"Extremely troubling questions"
Herrera sues voting systems company
San Francisco City Attorney Dennis Herrera
Photo by Luke
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
"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.