After years of problems with the state's touch-screen voting system, Maryland has filed a claim to recover $8.5 million from the maker of the machines, Premier Election Solutions, Attorney General Douglas F. Gansler announced yesterday.
The claim seeks costs the state incurred to correct security gaps in the voting system that were uncovered several years ago by independent investigations. The state has paid $90 million under a contract with Premier, formerly known as Diebold, since 2001. During that time, the two parties have had a sometimes-rocky relationship as hitches in the voting system surfaced.
"Under basic contract law, this is money that should be paid by Diebold or its successor and not by the taxpayers," Gansler said in an interview. "This is sort of the final chapter of the touch-screen machines that we've had issues with in Maryland since we've gotten them."
Last year, Gov. Martin O'Malley and the General Assembly decided to eventually dump the touch-screen equipment and instead move toward buying new optical-scan machines, which read paper ballots filled in by voters with pencil or pen and allow for a manual recount. The new system is expected to cost about $20 million.
Premier President Dave Byrd said in a statement that the state's claim appears to be based on "inaccurate and unfounded assumptions." He also said the 2008 election, in which Premier's machines were used, was one of the "smoothest" in the state's history, culminating what he called a "seven-year track record of success."
The "claim may be an attempt to retroactively change the rules of the contracts, but it does not change or reflect the actual record of successful performance," Byrd said.
State officials contend, however, that the November election came off with few glitches precisely because they had spent so much money on upgrades and technical fixes. According to the claim, the state Board of Elections has implemented, largely at its own expense, measures to correct flaws uncovered by assessments ordered by former Gov. Robert L. Ehrlich Jr. and by the General Assembly.
Premier and the state haven't always been on the outs. After warnings about security vulnerabilities from three computer experts - Johns Hopkins University professor Avi Rubin and the two hired by the state - a voter advocacy group sued in 2004. The group alleged that the state should not have certified Premier's machines for use in elections. The state defended Premier at the time, and won.
That history is not lost on Premier, which said its good relations with the state made the attorney general's recent claim "all the more of a surprise," according to the company's written response.
The company said its system satisfies contractual security requirements and that the state decided to incorporate additional measures based on the reports it commissioned. The company's response relied in part on the state's legal defense from four years ago that contended no system is perfect and pointed out that there had not been a single report of a security breach.
Premier also said that it has provided additional services and materials beyond what was required under the contract at no additional charge.
Other problems have surfaced that aren't addressed in the state's claim. Diebold had to replace parts in voting machines used in the 2004 election because of glitches in the "motherboard," the main circuit board, that could cause the machines to freeze. Then in the 2006 primary election, the state's new "e-poll books," electronic check-in terminals made by Diebold that are distinct from the touch-screen voting units, crashed repeatedly.
"Voter confidence and the integrity of the process were undermined by the use of these machines," Gansler said. "It took nearly 10 years for us to figure out we shouldn't be using them, but during the course of that time we did everything we could to ensure reliability."
The claim now goes before a state procurement officer, whose decision on the matter could then be petitioned to the Maryland State Board of Contract Appeals. Until the dispute is settled, the state is withholding payment on $4 million in bills for services Premier provided for the 2008 elections.