established process to review, test and qualify voting equipment at the national level," reads one company statement. "As a result, the ES&S AutoMARK in use across the country and in California has been tested and federally qualified for certification."

A subsequent statement called the lawsuit into question, calling its allegations "inflated and distorted."

"Inexplicably and unfortunately, this suit deliberately jeopardizes San Francisco's use of a widely acclaimed ballot marking device that has been federally qualified and certified and installed in 29 states," reads the second statement. "The AutoMARK has allowed many San Francisco voters with disabilities to vote privately and independently for the first time. Frankly, we are bewildered as to how this action will improve elections in San Francisco. In short, while the suit accuses the vendor of making false claims, the only false claim is the lawsuit itself."

Last August, BetaNews discovered the minutes of November 2006 meetings of the San Francisco Elections Commission, which record a discussion that led to that county's purchase of 558 A200s from ES&S despite officials having been made explicitly aware they could not be certified by the State in time for this November's elections.

Despite those meetings, Bowen's office stated it has evidence that counties purchased "version 1.1" of whatever voting equipment it happened to be using at the time - in this case, the Phase One version 1.0, also known as the A100 - thinking that it was the easiest route to getting a firmware update. Some evidence shows purchases having been recorded as "A100 version 1.1."

Counties' purchases of the A200 may ironically have been prompted by the State's having revoked the certification of a completely different ES&S model altogether, the InkaVote Plus. That revocation came after the manufacturer failed to participate in a study of voting machine integrity commissioned by Sec. Bowen. Specifically, it submitted its equipment past deadline, and with only a few days for researchers to examine it before their final report was due.

The Marin County newspaper quotes registrar of voters Michael Smith as saying he expects ES&S to pay the cost of his county's having to borrow machines from elsewhere, though he does not believe that compensation has to be attained through any kind of state lawsuit.