As The BRAD BLOG broke yesterday, a lawsuit has today been filed in San Francisco Superior Court demanding that California Sec. of State Bruce McPherson follow state and federal law in regards to his recent re-certification of Diebold voting machines in the state.

McPherson is named, along with 18 California county registrars, as defendants in the suit which calls for a ban on the use an new purchase of Diebold voting machines in the state. The suit was filed by VoterAction.org on behalf of 25 California voter/plaintiffs.

-- Here is a complete copy of the lawsuit file today [PDF]

Reuters originally reported on the story an hour or so ago as "Diebold Inc. sued over California voting systems". That headline is, in fact, incorrect. They have now reissued the story with the more accurate headline "California sued over Diebold voting systems".

The lawsuit against Diebold, we imagine, will come later after California is ready to admit how they've been screwed by the company and they try to recover the millions they've lost in betting on the wrong horse.

VoterAction is the non-profit organization who brought the actions that led to both the decertification of Diebold in California in 2004 and, more recently, the ban on the purchase of Sequoia voting machines in New Mexico (which led to a new law in the state requiring a paper ballot for every vote cast.)

We're short on time today, and haven't even been able to review the complete suit yet, so we'll let State Sen. Debra Bowen's press release in regard to the lawsuit, do the reporting for us since she's generally nailed all the factual basis for the complaint and explains exactly how McPherson's certification of Diebold is in violation of several state and federal laws.

Bowen, who is running herself for Sec. of State this year, also presents a very useful timeline in the release, explaining how we got here in the first place, and how it is that McPherson seems to have simply disregarded the law in favor of his good friends at Diebold.

Remember, as goes California (or as Diebold likes to call it, "America's largest voting market") goes, so goes the country...In other words, this suit is much bigger than just California...

UPDATE 3/21/06: Suit now filed, full coverage here...

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We've hinted of late at upcoming legal actions, in several states, against the use of Diebold voting machines. The BRAD BLOG can now reveal that such a legal action will be filed tomorrow morning in San Francisco's Superior State Court in response to Secretary of State Bruce McPherson's recent re-certification of Diebold Electronic Voting Machines in the state.

VoterAction.org is announcing their intention to file suit, on behalf of several plaintiffs, "aimed at halting the use or purchase of Diebold electronic voting systems" in the state.

The same group recently carried out a similar action in the state of New Mexico, in regard to the use of Sequoia Touch-Screen voting machines there. That suit ultimately led to the ban of use of such machines, and a bill which was recently signed by Gov. Bill Richardson requiring a paper ballot with every vote cast in the state.

Diebold's optical-scan and touch-screen systems were revealed last December to contain "interpreted code" which is banned by Federal Voting System Standards. It was that "interpreted code" which was exploited in the recent hack of a test election in Leon County, FL where the results of the election were completely flipped without a trace being left behind.

Despite that startling revelation, California's Sec. of State Bruce McPherson certified the systems anyway in California, after they had previously been decertified in 2004 when Diebold admitted they had used untested and uncertified software patches on their machines in the state.

Diebold has now admitted [PDF] that their voting systems, both optical-scan and touch-screen, contain such "interpreted code." That, despite the fact that its use is banned at the Federal level. California state law requires that voting systems certified in the state meet those Federal standards. McPherson, apparently, has chosen to blatantly ignore that state law. (We'll have further details outlining the above allegations very specifically, and in no uncertain terms, in a future post here at BRAD BLOG.)

According to VoterAction's press release (posted in full below), the legal action is being filed because "Diebold's TSx touch screen voting system is a severe security risk, and does not accommodate all disabled voters as required by law."

Sources have told The BRAD BLOG that the action is to encompass many, if not all, of California's counties. Some 18 of them are currently doing business with Diebold.

The press release goes on to charge that, "The Diebold system is difficult if not impossible to audit or recount, and has been proven vulnerable to malicious tampering in tests and studies. Diebold technology contains 'interpreted' code, which is easily hacked, and illegal for voting systems in the State of California."

Diebold is currently facing litigation in several investor class action lawsuits alleging Securities Fraud Violations such as insider trading and the false manipulation of stock prices by eight current and former company officials.

A press conference will be held to discuss the latest legal action involving Diebold tomorrow morning. The complete Press Release from VotersUnite.org follows...

Last week we briefly discussed Stephen Heller who, out here in Los Angeles, is now facing three felony charges for exposing the illegal scheme by Diebold to use uncertified software on their voting machines in the state several years ago. The LA Times coverage is here.

