Rattled by her recent decision to decertify electronic voting machines used in 39 counties, some California county election officials have discussed suing Secretary of State Debra Bowen.
But so far, no one has found grounds on which to base a complaint, said Paul McIntosh, executive director of the California State Association of Counties (CSAC).
"The secretary of state appears to have the legal authority to make the decisions that she's made," said McIntosh, who has criticized the decertification.
Following a two-month review by experts at the University of California, Bowen decertified direct recording electronic (DRE) systems made by Diebold Election Systems and Sequoia Voting Systems, citing security flaws.
She then recertified the systems, but only for limited use, to conduct early voting and provide one terminal per precinct for voters with disabilities. Even then, counties may use the machines only if they comply with new security and auditing procedures.
Bowen also decertified machines made by Hart InterCivic and set new conditions for their use, but she did not limit the number of terminals a county may use.
Bowen's authority to take these steps lies in California Elections Code 19222, said Nicole Winger, deputy secretary of state, communications. "California law clearly states the Secretary of State shall periodically review voting systems to determine if they are 'defective, obsolete, or otherwise unacceptable,' and the Secretary may withdraw previous approval of all or part of a voting system if it is proven unacceptable after such a review," she said.
Counties might be able to sue on procedural grounds, contending that Bowen did not follow proper procedures when she barred use of the machines, McIntosh said. "But that wouldn't change the decision. It may delay the effect of the decision."
As things stand now, counties that currently use the decertified machines will have to buy optical scanning equipment or find some other way to conduct an election in time for California's presidential primary on Feb. 5.
That would be a costly imperative. Officials in Santa Clara County, for example, estimate it will cost about $500,000 to comply with the order in time for the primary, according to the San Jose Mercury News.
Some also have suggested that the decertification amounts to an unfunded mandate, which is illegal in California, McIntosh said.
"But the prevailing thought is that counties did not have to go 100 percent electronic voting," he said. "They made that decision on their own volition."
The result is that requiring counties to find a different way to count votes is not a mandate.