Diebold Election Systems is trying to get around the new law, and a suit filed this month says the State Board of Elections is letting them do it.
At issue is the ability to ensure that voting machines can't be manipulated or tampered with, and to be able to go back after an election and recount the votes. Advocates for openness say that as voting machines become electronic, transparency in the software is the only way to ensure transparency in the elections process.
A law passed by the General Assembly over the summer requires voting machine makers to hand over all source code used in automated voting machines and the names of the programmers who created it. On Nov. 4, Diebold sued the Board of Elections, saying the company can't hand over proprietary or third party software for review. A Wake County Superior Court judge said Diebold had to hand over the code or, by state law, Diebold couldn't legally sell voting equipment for next year's elections.
Three days after the judge denied Diebold's claim and threw out the case, the State Board of Elections certified Diebold's voting machines. Now, Joyce McCloy, a voting rights activist from Forsyth County backed by the Electronic Frontier Foundation, is suing the State Board of Elections to force the certification process to follow state law.
The saga goes back to August, when the General Assembly passed the Public Confidence in Elections bill in a 104-0 vote. The bill included the requirement that companies show all source code and names of programmers for review before the Board of Elections could certify machines for sale to individual counties. The code needs to meet specific security criteria before the board can certify it.
Matt Zimmerman, staff attorney for the Electronic Frontier Foundation, which is representing McCloy in the suit, says the General Assembly's new elections law is "one of the most robust source code review laws" in the country.
But, Zimmerman says, the new law is "not intended to make exceptions for certain business models," referring to Diebold's use of third-party companies and proprietary software.
Last month, in its suit against the State Board of Elections over the new law, Diebold argued that the company could not turn over source code because the company either doesn't have it or revealing it could violate contracts with software companies that programmed the machines. If the company submitted a bid to the State Board of Elections without the source code, they could be liable for a Class G felony as spelled out in the new election law. A Wake County judge threw out Diebold's case contesting the requirement.
Three days after a judge denied Diebold's claim, the State Board of Elections certified Diebold and two other companies that refused to hand over source code for voting machines. Zimmerman says either the board didn't go through the source code as required by state law, or the board has "the best programmers in the world and reviewed millions of lines of code in 48 hours." The other companies whose equipment was certified without reviewing the source code were Sequoia Voting Systems and Election Systems.
McCloy is suing the elections board to require that the certification process follow state law. Zimmerman said one concern is that counties could start buying the voting machines now, only to have the equipment decertified later. McCloy is asking for a temporary injunction against sale of the machines in question while the suit is resolved.