"Extremely troubling questions"

Herrera sues voting systems company

San Francisco City Attorney Dennis Herrera
Photo by Luke Thomas

From the Office of City Attorney Dennis Herrera

November 20, 2007

Herrera Sues City's Elections Vendor, Alleging Fraud, False Claims, Breach of Contract In Litigation Against 'World's Largest' Voting Systems Provider, S.F. Seeks Damages, Penalties and Costs That Could Reach Into the Millions of Dollars

City Attorney Dennis Herrera filed suit against the City's voting systems vendor today, charging Omaha, Neb.-based Election Systems & Software, Inc. with a panoply of wrongdoing that includes fraud, breach of contract, negligent misrepresentation and multiple violations of California's Elections Code, False Claims Act and Unfair Competition Law. In a 23-page civil complaint filed in San Francisco Superior Court this morning, Herrera detailed a months-long pattern of misrepresentations and voting system problems by ES&S that caused California Secretary of State Debra Bowen to impose stringent conditions on the City's use of the company's voting machines to conduct its municipal election earlier this month. Because of those restrictions, San Francisco election officials were forced to tabulate ballots centrally; to remake thousands of ballots by hand; and to borrow equipment from another county. City elections officials were unable to release election results from the polling places on election night as is the ordinary practice, and do not expect to announce final results for San Francisco's municipal election until Dec. 4, 2007 -- fully four weeks after Election Day.

"San Francisco's experience with ES&S raises extremely troubling questions, not simply about the integrity of this company's technology, but about the integrity of this company itself," said Herrera. "There can be no more important duty in a representative democracy than to conduct elections, and it is a travesty to see that duty so flagrantly undermined by the fraudulent conduct of an election systems vendor. This is an injustice that cries out for a strong response, and I intend to aggressively litigate the City's interests under our contract and under the law."

Today's lawsuit makes good on Herrera's threat to sue in a letter to ES&S President and CEO Aldo Tesi the day after the Nov. 6 election, in which the City Attorney gave the company until yesterday to cure its contractual breaches and commit to compensate the City for added costs. ES&S refused. Herrera's civil action seeks damages, civil penalties and all legal costs to be determined at trial, but which could reach well into millions of dollars based on the causes of action alleged. Under California law, violations of the False Claims Act alone can result in damages equal to three times the amount of actual damages suffered by a successful plaintiff -- in addition to legal costs and fees.

Describing itself on its Web site as "the world's largest and most experienced provider of total election management solutions with more than 170,000 systems installed worldwide," ES&S has come under fire from watchdog organizations and elections administrators with increasing regularity in recent months. The State of Colorado last month suspended its certification process of ES&S's voting system, citing "a history of coordination issues with your company."

Yesterday, California Secretary of State Bowen filed a separate lawsuit against ES&S seeking damages of up to $50,000 per violation plus reimbursement of the amounts paid by the counties for the company's sale of 972 AutoMark A200 voting machines that had not been certified for use to the Counties of Colusa, Marin, Merced and Solano as well as the City and County of San Francisco.

Herrera's case is City and County of San Francisco et al v. Election System and Software, Inc., San Francisco Superior Court, filed Nov. 20, 2007.

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