- The Washington Times - Tuesday, September 22, 2009

The pending merger of two of the nation’s largest voting machine companies has triggered alarm bells, legal action and a federal inquiry over concerns that the deal could adversely effect how the country votes.

Election Systems & Software Inc. (ES&S) of Omaha, Neb., — the country’s largest voting-machine manufacturer — this month announced plans to purchase Premier Election Solutions Inc, the voting machine division of Diebold Inc. of Ohio, giving one company an almost 70 percent share of the nation’s voting machine market.

Critics of the deal worry that it could harm the integrity of U.S. elections by giving one company too much control over the nation’s voting system, thus increasing the chances of fraud.

Sen. Charles E. Schumer last week asked the Justice Department’s antitrust division to review the deal, saying that he was “deeply concerned that local governments and taxpayers will not be getting a fair deal because too much market power will be held in too few hands.”

“It is in the public interest to maintain a range of choices in voting systems,” wrote the New York Democrat in a letter to Attorney General Eric H. Holder Jr. “We need to ensure that local governments can choose among a range of options for voting systems, that prices and services offered by these companies are competitive and fair, and that voters are assured that elections are secure and their tax dollars are being used wisely.”

Mr. Schumer pointed to a 2003 Congressional Research Service report that indicated “having a diversity of voting systems in our country may decrease the likelihood of widespread election fraud.”

Austin, Texas, voting machine company Hart InterCivic Inc. has filed a lawsuit to halt the merger of its two biggest rivals, saying that the deal violates antitrust laws by creating an unlawful monopoly that could undermine the integrity of U.S. elections.

Hart’s lawsuit, filed this month in U.S. District Court for Delaware, contends that a lack of competition created by the sale would “harm the voters of the United States, in the form of loss of confidence in the integrity and security of the means by which elections are performed.”

“Unless restrained and unwound, this merger would give this newly formed vote counting company excessive market power over something as vital to the American people as the right to vote,” said antitrust lawyer Jonathan Rubin of the Washington firm Patton Boggs, which is representing Hart.

Hart says there is a “special danger” of a monopoly in the vote-counting business because one company could acquire an interest in the outcome of an election.

“The benefits of the free market will disappear if the industry is allowed to be dominated by a single firm whose voting machines are in almost 70 percent of U.S. voting precincts,” Mr. Rubin said.

ES&S officials did not respond to e-mail and telephone inquiries in time for this article asking for comment.

Diebold has faced repeated criticism of the reliability and security of its touch-screen voting machines and began looking for a buyer for Premier more than two years ago. The company in 2006 delivered several Florida countries touch-screen voting machines that weren’t certified because they were upgraded without approval from state officials, state officials said.

California in 2004 ordered that 15,000 of its Diebold voting machines not be used in that year’s elections due to flaws that the company failed to disclose.

Former Diebold Chief Executive Walden O’Dell in 2003 also raised serious conflict of interest concerns when he announced that he had been a fundraiser for former President George W. Bush and had sent a get-out-the-funds letter to Ohio Republicans. Mr. Bush narrowly won the state in 2004 amid allegations of voter fraud.

In 2007, Diebold distanced itself from the election unit, renaming it Premier and giving it a separate board of directors.

ES&S and Hart also has received criticism during recent elections. Indiana launched an inquiry into poor customer service by the ES&S after the November 2006, settling when the company agreed to pay $750,000. West Virginia and Arkansas also investigated claims of poor service by the company in 2006.

Voting systems from all three companies used during the 2006 Ohio elections were accused of having critical flaws, according to a report commissioned by the Ohio Secretary of State Jennifer Brunner.

• Sean Lengell can be reached at slengell@washingtontimes.com.

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