Attorney Andi Novick Tells NY Officials Why The Vendors Lack Integrity
By John Gideon on 8/1/2007, 8:00am PT  

Guest Blogged by John Gideon, VotersUnite.Org

In a recently released report, New York Attorney Andrea Novick, Esq., tells members of New York state government and now the world that the vendors of the voting machines that most of us use are NOT responsible citizens and why. This report was written for, and addressed to, Governor Spitzer, the State Board of Elections and the State Legislature.

In her report Novick explains that New York state has laws that should bar any of the vendors from doing business in the state.

New York State is about to start testing the products of vendors who by any reasonable application of the State Finance Law (SFL) and New York State Comptroller's Procurement and Disbursement Guidelines (Vendex rules) should be barred from doing business in New York. I have included below a partial documentation of the available evidence revealing the myriad of ways in which the vendors fail to meet the criteria for responsible contractors. The State is responsible for affirmatively requiring all necessary disclosure to satisfy itself of the sufficiency of a vendor's responsibility. To assist in this effort, I have prepared this memo.

New York State Law states the following about corporate integrity...

  • 1. The Corporation must show a history of legal and ethical behavior. Corporations with a history of the following are prohibited from contracting with local jurisdictions to provide voting equipment: criminal indictments, criminal convictions, civil fines and injunctions imposed by governmental agencies, anti-trust investigations, ethical violations, tax delinquencies, debarment by the federal government, prior determinations of integrity-related non-responsibility, and other indications of illegal or unethical behaviors.
  • 2. The Corporation must have performed at acceptable levels on other governmental contracts. Corporations with a history of the following are prohibited from contracting with local jurisdictions to provide voting equipment: reports of less than satisfactory performance, early contract termination for cause, contract abandonment, court determinations of breach of contract, other indications of bad faith.

    • Novick gives examples as to how Election Systems and Software (ES&S), Diebold Election Systems Inc., Sequoia Voting Systems, Liberty Election Systems (NEDAP) and Avante have all shown a lack of integrity to perform the contract and failures in performance. These five companies are now all attempting to get a foothold in what will be a very lucrative venture when New York finally settles on what will replace their lever voting machines.

    Novick supports her accusations with historical facts about each of the vendors.

    For ES&S the report begins:

    ES&S's current ethical violations, violations of state laws and civil fines and injunctions, as documented below, are significant enough to demonstrate the company's ineligibility to do business in New York. It is inconceivable that this state, particularly under this Governor, would choose to do business with ES&S given the repeated complaints across the nation of abusive and irresponsible business practices. These include repeated acts of lying to and threatening of state officials. Some background history of how ES&S came into existence sheds light on who this company that New York is nonetheless proposing to do business with, really is. The companies which have been merged into what is now ES&S reflect the very abuses Governor Spitzer targeted as Attorney General.

    Diebold's financial problems are highlighted:

    As of March 31, 2006, there were ten outstanding lawsuits against Diebold charging Securities and Exchange Commission (SEC) violations. The Voters Unite report referenced at footnote 1, describes a securities fraud class action suit filed against Diebold in December, 2005 on behalf of investors who allege a fraudulent scheme by Diebold and its executives to deceive shareholders. The SEC is formally investigating.

    Novick then goes into detail about the founding of Diebold Election Systems Inc. as Macrotrends, in 1988, and the felons who founded that company.

    Novick begins her section on Sequoia thusly:

    The third largest electronic voting machine manufacturer has demonstrated the very unethical business practices condemned by Governor Spitzer's Public Employee Ethics Reform Act of 2007. Sequoia's revolving door practices are precisely the kind of behavior the Governor has singled out as prohibited in New York. In addition Sequoia has shown the same lack of ethics and violations of the Vendex rules as have the other vendors. The violations relevant to consideration pursuant to the Law are highlighted below. Sequoia's rampant corruption and regular violations of New York's Law and rules should enjoin New York from continuing to do business or entering into new contracts with Sequoia.

    With regards to the security and accuracy of Liberty's voting machines Novick points out:

    In 2003, Ireland spent 50 million euros on 7500 Nedap DREs, but has never used the machines because of their vulnerabilities. The Irish government created an Independent Commission on Electronic Voting (the Irish Commission) to examine the security of these DREs. The Irish Commission published two reports that raised critical doubts about the accuracy and reliability of the software used to count votes on the Nedap/Liberty DREs.39 In September 2006 an independent Dutch voting integrity group published a highly critical analysis of the Nedap/Liberty DREs, revealing how easily the machines could be hacked and how open they were to undetectable control over the election results.

    With regards to Avante, Novick points out that the voting system is new since 2001 and has not been certified anywhere. Therefore there is no history. However, Avanti seems to be learning from it's older cousins. In 2005 New York state adopted a law that requires election machine source code be archived with the state. Avante uses Microsoft proprietary software for their operating system and their election management system. Avante knew that source code escrow law existed but they ignored it when they coded their machines. On the eve of the beginning of the state's selection process, Avante and Microsoft attempted to convince the state election commissioners to ignore the law.

    Novick points to the following:

    Perhaps the clearest example of Avante's lack of integrity to do business in New York is exposed in the closing lines of Mr. Gleim's [Rick Gleim, Avante Vice President] email. Trust us, Avante concludes because “Vendors voting equipment has been proven worthy around the country.” Really? One needs only look at the extensive evidence of faulty equipment, excessive breakdowns, tampering, vote flipping, mysterious under votes, impossible vote tabulations, etc. to see Mr. Gleim's claim is patently false.

    Novick begins her conclusion with this:

    A reasonable interpretation of the State Finance Law and the Vendex rules should prohibit the State's entering into contracts with any of these voting vendors on the myriad of grounds set forth herein. The documented evidence provided in this memo, as well as in the article from Voters Unite referred to at footnote 1, entitled Voting System Companies Fail to Meet New York State’s Requirements for "Responsible Contractors", as well as the additional evidence available to the SBOE when it undertakes its investigation of these vendors, overwhelmingly establish these vendors ineligibility to do business in New York.

    NOTE: It is important that credit also be given to Ellen Theisen of VotersUnite.Org who provided some of the information used by Novick in writing her report. Theisen has also written a report on the same subject matter; "Voting System Companies Fail to Meet New York State’s Requirements for “Responsible Contractors”".

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    Article Categories: Diebold/Premier, ES&S, Election Reform, Sequoia Voting Systems, New York