Voting Machines Used in Disputed Race Failed Tests

Electronic voting machines that a Michigan election official said last week incorrectly tabulated vote counts during testing in the state were used in Minnesota where the senate race between Republican incumbent Norm Coleman and Democratic challenger Al Franken is in dispute.

According to an Oct. 24 letter sent to the federal Election Assistance Commission (EAC), Ruth Johnson, the Oakland County Clerk/Register of Deeds, warned that tabulating software in Election Systems & Software M-100 voting machines recorded “conflicting” vote counts during testing in her state.

The M-100 was also used in the Minnesota and in more than a dozen other states on Election Day. But there haven’t been reports from election officials in other states about irregularities. Nor have any of the congressional or senate races come as close as the Coleman and Franken battle.

On Wednesday, an unofficial vote count released by Minnesota election officials showed Coleman leading Franken by a razor-thin margin of less than .01%, or 462 votes.

That will lead to an automatic recount, which Minnesota state law said is triggered if the margin of victory is less than half of 1%. Franken went into Tuesday’s election with a slim lead over Coleman. According to exit polls, Franken won the 18-29 age group by 50% to 35%, according to polling data.

Nearly 2.9 million Minnesota voters cast their ballots, with Coleman receiving 1,210,942 to Franken's 1,210,371. A margin of 42.03% to 42.01%. The Associated Press declared Coleman the winner early Wednesday, but hours later the wire service “uncalled” the race.

It’s possible that a recount, the results of which would not be known until December, could turn out in Franken’s favor. Franken told reporters Wednesday "this is a long election and it's going to be a little longer."

Still, the electronic voting machines manufactured by Election Systems & Software (ES&S) that were used in Minnesota Tuesday are said to be unreliable, calling into question the integrity of the election.

The EAC,established by the 2002 Help America Vote Act (HAVA), launched a program to certify the integrity of e-voting machines in early 2007, but has been slow to act.

Johnson, the Oakland County Clerk, said in her letter last week to the EAC that the M-100 voting machines used in four communities Tuesday “reported inconsistent vote totals during their logic and accuracy testing.”

“The same ballots run through the same machines, yielded different results each time,” says the letter addressed to Rosemary Rodriguez, the chairwoman of the Election Assistance Commission. “ES&S determined that the primary issue [that caused the machines to formulate incorrect vote counts] was dust and debris build-up on the sensors inside the M-100” voting machine. “This has impacted the Digital to Analog Converter (DAC) settings for the two Contact Image Sensors (CIS).”

"This begs the question,” Johnson wrote. “On Election Day, will the record number of ballots going through the remaining tabulators leave even more build-up on the sensors, affecting machines that tested fine just initially? Could this additional build-up on voting tabulators that have not had any preventative maintenance skew vote totals?

“My understanding is that the problem could occur and election workers would have no inkling that ballots are being misread.”

A spokesman for ES&S did not return calls for comment.

Johnson said the warranties on the ES&S voting machines would be voided if clerks attempted to perform maintenance on the voting machines. The contract Michigan signed with ES&S does not include preventative maintenance. It's up to each city or township clerk to pay ES&S separately to perform maintenance on the machines.

"ES&S has not performed any preventative maintenance under the state contract, since the machines were delivered three years ago," Johnson wrote. "I would urge you to investigate whether vote totals could be affected by the failure to provide regular cleaning and preventative maintenance with the ES&S M-100 tabulators.”

Johnson requested “a federal directive or law that would allow county clerks, under the supervision of their bipartisan canvass board, to conduct random audits to test machine accuracy using voting tabulators that have had preventive maintenance within the last year.”

In a statement released Tuesday, Johnson said she not received a response to her request from the EAC.

A spokesman for the EAC said Tuesday he was unfamiliar with Johnson’s letter and could not comment on the matter.

Franken said Wednesday he was still in the race despite Coleman having declared victory. The former Saturday Night Live writer said his campaign was also looking into "voting irregularities", including some polling places in Minneapolis that ran out of registration materials.

Minnesota's election law says "any eligible voter, including a candidate, may contest in the manner provided in this chapter: (1) the nomination or election of any person for whom the voter had the right to vote if that person is declared nominated or elected to the senate or the house of representatives of the United States, or to a statewide, county, legislative, municipal, school, or district court office; or (2) the declared result of a constitutional amendment or other question voted upon at an election.

"The contest may be brought over an irregularity in the conduct of an election or canvass of votes, over the question of who received the largest number of votes legally cast, over the number of votes legally cast in favor of or against a question, or on the grounds of deliberate, serious, and material violations of the Minnesota election law," the state's election law says.

Franken has not officially contested the results of the election because he said "this race is too close to call, and we do not know who won."

Jason Leopold is co-founder of The Public Record, and author of the book, News Junkie, which has been optioned by a Hollywood production company.

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