Heller blew the whistle on the company's plan to defraud California voters when he exposed documents he saw while working as a temp worker at Diebold's California law firm, Jones Day. The courageous act, from which Heller stood to gain nothing (he, in fact, was fired for it) led to the decertification of Diebold in the state by former Sec. of State Kevin Shelley, and then to the eventual settlement between the company and the state of California for $2.6 million in 2004.

Today, several Huffington Post blogger take up on Heller's behalf, along with issuing some calls to action to contact the LA District Attorney's office to encourage tell them to drop this appalling case of punishing the patriot, Heller at the behest of the the bullies at Diebold.

Peter Soby Jr.'s coverage is the most complete. Here's a snippet:

Soby goes on to offer some talking points and helpful contact information for the LA District attorney. Please check them out and take action.

As well, Lyn Davis Lear (Norman's wife), speaks up in support as well.

...CONTACT...
District Attorney's Office
County of Los Angeles
210 West Temple Street, Suite 18000
Los Angeles, CA 90012-3210

Email: lada@co.la.ca.us

Telephone: (213) 974-3512
Fax: (213) 974-1484
TTY: (800) 457-7778 (8:30am - 5:00pm M-F)

Inveterate Huff Po contributor, R.J. Eskow picks up on our coverage of the latest mind-blowing Dieboldery by California Sec. of State Bruce McPherson and what it may bode for the Golden State as the GOP sets their sights on political manifest destiny.

Connecting a few dots, and noting big Bush Adminstration gunslingers, like Steve Schmidt, who are roving their way westward to help shore up the Governator's re-elect prospects out here, Eskow concludes:

Note: Eskow's appropriate concerns about McPherson's inexplicable Diebold double-cross don't even mention the Dept. of Homeland Security's warning about their hackable tabulator software, the recently flipped-without-a-trace-left-behind mock election in Leon County, FL, the GAO Report confirming the dangers of electronic voting, and his link to a page describing the failure rate of Diebold machines in a massive election test last summer pins the percentage of failed Diebold touch-screen machines at just 10% (a later report confirmed the number was more like 20%, and a later one still pegged it at 30%.)

It also still remains unexplained why McPherson didn't wait to hear back from the federal "Independent Testing Authority" (ITA) --- which isn't actually independent, as it's created and funded by the Voting Machine Companies themselves --- to whom McPherson had sent back the Diebold memory cards after the Leon County hack test revealed their machines employed hackable "interpreted code" which is expressly banned by the Help America Vote Act (HAVA) guidelines for software used in electronic voting machines.

Back in December, McPherson's office sent a letter to Diebold explaining that they would not re-certify Diebold in California until the ITA completed their re-examination of the code in light of the hack test discovery:

Apparently, the SoS's office was just kidding.

They went ahead and re-certified Diebold out here last week without waiting to hear back. They announced their decision late on Friday, at the start of the long holiday weekend and in apparent defiance of state election law and McPherson's own "10 Strict Standards" [PDF] which include "State certification testing does not begin until the federal qualification testing is successfully completed."

Apparently, he was just kidding about that as well.

With all of that in mind, readers of this blog would be remiss if they failed to take the actions described in Eskow's link to Skippy. Five phone-calls and/or emails this week are all that may be needed to finally see representatives from these unpatriotic Voting Machine firms subpeonaed and forced to answer questions --- under oath --- in a public hearing before elected officials concerning their secret software, shitty machines and under-the-table efforts to work around state and federal election laws. Hit that link, and call the five members of the California legislature's Rules Committee now!

By the way, McPherson himself also refused to show up at that hearing and refused to send a representative from his office to boot.

It should also be noted that Diebold is not the only bad player here. Add ES&S, Hart-Intercivic, Sequoia and several others to the list of cowardly unAmerican firms who recently refused the invitation to show up to testify before the California State Senate's Election Committee last week. All of those companies, apparently, believe it's none of our damned business how they count the votes (or not) in our American democracy.

Take action.

For full disclosure, we should also mention that we had the privilege of meeting both R.J. and Skippy in person over the weekend in an L.A. Blogger's get together out here. Good folks all of them, and we're delighted to see them jump into this most important game of all.

And finally --- since we've been looking for a good excuse to post this video --- we'll take this opportunity to give you an exclusive peek inside the "brain" of the man whose perplexing decision to re-certify voting machines and software known to be flawed and hackable may well effect similar decisions by Elections Officials around the entire country.

