What is the status of Bev's 'Qui Tam' suit in CA?

[Stephanie]

I haven't heard anything about this for a while. Is it still in process? Anybody know anything?

________________________

http://www.usatoday.com/tech/news/techpolicy/evoting/2004-09-08-quitam-calif_x.htm

Posted 9/8/2004 3:04 AM Updated 9/8/2004 5:22 PM
California joins electronic voting lawsuit
The Associated Press

California Attorney General Bill Lockyer joined a lawsuit Tuesday alleging that voting equipment company Diebold sold the state shoddy hardware and software, exposing elections to hackers and software bugs.

California's Alameda County also joined the false claims case, originally filed by a computer programmer and voting rights advocate. Faulty equipment in the March primary forced at least 6,000 of 316,000 voters in the county east of San Francisco to use backup paper ballots instead of the paperless voting terminals.

The lawsuit is the first e-voting case to rely on an obscure legal provision for whistleblowers who help the government identify fraud. Programmer Jim March and activist Bev Harris, who first filed the case in November, are seeking full reimbursement for Diebold equipment purchased in California.

Alameda County has spent at least $11 million on paperless touchscreen machines. State election officials have spent at least $8 million.

Because the lawsuit relies on an obscure provision called "qui tam," March and Harris could collect up to 30% of a reimbursement. The state could collect triple damages from Diebold, or settle out of court....

________________________

[Qutzupalotl]

1. ...mmm....triple damages...

That would be f'in SWEET.

[Kelvin Mace]

2. The suit was settled on 12/17

for $2.6 million. No real sanction against Diebold and Bev Harris and Jim March walk away with $75K a piece.

Suit was settled "with prejudice" meaning it can never be brought again in the state of California.

This is why the suit was a bad idea and has done damage to the cause rather than help it.

No triple damages, no criminal investigation, no ban. Diebold's stock is now heading back to an all-time high.

David Allen
www.blackboxvoting.com
www.thoughtcrimes.org

[Stephanie]

4. Thanks for the info - is there anything in public record?

Is the court decision available anywhere? Why was it settled - do you know? I thought the idea was to get into discovery and expose as much Diebold info as possible. So you are saying Diebold cannot be sued again in CA? That makes no sense to me. Are there any articles about it? Nothing recent is coming up for me. Bev's site appears to be under reconstruction - no info there.

http://www.blackboxvoting.org/news.html

[ohio_liberal]

6. The suit was dismissed with prejudice

Dismissal with prejudice means that the claim that is dismissed can't be brought again in the same jurisdiction with the same set of facts.

[Garbo 2004]

9. Apparently BBV did not file a motion with the court to contest

the settlement. Although they had over a month to do so. Telling the CA AG that they were going to protest the settlement is not the same as filing a motion in the court. (As Jim March notes here: http://finance.messages.yahoo.com/bbs?.mm=FN&action=m&board=4687614&tid=dbd&sid=4687614&mid=8871 )

Even if they had contested the settlement in court, once the CA AG took over the case on behalf of the people of the state of CA, the qui tam plaintiffs did not have the authority to block the settlement. And they knew that. (March admitted on the now apparently disappeared old BBV forum that it was a "long odds" that they could persuade the court to not approve the settlement.)

But by not even presenting a legal filing with the court to protest the settlement, they lost the opportunity to have their point of view heard by the court.

[Stephanie]

12. So what does that mean? What has been lost?

I have to go take a look at the case, but are you saying they let Diebold get away with it? Will CA have an improved system with a paper trail as a result of this case? Will CA get to examine the software, etc.? Was anything actually accomplished?

[Kelvin Mace]

21. Virtually nothing was accomplished

at the expense of all the evidence we had against Diebold.

David Allen
www.thoughtcrimes.org

[Nederland]

31. Its worse than that

The movement can now be labelled as a group of self serving quacks only in it for the money. Nothing gained, much lost.

[Kelvin Mace]

14. And you won't see anything on Bev's site

as she is trying to figure out how to spin this to her advantage. The consensus here at DU is she is setting up Lowell Finley, her attorney, as the fall guy like she did Andy over the Keith Oberlmann fiasco.

You can find a link on my site to the story:

http://blackboxvoting.com/modules.php?name=News&file=article&sid=334

When a law suit is settled "with prejudice" that means that it can NEVER be filed again (in essence, it is like the "double jeopardy" protection in criminal matters). I have been involved in lawsuits and this is standard practice.

Here is the settlement, which was approved on 12/17:

http://verifiedvoting.org/downloads/Proposed%20Settlement-Final%20(11-10-04).pdf

18. DISMISSAL.
The original qui tam complaint filed by MARCH and HARRIS on November 21, 2003 is ordered dismissed with prejudice. All DOE defendants named in the First Amended Complaint are dismissed with prejudice.

