The risk from tampering or hacking the voting machines' computer controls is heightened in this case. ES&S [Elections Systems and Software] itself presents a security threat to U.S. elections, including those in Allegheny County, because of the company's and its senior executives' strong partisan ties. Like Allegheny County's first choice --- Diebold --- ES&S poses unacceptable risks of partiality and bias which will, at a minimum, undermine public trust in the fairness of elections.

ES&S is an Omaha, Nebraska-based company which declines to fully reveal its ownership. According to published reports, about half of ES&S is owned by the Omaha World-Herald Company, the publisher of Omaha's daily newspaper, and another quarter of the company is owned by the McCarthy Group, an Omaha investment fund. The other owners, if any, are unknown, as is the full ownership of the McCarthy Group.

Republican U.S. Senator Chuck Hagel was the head of ES&S's predecessor, American Information Systems (AIS) until 1995, when he resigned to run for Senate. Senator Hagel continues to own a multi-million dollar interest in the McCarthy Group, Inc., of which ES&S is a subsidiary. In the past, Senator Hagel � widely considered a likely Republican presidential contender in 2008 --- has failed to fully disclose his financial ties to ES&S.

Michael McCarthy, CEO of the McCarthy Group, Inc. acted as Senator Hagel's campaign manager in both the 1996 and 2002 elections.

In 2006, McCarthy contributed money to the Sandhills PAC, which contributed money to Rick Santorum, the Senate Republican incumbent for Pennsylvania, who will be on the May 16 primary ballot in Allegheny County. According to published reports, in the past three election cycles, Michael McCarthy and his wife contributed substantial sums of money to Republican candidates and nothing to Democrats, while in the last five and half years, executives and employees of the McCarthy Group, Inc. contributed almost six times as much money to the GOP as to Democratic candidates.

Strong partisan ties, combined with a lack of transparency regarding the ownership of this company, will lead to public questions about the integrity of the voting process, which in turn will diminish voters' confidence in that process. Such voter concerns are well founded.

Defendants Kim and Gonzales, acting on behalf of the United States and the Department of Justice, have threatened legal action against the Secretary and against the Commonwealth of Pennsylvania unless the State and County Defendants immediately adopt new voting machines for the May 16 primary.

This threat, combined with the threat to seek recoupment of monies paid to Pennsylvania under HAVA, has prompted the State and County Defendants to rush to acquire and implement new voting technologies without regard for the security, reliability, and accessibility of the new machines, and without regard for the chaos which is certain to result on Election Day if the machines are placed in use.

Despite these threats, the Department of Justice has taken a sharply different approach in a similar matter in the adjoining state of New York, by recognizing that the Department does not "expect the impossible" when it comes to matters affecting the fundamental right to vote. In New York, the Department of Justice has made clear that it would not pursue legal action if circumstances did not permit the State to adopt new machines prior to the first federal election of 2006.

Defendants' actions ... treating the Commonwealth of Pennsylvania, the plaintiffs, and Allegheny County unequally on the basis of the same relevant facts ... violate plaintiffs' right to due process of law, as protected by the Fifth Amendment to the U.S. Constitution.

This unequal system serves no compelling interest, lacks any substantial relationship to any important federal interest, and is not rationally related to any legitimate federal interest.

Defendants' illegal actions may only be cured by declaratory and injunctive relief, requiring Defendants Kim and Gonzales to treat Pennsylvania and Allegheny County (and the voters of Allegheny County) equally to the voters of other states, and to refrain from litigation or the threat of litigation if Allegheny County does not adopt new voting systems for the May 16 primary or thereafter.

Also yesterday, the county announced that ES&S will provide 2,628 of the iVotronics for the May primary, enough to have two in every precinct. The company will also provide an optical scan machine to read paper ballots cast in the primary, and will deliver all 4,700 iVotronics in time for November's general election.

In addition, the county unveiled plans to equip one of the two machines at each precinct with "sip and puff" technology, which allows disabled voters with restricted mobility to cast their ballots without assistance.

Also, each of the county's electronic voting machines will be modified to produce voter-verified paper audit trails. Both upgrades, however, require state certification.

1. Declaring that the iVotronic and M650 voting machines, as described above, fail to comply with ... 301 of HAVA;
2. Declaring that the certification by the Secretary that the iVotronic and M650 were HAVA-compliant is null and void, and that these voting systems, as described above, do not in fact comply with HAVA;
3. Preliminarily and permanently enjoining Defendants from purchasing or using iVotronic and M650 voting machines for use in any election for federal office in Allegheny County or elsewhere on May 16, 2006 or in the November general election;
4. Preliminarily and permanently enjoining Defendants from depriving Plaintiffs of their federally-protected right that only HAVA-compliant electronic voting machines be used in the primary election of May 16, 2006 and in the November general election;
5. Preliminarily and permanently enjoining the Secretary from interfering with the Board of Elections' use of the existing lever system until such time as the Board may purchase HAVA-compliant voting machines for use in Allegheny County;
6. Requiring Defendants Kim and Gonzales to refrain from litigation or the threat of litigation if Allegheny County does not adopt new voting systems for the May 16 primary or thereafter;
7. Declaring that, as to Defendants Kim and Gonzales, the use of existing lever machines in the May 16 primary provides no basis for litigation or the threat of litigation or efforts to seek recoupment of monies paid to Pennsylvania for the benefit of Allegheny County in connection with HAVA;
8. Awarding plaintiffs' their reasonable attorneys' fees and expenses; and
9. Such other and further relief as may be just and necessary.