brennan center for justice

The publicity around the problems in Butler County, Ohio in March 2008 may have saved thousandsof votes on Election Day the following November. It is impossible to know how many votes were lostbefore the problem was so widely publicized.Nor was the mere reporting of the problem to the vendor in 2008 enough to guarantee that the 29 otherStates using this system that year would have known how to protect themselves from similar problems.As the rest of this case study shows, it was the extreme vigilance of the Butler County Board of Electionsand the Ohio Secretary of State that resulted in the full scope of the problem being revealed.On April 4, 2008, the Butler County Board of Elections sent a letter to Premier and copied the Secretaryof State, Jennifer Brunner, notifying Premier of the problem. 38 The Board sent a follow up letter toPremier on April 9, 2008 notifying them of a recurrence of the problem. 39On May 16, 2008, in response to Butler County’s complaint, Premier issued a report that blamed theproblem on antivirus software the county had run on their system as well as human error. 40County Election Director Betty McGary reports that on May 23, she wrote to Dave Byrd, Presidentof Premier, calling their report “highly speculative,” and rejecting their assumptions. She states that sherequested Premier continue to research and diagnose the root source of the discrepancies. 41Had Butler County’s Board of Elections been less persistent, that might have been the end of the story. Otherelection officials using this system around the country might not have learned of the problems experienced inButler County, and almost certainly would not have discovered its true cause.Fortunately, the Butler County Board asked the Ohio Secretary of State’s office to assist it in its owninvestigation of the problem. On August 6-7, 2008, Butler County election officials and the OhioSecretary of State conducted a simulation of the vote counting process with Premier observers. Theyconducted eight of these simulations over two days – in some cases disabling the antivirus softwarePremier had blamed for the malfunction, in other cases enabling it. 42The testing revealed that the machines dropped votes during multiple memory card uploads fromindividual voting machines onto the county server regardless of whether the antivirus software wasenabled. 43After the testing, Premier conceded that the apparent root cause for the problem was an error with theirserver software, which the company determined “contains a logic error” that can sometimes result indropped votes from a sharing violation when multiple cards from individual machines were uploadedat the same time. 44Following its additional investigation, Premier sent a product advisory to all counties using its systemsdetailing procedures intended to “mitigate and reveal this issue should it occur.” 45Director McGary supports a mandatory requirement for “voting machine vendors to report allmalfunctions and complaints they receive from election officials to a central and searchable database,”noting that “such reporting should be mandatory.” 46Brennan Center for Justice | 11