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Judge denies Diebold request to block ES&S pact with Massachusetts

Vendor contends state erred in selecting AutoMark voting machines of rival

By Marc L. Songini
March 27, 2007 12:00 PM ET

A Suffolk Superior Court judge yesterday denied a request from Diebold Election Systems to block a bid by Massachusetts to buy electronic voting machines from Election Systems & Software Inc.

Diebold had filed a lawsuit against the commonwealth of Massachusetts on March 15 looking to invalidate the state's $9 million contract to buy handicapped-accessible AutoMark voting machines made by rival ES&S.

At a court hearing on the lawsuit yesterday, Diebold's request for an injunction to block the execution of the contract with ES&S was rejected, a spokesman for Massachusetts Secretary of State Bill Galvin said today. The judge also denied Diebold's request to have an accelerated discovery process and to keep the state's legal team from viewing internal Diebold documents, he said.

"The suit is still there, but they went zero for three yesterday," the spokesman said. No further hearings have been scheduled yet, he said.

Galvin's spokesman called the lawsuit "frivolous." He said Galvin's office followed a proper procurement process that included field testing of potential machines, including those from Diebold, during actual elections. In announcing the selection of the AutoMark machines on March 5, Galvin stated: "After extensive testing and analysis for security, I have determined that the AutoMark terminal is the one that will best enable voters with disabilities to cast their ballots without the assistance of another person."

Galvin's spokesman said the devices would bring Massachusetts into compliance with the federal Help America Vote Act (HAVA) of 2002, which requires each voting district to use at least one handicapped-accessible machine. The machines will be installed in Boston precincts by November and throughout the state in time for the 2008 presidential election, he said.

In a statement, Diebold Election Systems President Dave Byrd said that the company "has confidence that the state's goal is to purchase the best voting machines for the lowest price possible." He noted that more than 200 voting districts in the state already use Diebold machines.

The company "is confident that it has offered the electorate of Massachusetts, including blind and physically challenged voters, the best election solutions and services at the most competitive price." He said he hoped the court would preserve Diebold's "right to participate in the selection process and ensure the citizens of Massachusetts have access to Diebold's industry-leading products and services."

A preliminary hearing held Monday failed to produce any major result, said a Diebold spokesman.

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