The following short Q&A with CA's SoS was video-taped by Dave Berman of GuvWurld about two weeks prior to the recent about face by McPherson. It's somewhat revealing --- particularly in the last couple of minutes where Dave gets to ask the questions --- as to the mindset and intellectual capabilities of the man currently appointed by Arnold to oversee free and fair elections in the country's largest "voting market" (as Diebold refers to it).

At one point in the questioning, when asked about the re-examination of Diebold software by the ITA, McPherson says, "If they're going to be certified, they're going to have to meet those levels of satisfactions to me...We, uh, we've, uh, just said that, uh, you have to meet these strict requirements and if they do, we'll consider it."

Apparently, McPherson was just kidding there as well....Since he recertified them without, apparently, waiting to hear back from the ITA.

Without further ado then, we give you the man, the myth, the elusive and rarely seen genius that is California Sec. of State Bruce McPherson --- as videotaped exclusively about two weeks ago in Humboldt County, just prior to his re-certification of Diebold voting machines in this state.

-- Video in Streaming Flash format...
-- Video in Windows Media format...

UPDATE: CA State Senator Debra Bowen (chair of the Senate Elections Committee) issues her own call to action to force McPherson to review his outrageous decision. Her reasons are summarized thusly:

Guest Blogged by John Gideon (with some additional updates/info from Brad)

Updated with much more information...

Secretary of State McPherson seems to have a thing for making major announcements late on Fridays just before holidays. Following in what seems to be a pattern of his, he announced late this afternoon that he was certifying Diebold Optical Scan and AccuVote TSx (touch-screens) for use in elections in the state.

The re-certification (they had been originally decertified in California in 2004 when it was revealed Diebold had installed illegal software updates on the machines) is conditional on some items but not on the one thing point he had announced last December when he sent the system back to federal authorities for further testing. At that time he said he was sending the machine's memory cards to the federal Independent Testing Authority (ITA) Lab for reinspection in light of the news out of Leon County, Florida that the cards used "intepreted code" which is specifically banned by the Help America Vote Act (HAVA). A "hack test" in that county revealed that an entirely election could have its results flipped by a hacker exploiting that "interpreted code" --- without a trace being left behind.

McPherson made his announcement today without waiting to hear back from the ITA lab.

Last summer, after a massive mock election test with Diebold touch-screen machines revealed that 10% of them failed entirely with screens freezing and printers jamming --- later reports would reveal that as many as 30% of the machines actually failed! --- McPherson said, "We certainly can't take any kind of risk like that with this kind of device on California voters."

Apparently the Secretary of State of America's largest "voting market," as Diebold refers to it, was just kidding about that.

State Senator Debra Bowen, (D-Redondo Beach), the chairwoman of the Senate Elections, Reapportionment, & Constitutional Amendments Committee issued the following Press Release after learning of McPherson's remarkable decision.

VOTING SYSTEMS HEARINGS, MARCH 1:
Also of note is the announcement of public hearings (as mentioned in Bowen's release) persuant to the certification of various voting systems, many of which are still not federally qualified. This announcement is not accompanied by any of the test reports necessary for citizens to go to this hearing with any knowledge of what the state found in their testing. Perhaps this is because none of these systems have been tested by the state yet?

...DEVELOPING...MUCH MORE BELOW...UPDATES, ACTION ITEMS, ADDITIONAL INFO...

Guest Blogged by John Gideon of VotersUnite.org and VoteTrustUSA.Org

While a dozen Northern California counties consider going vote-by-mail in order to get themselves out of the 'voting machines morass' Riverside Co. decides to pay over $6M to upgrade their present Sequoia voting machines to newer machines. These 'newer' machines are federally qualified to 1990 standards and do not meet HAVA mandates for accessibility. Those of you who have responded to the Action Alert from VoteTrustUSA have sent 15,097 emails to the EAC along with 1870 letters demanding the ITA be made to do their job....

The Terminator earns his name...and his bones.

The Death Penalty is a disgrace to our country. Our collective national shame...

VERY LATE UPDATE 12/15/05: This Madison Capital Times editorial is 100% correct. Murder is Murder... (Thanks Katrina!)

With Additional Reporting by John Gideon

On Friday, November 25, a news story appeared in the San Francisco Chronicle by political writer John Wildermuth reporting that the California Secretary of State's office would be allowing Election Reform activists to perform an attempted hack of voting machines on Wednesday, November 30th. That report was soon picked up by the Associated Press and other outlets where it was repeated, in part, in newspapers, radio and television across the nation. Headlines along the line of "Hacker to try to attack state voting machines" were blared across the media throughout the holiday weekend.