Bev's action in California have pretty much taken the state out of play as a means of stopping Diebold.

This result was one of the MANY reasons Bev swore she would never file a qui tam, and certainly the reason I would have no truck with such actions. Later, she secretly filed the suit (something she falsely accused myself and many other activists of doing). When the lawsuit was announced, she tried to justify her hypocritical action and failed.

Also, if the state joins you in a qui tam (as it did in California), they call the shots. If they say settle, you settle

Bev lied to her supporters claiming she would not settle but would file her own suit. She lost the ability to do this the minute California joined her suit.

Supposedly Bev now wants to file a federal qui tam, which, if successful, could make her even more money, but would result in Diebold getting complete immunity from future assault.

If Bev's files such a suit, I will contest her legal standing as the originator of the documents in question. Unlike her, I have no desire for money and will not permit her to ruin this movement.

David Allen
www.thoughtcrimes.org

[Stephanie]

16. Keep us posted on that please

I thought she said that there were different types of qui tam suits, and that she objected to people filing qui tam if the info revealed would be kept secret, but that the suit she filed would put all the info into public record. Is that what happened, or is the info lost to us?

Also, how do we stop her from filing the federal qui tam - is it possible? If qui tam were a way for Diebold to hide its secrets, you would think they'd be filing against themselves.

[Kelvin Mace]

19. As usual, she had little idea what she was talking about

She filed suit in November of 2003 and the suit was kept secret until the Spring.

The danger of such a suit is not the secrecy (to me any way) but the loss of control when the Gov't joins your suit. Once that happens, you no longer call the shots.

On the Federal side, she can be stopped by being disqualified as having standing. Bev bases her standing on her discovery of the Diebold files and the Diebold email. On the first, she did find the files, but did not understand their significance until I explained them to her. Also, she was NEVER the person who found the emails, they were provided by an anonymous source and I was the one who actually got them and gave them to Bev.

Bev has spent the lat year trying to rewrite history to obscure these details and claim the credit so she could file these suits. I can and WILL challenge her legal standing if she files a Federal suit.

David Allen
www.thoughtcrimes.org

[regularjoe]

24. What was the benefit of getting the State to join?

I don't understand why you would do that if it means they get to call the shots. Also, if they make the decisions, what good would it have done for Bev to contest the settlement? Would the Judge have prevented it?

regularjoe

[Kelvin Mace]

28. Because they

were looking at 15%-30% of what could have been millions in damages. Someone who TRULY cared about the issue would never file such a suit, someone in it for the money however...

David Allen
www.thoughtcrimes.org

[troubleinwinter]

18. Oh My Gawd

I had previously read a couple of internet postings by Jim March, and they were pretty disgusting and crass. I have just read a bunch more on the Yahoo site.

Where did this guy come from?? What are his qualifications? He talks (writes) like an ill-trained juvenile with a bad attitude, trying to be a tough-guy, not a member of the board of directors of a non-profit organization. I wouldn't talk to him for two minutes in a bar.

Egads! Bev is supposed to be a PR professional??!!?!

[Kelvin Mace]

20. Jim March

is a major RW-er and gun nut pretending to be a Libertarian. His stated reason for getting into these things is to make money to fund his pro-gun agenda.

Bets are being taken around my house whether he will turn on Bev first or vice-versa.

David Allen
www.thoughtcrimes.org

[troubleinwinter]

22. Yeah, I have picked up that much along the way....

just wondering WHERE she dug him up and WHY. WHAT qualifies him to sit on a board of directors of a non-profit organization? As if Bev hasn't done enough to damage the organization, his comments and manner are atrocious. PR? Ohmygawd.

[Kelvin Mace]

23. "Birds of a feather...."

[Zan_of_Texas]

25. Jim had several things going for him.

1. He is a resident of California.

2. He is a lobbyist there.

3. He knows a fair amount about computers. He was able to demonstrate a voting machine hack rather simply.

4. And, agreed, I would not talk to Jim in a bar, but that's not what we're doing here. The fact that he comes from a different political angle is a plus in my book. Remember, we keep saying this is a nonpartisan issue. Well, we should act like it and welcome people from all points on the political spectrum who want to have clean, transparent honest elections.

I don't think Bev is a progressive, a Green, and possibly not a Democrat either.

I am not defending March or Harris. But, I would point out that on the CA qui tam, the ultimate result has to do with the AG, the County, and Diebold and their attorneys. If they agreed to the handslap (instead of serious stuff and criminal charges against Diebold), we should aim at least a little of our spit at them.

