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October 30, 2007
Mr. Gary G. Crump
Chief Operating Officer
Election Systems & Software
11208 John Galt Boulevard
Omaha, Nebraska 68137
Re: Voting Systems Project Agreement dated December 30, 1999, between the City and County of San Francisco and Election Systems and Software, Inc., as amended by the First Amendment dated March 24, 2000, by the Second Amendment dated May 27, 2003, by the Third Amendment dated February 25, 2004, by the Fourth Amendment dated April 15, 2005, by the Fifth Amendment dated April 10, 2006, by the Sixth Amendment dated July 3, 2006, and by the Seventh Amendment dated March 6, 2007 (the "Agreement")
Dear Mr. Crump:
Thank you for your letter of October 18, 2007 responding to my letter of September 20, 2007 regarding the upcoming November 6, 2007 election.
The City shares your interest in ensuring that together we run a smooth and efficient election. To this end, we appreciate ES&S' willingness to loan the City two additional IV-C units and provide the necessary personnel and resources to support the operation of these machines continuously for 24 hours each day from October 26 through November 14, if needed. This assistance will help San Francisco use its ES&S system to tally votes while still satisfying the conditions set by the Secretary of State.
We also appreciate your willingness to pay the costs associated with transporting Model 100 AutoMARK machines to and from Contra Costa County. Of course, the reason we are using Contra Costa’s machines is due to the Secretary of State’s assertion that ES&S sold Model 200 AutoMARK machines to San Francisco and four other counties in California that were not certified by the Secretary of State. As you know, on October 15, 2007, the Secretary of State held a hearing that allowed ES&S to respond to this situation.
When the City purchased its AutoMARK machines, the City was aware of the Model 100 being the only AutoMARK that was certified for use in California by the Secretary of State. And all of the materials that ES&S provided to the City upon delivery of the AutoMARK machines were explicitly for the Model 100.
In your letter of October 18, 2007, you state that the Secretary of State previously granted certification to San Francisco's AutoMARK machines on October 26, 2006 to conduct ranked-choice voting elections in November 2006. It is now clear that at the time the Secretary of State certified San Francisco's AutoMARK machines on October 26, 2006, the Secretary of State was not aware of ES&S' misrepresentations and not aware that San Francisco's AutoMARK machines were the uncertified Model 200. The Secretary of State has subsequently determined that ES&S' representations that San Francisco purchased certified AutoMARK equipment were false. And, regardless of what model received the conditional, one-time certification on October 26, 2006, this certification is no longer applicable since it is now expired.
Ultimately, ES&S has contractual and legal obligations to assume full responsibility for representations ES&S made to the City in connection with the sale of these machines. While we appreciate your willingness to pay the costs associated with transporting certified machines to and from Contra Costa County for the November 6 election, we do not believe that this accommodation fully meets your obligations. Your proposal also fails to address how the City will secure certified AutoMARK machines for future state-wide elections when the machines used by neighboring counties will be unavailable to San Francisco.
Your letter of October 18, 2007 indicates that ES&S does not believe the Secretary of State has the authority to require ES&S to pay for costs associated with the conditional certification of the ES&S voting system in use in San Francisco. We want to know the basis for your assertion that the Secretary of State has exceeded her powers in requiring ES&S to pay for these costs. The City believes the Secretary of State does possess the authority to impose a condition of reimbursement. Her authority is especially relevant when a vendor sells a system to a customer but does not bring that system forward for required testing to ultimately gain certification for that system. In the current situation, the City could not use its ES&S voting system unless the Secretary of State administratively granted limited certification. Further, the City believes that ES&S is obligated under the Agreement to pay for such costs.
Consistent with one of the suggestions in your letter, the City did seek to have the Secretary of State's office accept less restrictive conditions for the November 6 election. The State agreed to modify the manner with which to review discrepancies for ranked-choice voting contests, but otherwise has left the conditions in place.
Once the election is complete, we will pursue our options to seek appropriate compensation from ES&S for all costs associated with the Secretary of State's conditional certification and any costs incurred as a result of ES&S' sale of uncertified AutoMARK machines. We will also contact you to discuss how the City will proceed with the upcoming elections to be held in 2008.
Nothing in this letter is intended to waive any of the City's available rights or remedies against ES&S or to limit or otherwise affect any action against ES&S by the Secretary of State.
Respectfully,
John Arntz, Director
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