While the story seems to be based in some reality, reporting by The BRAD BLOG over the last several days has revealed that the matter seems to be a far cry from the way it has been reported by the Mainstream Media. In fact, while negotiations for such a test are ongoing, the parameters to be used are still being hashed out, no definite schedule has yet to be determined, and Finnish computer scientist Harry Hursti, who created this particular method for hacking into Diebold voting machines has made no plans at this time to travel to the United States to perform the hack attempt.

Such a test, if performed, could be crucial to a decision soon to be made by CA Sec. of State Bruce McPherson about whether to allow various Diebold voting systems in the state. That decision, in turn, will likely effect decisions by other states and counties around the U.S., all of whom are facing a January 1, 2006 deadline set by the Help America Vote Act (HAVA) to be met if jurisdictions are to receive millions of dollars in Federal money to help pay for "upgraded" Electoral Systems.

California's Republican Sec. of State McPherson had famously refused to re-certified Diebold's AccuVote TSx touch-screen voting machines over the summer after a major test in the state had found that some 20% of the machines had failed to perform as promised with printers jamming and screens freezing at an unacceptable rate. Diebold's machines had previously been de-certified by former Democratic Sec. of State Kevin Shelley. McPherson's sudden about-face concerning Diebold has caught many by surprise. The potential change of position towards Diebold was discovered recently and sent a shockwave through the Election Reform activist community who then converged on Sacramento to complain about the apparent flip-flop by the Sec. of State.

The Mainstream Media --- Apparently Misled by the Sec. of State --- Gets It All Wrong?

Due to a problem with Electronic Voting Machines in Los Angeles County, Gov. Arnold Schwarzenegger was told he had already voted when he showed up at the polls today to cast his ballot in the Special Election that he himself declared for California today!

He was told he'd have to use a provisional ballot, but unlike most American voters, he was eventually allowed to use a regular ballot anyway.

Los Angeles County Registrar, Conny McCormack (a huge fan of Diebold machines, and a very good friend of their sales rep here in Southern California) is trying to mitigate the damage...big time...Though she admits that someone "breached protocol in advance of the election"

It should be further noted, that the Governator was attempting to vote in Brentwood (in Los Angeles County), but the "breach" --- which would have kept a normal non-Gubernatorial citizen from voting on anything but a provisional ballot --- occurred in Pasadena, about a 30 to 45 minute drive from Brentwood. Early voting, on paperless Diebold Touch-Screen Voting Machines, has been occurring in Los Angles County for the last several weeks.

From Los Angeles Times... [emphasis added]

(Thanks to John Gideon of www.votersunite.org for alerting us about this one!)

CORRECTION: The original version of this article had said that Schwarzenegger had voted in Sacramento. Schwarzenegger had, in fact, voted at his Brentwood precinct, which is in Los Angeles County. The BRAD BLOG regrets the error.

I just finished a radio appearance a couple of hours ago with our friend Peter B. Collins on KXRA 540AM up in Monterey, CA. Peter was joined, in studio, by Tony Anchundo, the Registrar of Voters in Monterey County, CA for a demonstration of a brand-spankin' new Sequoia DRE (touch-screen) voting machine that Achundo was very proud to announce would be in use for the first time in the special State Election coming up out here on November 8th.

Achundo walked Peter through the use of the machine, which prints out a "paper record" (as Achundo referred to it) that voters are to "verify" before leaving the voting booth. That "paper record" is printed on a small thermal-ink roll of paper, akin to what you get with a credit card purchase, and stays behind plexiglass, never to be touched by the voter.

The votes, however, are counted on a "memory cartridge" in the machine, not on the "paper record." This raises the question (which I attempted to ask many times, in many different ways) as to what good that "paper record" actually is in the first place...beyond giving the voter a completely false sense of security and confidence.

I was able to get Anchundo to confirm that the entire technology used to count votes in Monterey County, California will have to be "faith-based". We'll just have to "trust" him, and his 30 years of experience as Registrar, that everything is fine and that votes will be counted accurately.

Peter has asked me to to join him by phone for the hour to help ask questions of Anchundo. I was happy and honored to do so. The results of the hour, I believe, are astounding.

The audio of the full hour is here in MP3 format. I think BRAD BLOG readers will find it as enlightening --- and troubling --- as I did.

