"A temporary restraining order is necessary and
proper under the facts presented to the Court since release of the CD-ROM today
at 5:00 p.m. will significantly
and permanently impair the rights and interests of the public and the Secretary
of State as the custodian of those rights and interests." --Motion and
Supporting Authority for a Temporary Restraining Order, filed in DeKalb
Superior Court, State of Georgia on behalf of Cathy Cox, Secretary of State
Two months prior to leaving office Cathy Cox, Georgia's
outgoing secretary of state and the subject of much controversy, felt compelled
to stop an effort to perform a citizen audit of the state's primary and run-off
elections of July and August 2006.
Georgia's elections, like some 38 other states, are
conducted on DRE or direct record electronic voting machines which are
manufactured, upgraded and serviced by various private corporations that claim
they are unaccountable to any outside scrutiny. In Georgia's case that
corporation is Diebold Election Systems, and Diebold supplies not only the
machines but the ballots, the training, and the "proprietary"
software that counts the votes.
The most recent legal battle in Georgia began after Atlanta
attorney Mike Raffauf filed an Open Records request for a copy of the CD-ROM
"which contains a copy of the information on each memory card (PCMCIA
Card) which shall include all ballot images and ballot styles as well as vote
totals and a copy of the consolidated returns from the election management
system" for DeKalb County.
Linda Latimore, director of elections for DeKalb, responded
thus on November 3: " . . . by copy of this letter we are putting all
interested parties on notice of our intent to provide you with a copy of the
requested CD-ROM by 5:00 p.m. on
November 9, 2006."
Ms. Cox and her legal representatives felt that it was
improper for the very citizens who cast the votes to audit the results; results
that exist only in the inner workings of an electronic voting system that is
itself mired in controvery and shrouded in great secrecy. Ms. Cox apparently
felt very strongly that Georgians be kept in the dark about their votes: She
had the request to deny the release of the CD records filed with the court 25
minutes before the disk was due to be handed to the public, without notifying
Mike Raffauf she was racing to beat the deadline.
Cox and her staff contend that release of the files would
constitute a "threat to public security or property if released." One
of her staff members, Kathy Rogers, felt it necessary to send an email to
county election supervisors equating release of the data to "criminal or
terrorist acts" after Georgia citizens requested it in 2004. Also enlisted
was Ray Cobb, director of the Center for Election Systems at Kennesaw State
University, who filed a supporting affidavit with the court.
While Ms. Cox claims in her request for the restraining
order that she and her office "fully support and indeed have
advocated" for the Open Records Act, the record shows a different reality.
Numerous Open Records requests have been filed by citizens for information
regarding the voting process which have been denied or never answered.
To bolster his case, Mr. Raffauf enlisted industry expert
Yobie Benjamin to rebut the claims by Ray Cobb and Cathy Cox. Mr. Benjamin
describes his experience and expertise in his affidavit, "I have 20 years
experience with information systems management technologies . . . I am an
internationally recognized expert in computer information security and have
served in this capacity with several notable companies". Mr. Benjamin
inspected and analyzed the Diebold election system for former California
Secretary of State Kevin Shelley.
According to Mr. Benjamin, "Release of election data
that was recently publicly available should not cause this level of security
risk. There is clearly something deficient with this election system."
Benjamin continued, "Regarding the claims made by Mr.
Cobb's affidavit that the files 'contain encryption codes that could be used in
an attempt to modify, 'spoof', 'crack' or 'hack' the GEMS [Global Election
Management System] software or the receipt or tabulation of votes using the
GEMS software.' It is common practice in commercial and government industry to
regularly change security codes and points of access as part of a prudent
In fact, the certification test of the Diebold Election
System prepared by KSU for the office of the Secretary of State in July 2006
states that the dynamic password on a Poll Manager Card "has a six digit
password and allows this password to be changed as often as desired."
Similarly, the password on Voter Access Cards can be changed to ensure security.
Surely this most basic of security tenets would be followed in elections and
this information would be changed as often as deemed necessary. Had industry
standards been applied in the voting system and passwords and other security
related information been changed after the election, Mr. Cobb's assertion is a
red herring. If not, security concerns move well beyond the release of records
regarding a closed election and speak to the apparent incompetence of those
entrusted to protect the votes.
Furthermore, in response to Cobb's claim that the CD data
cannot be reproduced without copying security information, Benjamin calls this
an "ignorant assertion" as any bit or byte of data in any computer
system can be isolated securely by any competent computer professional.
Concludes Mr. Benjamin, "Election results and ballots
should be made public irrespective of its form or format. It is up to the
public to decide how they utilize this information."
Why is the release of this information so vital to the citizens
of Georgia? First there is the question of "who owns the votes."
Diebold and other manufacturers have consistently insisted that the vote
tabulation software is private company property and have fought vehemently to
stop any independent scrutiny. There are other concerns and issues as well
which are specific to this election and merit in-depth study: In almost 50
percent of DeKalb County precincts, the number of cast ballots did not match
the number of signed voter certificates; undervotes were unusually high,
exceeding 40 percent in some races; 106,000 ballots statewide (14 percent of
the voters) did not record a choice for the U.S. Senate, the "top of the
According to Cathy Cox, it seems, the interests of a private
corporation take precedent over the rights of the state's citizens to know how
their votes are tallied in state elections. As the official
"protector" of our votes, just who is Ms. Cox protecting? One has to
ask why Ms. Cox would feel the need to halt the release of information that, in
fact, already belongs to each and every voter in Georgia. Why rush in just
minutes before the deadline in a secret and faulty court filing? Just who are
the "interested parties" in our elections, Diebold or the citizenry?
And just how do the results of a public election "significantly and
permanently impair the rights and interests of the public" as Cox claims?
These and other lingering questions should be asked and
answered under oath by Cathy Cox prior to leaving office. It seems likely, however,
that the ever-expanding voting scandal will be inherited by incoming Secretary
of State Karen Handel.
In her position papers prior to election, Ms. Handel claimed
that our voting system is both insecure and outdated and promised to replace it
with one that provides a Voter Verified Paper Ballot. But will any new system
continue the history of secrecy and subterfuge exhibited by Diebold and their
apologists or herald a new era of openness and transparency so desperately
needed in this arena so critical to our democracy?
fact remains that we already have the capability to provide a Voter Verified
Paper Ballot utilizing Optical Scan technology. Not only would this solution be
much preferable than would pouring millions more dollars down the Diebold money
pit, it would provide something that DRE voting can never attain: clear voter
intent. If Ms. Handel hopes to regain public confidence in elections her office
should explore and pursue any options that put the votes back where they
belong: in the hands of the people.