A ruling is expected shortly on a motion for a temporary restraining order filed by Ohio Green Party co-chair Bob Fitrakis seeking the removal of software that was installed on central vote tabulation machines in over two dozen Ohio counties.
Fitrakis contends in the complaint that state and federal laws were broken because the software wasn't tested and certified before being installed on the vote tabulation systems.
The lawsuit, filed Monday in U.S. District Court for the Southern District of Ohio, calls on the court to order Ohio Secretary of State Jon Husted to remove the allegedly infringing software from the vote tabulation machines.
The state contends that the software cited in the suit is simply vote tabulation communication software that doesn't directly communicate with voting or ballot counting activities. The state maintains that the software is "experimental" and therefore not subject to the state and federal testing and certification requirements.
Ohio is a key swing state in the U.S. presidential election and experts have said the results could well determine the winner. The latest polls mostly show President Barack Obama with a narrow lead in the state over GOP challenger Mitt Romney.
Fitrakis told Computerworld today that his side argued at a hearing this morning that untested software of the sort installed on the vote tabulation machine presents a significant security risk.
Fitrakis claims that the software in question is available for free download on the Internet. There is no reason why the state should have installed the software on so many systems, he contends.
Fitrakis said that because voting is well underway at this point, he has asked the court to approve an "absolutely random" hand count of at least 5% of the votes cast in each of the counties in which the software was used.
Husted's office did not respond to a request for comment on the lawsuit and the software in question.
In the hearing today, the state argued that "there is no constitutional right involved" because the software doesn't interfere with anyone's right to vote.
Jaikumar Vijayan covers data security and privacy issues, financial services security and e-voting for Computerworld. Follow Jaikumar on Twitter at @jaivijayan, or subscribe to Jaikumar's RSS feed . His e-mail address is firstname.lastname@example.org.