The EFF complaint was also filed on behalf of Winston-Salem, N.C., resident Joyce McCloy, who has been an e-voting activist in the state for the past several years and is the founder of the North Carolina Coalition for Verified Voting.
According to the lawsuit, the Election Board's Dec. 1 certifications of the three e-voting systems do not comply with state e-voting equipment laws enacted in August because the vendors were unable to provide the source code for proprietary, third-party software included in their voting systems. The e-voting law, enacted to correct problems with the state's previous e-voting rules, requires the Elections Board to hold in escrow all software used by an e-voting system so it can be reviewed for security and accuracy prior to being certified, according to the lawsuit. Instead, the board certified the systems first and said the code reviews could take place "within 15 working days of the contract award." That provision is not included in the new state law, the EFF said.
"Today's suit says that the Board of Elections simply had no power to approve systems that didn't meet the statutes," said Matt Zimmerman, staff attorney for the EFF. "You have a complete cart-before-the-horse problem here. You can't simply make up your own steps."
Gary O. Bartlett, executive director of the Election Board, said Friday that he could not comment on pending litigation.
The three vendors whose systems were certified are Diebold Election Systems Inc. of Allen, Texas; Sequoia Voting Systems of Oakland, Calif.; and Election Systems and Software of Omaha. None of the vendors was named as defendants in the lawsuit.
David Bear, a spokesman for Diebold, said the vendors can't fully comply with the new state law because they can't provide the source code for the third-party applications in their e-voting systems. "The company wants to be in complete compliance with the law, but we felt there might be some difficulties in doing that," Bear said. "We are continuing to work with the state, as are the other vendors, because the state has determined that none of the vendors can comply."
Last month, Diebold filed a lawsuit in North Carolina asking that the company be exempted from the code escrow requirements of the new law, but that lawsuit was dismissed in court.
Ellen Bogard, a spokeswoman for Election Systems and Software, declined to comment.
Michelle Shafer, a spokeswoman for Sequoia Voting Systems, also had no comment on the lawsuit. But she pointed to a letter from Sequoia sales vice president Howard Cramer to Bartlett at the Elections Board, which states that Sequoia continues to try to comply with the certification requirements. "We would like [to] work with your office to do whatever is necessary to remain an approved voting system vendor in the state of North Carolina going forward," Cramer wrote.
McCloy, the e-voting activist, said she became involved in the case because of recent ongoing problems in North Carolina elections. In last year's presidential election, some 4,500 votes were "lost" in one county when e-voting machines malfunctioned, she said. Other counties allegedly registered more votes than voters in their districts, while others lost votes through malfunctioning e-voting machines, she said.
"We had a serious problem," McCloy said. "This was a persistent problem. It just illustrates that, unfortunately, it's not good enough to pass a good law. You have to be vigilant to ensure that the law is enforced. We want to put some integrity into the election process."
McCloy, who has worked in the banking industry in the past, said that the nation's banks would "never put up with such equipment" as has been used in recent elections. "Elections shouldn't put up with it either," she said. "If banks had to deal with this, banks would shut down. Money would be in the mattresses."
Also named as a defendant in the lawsuit is the North Carolina Office of Information Technology Services