County loses lawsuit over voting machines

Thursday, 19 March 2009 22:09

By Joe Pinchot of The Herald (Ohio)

MERCER COUNTY —

A federal judge has sided with the provider of Mercer County’s former voting machine system in a breach of contract suit.

The ruling not only deprives the county of money officials said they lost when the UniLect Patriot voting system was decertified, but of an answer as to how they can protect themselves — and wisely spend taxpayer money — in an era of ever-changing voting machine standards.
When the county bought the UniLect machines in January 2001, “Neither party contemplated a situation where a voting machine that had in fact been certified by the commonwealth would ever be decertified,” said county litigation solicitor William G. McConnell Jr.

But, county officials all across the country are faced with upcoming federal certification standards that 90 percent of the existing machines will not meet, said Mercer County Director of Registration and Election Jeff Greenburg.

The situation is no easier for the companies that make the machines because they do not want to invest in creating machines that will soon be obsolete, and might not be able to make new ones that will meet new standards, he said.

“Lawmakers have to look at it and see if there a way to protect taxpayers,” Greenburg said. “We are reliant on state and federal officials to certify voting systems. We have to trust that they are doing their jobs. It puts counties in a very difficult position. The counties, in the end, are always caught holding the bag.”

The new federal standards are to be in effect by 2012, forcing county officials to pay to upgrade the current machines, if that is possible, or buy new machines, Greenburg said.

In the suit, county officials claimed UniLect officials promised that their equipment would conform to state specifications. If the machines did not conform, UniLect was supposed to correct them so they would, the county said.

The machines were decertified by the state on April 27, 2005, which disallowed their use for elections.

UniLect officials have blamed county officials with making coding errors and failing to test the machines, and said the state consultant who decertified the machines did so based on subjective requirements.

UniLect, of Danville, Calif., also said its one-year warranty had expired and that language in UniLect’s proposal that “merely hypothesizes about the useful life of the product” is not a warranty.

The summary judgment motions filed April 1 by the county and UniLect center on this paragraph in the sales contract:

“UniLect warrants the products, as delivered, will conform with and perform according to the specifications required by the State of Pennsylvania as well as conform with and perform according to the specifications in this proposal and any contract arising therefrom. If any programs should not so perform, they shall be corrected or replaced by UniLect in a timely manner as mutually agreed.”

McConnell said the paragraph and other language in the contract shows that UniLect’s warranty was intended to cover the life of the voting machine system.

UniLect, represented by David D. Langfitt of Philadelphia, said the phrase “as delivered” means the machines will meet state certification requirements at the time the county receives them for use, and is not a commitment to the future, he said.

In her opinion filed, Tuesday, U.S. District Court Judge Joy Flowers Conti said agreed with UniLect.

“The warranty does not contain an explicit, unequivocal or specific expression of an intent to guarantee that the Patriot will meet certification standards after the date of delivery,” she said. “The certification warranty does not contain an unequivocal reference to any date, let alone a date in the future.”

A statement about the machines having a useful life of 20 to 25 years concerned the mechanics of the system, and was made in context of the technology used by the system being common and the hardware being abundant and easily replaceable, she said.

“Under those circumstances, the court concludes that no reasonable finder of fact could find that statement to be anything other than puffery,” Judge Conti said, with puffery meaning an opinion.

The county’s interpretation of the contract would require UniLect to comply with certification standards set in the future, she said.

While county officials are disappointed at the outcome, McConnell said he was glad the former board of commissioners were willing to take a shot.

“The county had a good faith dispute with UniLect in regard to the warranty language in the contract,” he said. “Because we couldn’t get it resolved, we took it to court to interpret the warranty language.”

The county has been seeking to cover the purchase price of $897,000 minus the four years of use the county got from the machines, based on a 20-year life span; and the cost of renting optical-scan equipment in 2005 following the decertification. The state later reimbursed the county for the renting of the equipment, and a federal grant covered the purchase of the current voting system.

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