California Secretary of State Moves To Tap Voting Machine Source Code

California Secretary of State Debra Bowen has taken the unprecedented step of pursuing access to a voting system vendor's source code located in escrow. According to a release from Bowen's office, the action was taken after the vendor -- Election Systems & Software Inc. (ES&S) -- refused to provide it to the Secretary of State's office as part of the top-to-bottom review of California's voting systems.

"I'm not going to stand by and watch ES&S ignore the State of California and, in particular, the voters of Los Angeles County by refusing to abide by the certification conditions that were imposed when ES&S's InkaVote Plus Voting System was certified last year," said Bowen.

Secretary Bowen announced in February her intent to conduct a top-to-bottom review of the voting systems certified for use in California.  ES&S was first notified 87 days ago -- on March 26 -- that it had 30 days, under the conditions imposed in April 2006 by the previous Secretary of State when he certified the InkaVote Plus Voting System, to provide the Secretary of State with its equipment, a certified version of the source code, funding to cover the reasonable cost of conducting the review, and an acknowledgement of the terms of a confidentiality agreement.  The company has provided the Secretary of State's office with some voting system equipment, but nothing else.

"ES&S is clearly trying to undermine the review by refusing to abide by the conditions that were imposed in order for its InkaVote Plus system to be certified for use in California last year," continued Bowen. "That leaves me with no choice but to use the authority I have under the law to require the escrow company to provide me with a copy of ES&S's source code."

California Elections Code Section 19103 requires voting system vendors doing business in the state to place an exact copy of their certified source code for ballot tally software programs into an approved escrow facility, said the Secretary of State's Office. The law gives the Secretary of State broad authority to access the source code held in escrow for any purpose deemed necessary to fulfill the provisions of the Elections Code, including those concerning the review and approval of voting systems.  

The California Legislature gave the Secretary of State this broad power to access escrowed ballot tally source code in 2004 and since that time, a number of other states have adopted similar laws.  However, it appears this is the first time anywhere in the nation that a Secretary of State has been forced to request a copy of a vendor's source code from an escrow facility in order to review it.

Of the four vendors that want to use a current version of their systems in California's 2008 elections, said the Secretary of State's Office, only ES&S has refused to provide all of the information necessary to conduct the top-to-bottom review.  The system in question -- the InkaVote Plus Voting System -- is not used anywhere in California other than Los Angeles County.