[UPDATE] Here is a full transcript of the hour! It should be very useful to have a "paper record" of the conversation for the future. Perhaps for November 9th.

As the front page of Monterey County's website says, "The most serious threat to our democracy is the notion that it has already been achieved. The quality of our leaders and the direction of our Country depends on the participation of our people." I've therefore include Contact info for the Registrar's office at the end of this post, so you folks can participate as you see fit.

Amongst the many highlights (based on my short-term memory) of the hour just spent with Peter trying to get direct answers from Anchundo on a variety of related issues (and you'll likely come across many more yourself)...

Great news from today's Oakland Tribune! California, the country's largest voting "market" rejects Diebold. Again...And hopefully for the last time...

According to the LA Times...

Imagine that.

Yesterday Bev Harris' BlackBoxVoting.org site began issuing "Bandwidth Exceeded" messages to users attempting to access the site. Such a message generally occurs when more users are attempting to access the site than the server can comfortably handle or when the bandwidth allocated by the domain's Internet Provider is exceeded.

Today, attempts to access the site now simply return a "Cannot Find Server" page, leading me to believe that hack attempts and/or Distributed Denial of Service (DDoS) attacks have been successful for the time being. [UPDATE: BlackBoxVoting.org is now finally back online. At least for now.]

We have had such attacks here at the BRAD BLOG for the last three days which have taken us similarly down and/or greatly slowed page retrieval at various times. Given the much higher profile BBV has had, it's little surprise that folks who'd rather see patriotic efforts like theirs discontinued would work feverishly to disrupt it.

Ms. Harris and BBV has been spearheading a huge "Freedom of Information Act" filing to collect and review audit logs and other materials from the election in some 3,000 US counties, and thus, her group has attracted quite a bit of attention in the past week. BBV has been attempting to warn Americans for at least the past year about the ticking time-bombs of unregulated, unauditable, and privately owned Electronic Voting machines and their corporate owners (the vast majority of them very closely tied to the Republican party).

Attempts to silence and/or disrupt sites like hers and ours, I believe, speak volumes in support of the underlying charges that we've been making. If there was nothing to fear in examining the inner-workings of these companies, and the way that our votes our counted --- specifically in last week's election --- there would be no reason to attempt to silence and disrupt those who are attempting to do so.

In other words, if the election was clean and fair, what's the fear of giving it a close inspection?

Now perhaps the problem at BBV really is simply related to an overage of bandwidth demand, however, given past attacks the site has received, similar attacks here, and the message changing from "Bandwidth Exceeded" to "Cannot Find Server", I'm inclined to believe that the problem is hostile attacks.

To those who claim that the roughly 150,000 (so far) documented votes that have been reported and confirmed by Election Officials as being mis-allocated would not have changed any election results, I'd point out:

1) Those are just the numbers reported by a mainstream media which by and large went "on vacation" after Kerry's "concession" last Wednesday.

2) Many of those mistabulated and/or lost votes discovered were due to software errors that likely exist on many other identical computers in many other counties in America where they may not yet have been noticed and/or reported.

3) The results of at least one ballot initiative last Tuesday has already been reversed when 70,000 previously mis-counted votes due to "software error" were "discovered" in Broward County, FL!

4) There has been a long record of elections in this country being mis-tabulated and/or reversed due to Electronic Voting Machine error in recent history.

Chapter 2 of Bev Harris' book, Black Box Voting outlines tons of those recently overturned elections. Here's the PDF version of Chapter 2, but since it's currently offline as of this posting, here's a summary of just a few such recent incidents summarized courtesy of Hunter over at DailyKos:

If an official investigation doesn't take place immediately, there is little hope of determing the correct winner of any number of races from last week's election. Not the least of which is the race for President of the United States. And I would think, especially after four years of questions about George W. Bush's legitimacy as "President" that even the Right Wingnuts would like to be able to demonstrate once and for all to the American People that he was, in fact, legitimately elected this time.

For more on the suddenly silent Right Wingers, see my recent BuzzFlash Editorial. And be sure to sign this Online Petition calling for an immediate investigation!

From Electoral-Vote.com:

Arnold Schwarzenegger is asking for input on the issue of "Same-Sex Marriage".

Call the Governator's Hotline at (916) 445-2841, then hit -5- for "Hot Issues", -1- to choose "Same-Sex Marriage", and then --- hopefully --- -1- to express SUPPORT for equal civil rights in America!