[troubleinwinter]

26. I am not saying they need to be on a particular political side

I am saying that March appears to comport himself with about as much grace as an unrecalcitrant drunken parolee with a second grade education and a bad attitude. Just reading his own posts.

I was not saying I wouldn't have a drink (or several) with a Republican in a bar, but that he COMES OFF badly, and wondered how he came to be on the Board of Directors of a non-profit organization, when the Director is supposedly knowledgeable in PR.

[Andy_Stephenson]

27. He was active in the issue and Bev

wanted to have at least a semblance of non-partisanship.

[Garbo 2004]

3. The proposed settlement announced in Nov was approved by court Dec 17.

NORTH CANTON, Ohio, Dec. 17 /PRNewswire-FirstCall/ -- A California court today approved the settlement agreement between Diebold, Incorporated, and the State of California and Alameda County in their civil action against the company and Diebold Election Systems, Inc., a wholly owned subsidiary. As previously disclosed, terms of the settlement consist of a total $2.6 million payment to the state, which includes a $100,000 payment to Alameda County. A portion of the settlement also includes $500,000 to help form a voter education and poll worker training program in California coordinated through the University of California Institute of Governmental Studies. Additionally, Diebold has agreed to certain technology and reporting obligations that will provide election officials with a better understanding of the most effective manner of implementing its elections systems. http://biz.yahoo.com/prnews/041217/clf031_1.html?printer=1

[Stephanie]

5. Thanks - do we know what Diebold has agreed to do?

This is totally vague:

Additionally, Diebold has agreed to certain technology and reporting obligations that will provide election officials with a better understanding of the most effective manner of implementing its elections systems.

[Garbo 2004]

7. Read the proposed settlement then. Available in pdf online.

https://verifiedvoting.org/article.php?id=5236 for story. Links at bottom of article to text of lawsuit and the proposed settlement.

[Stephanie]

8. Thank you.

Will take a look.

[Stephanie]

13. Hmm - well that is dated November 10th

I'd be curious to know what the actual settlement was. Here's an excerpt from the link:

In addition to the $2.6 million, the settlement would require Diebold to pay the costs of providing optional paper ballots to voters in Alameda and Plumas counties in the November 2, 2004 general election, if the counties request such reimbursement. Diebold’s obligation under this provision would be limited to the cost of providing paper ballots for up to 25 percent of the registered voters in the two counties.

Under the settlement, Diebold also would: pay for optical scan equipment and ballots used in the November 2, 2004 general election in Kern, San Joaquin and San Diego counties; pay for storage of electronic representations of each ballot cast on touchscreen voting units in the November 2, 2004 general election in Alameda, Plumas and Los Angeles counties; upon Alameda County’s request, pay for tamper-resistant tape used by the county in the November 2, 2004 general election; install, and pay the cost of installing, upgraded touchscreen firmware in Alameda, Plumas and Los Angeles counties, and upgraded vote tabulation software in all counties using Diebold voting systems in the November 2, 2004 general election; upon Alameda County’s request, pay for 750 expanded memory cards for the county’s touchscreen voting units.

Additionally, the settlement includes important provisions that would require Diebold to strengthen the security of its touchscreen voting machines and vote tabulation servers. During the course of negotiating the proposed settlement, Diebold took steps to implement some of these “injunctive relief” requirements.

One provision would require Diebold to replace hard-coded, “supervisor” passwords with dynamic passwords, and provide directions and training to enable election officials to change the dynamic passwords. Diebold also would have to encipher data transmissions between touchscreen terminals and vote tabulation servers, and replace hard-coded data encryption, standard security keys with encryption keys programmable by counties.

Additionally, the settlement would require Diebold, upon request of the counties using its voting equipment, to reconfigure the vote-tabulation server to better secure the systems in those counties. In the alternative, Diebold could instruct the counties on how to complete such a reconfiguration. Under the settlement, Diebold would be prohibited from connecting voting systems to specified networks, transmitting official election results through use of such networks, or downloading software or firmware through use of specified networks. The settlement also would require Diebold to offer training materials to the counties on how to use its voting systems.

Further, Diebold would have to provide the California Secretary of State, upon demand, documents from independent federal testing authorities, and information related to the development, testing, installation and operation of its voting systems. The information would allow the Secretary of State to further analyze the Diebold systems used in California elections.

[Kelvin Mace]

15. That was the actual settlement

It was proposed in November and approved Dec 17th.

To the great ANGER of many people here at DU.

David Allen
www.thoughtcrimes.org

[Stephanie]

17. I see, thanks

I was traveling that week and missed the story.

[WillYourVoteBCounted]

11. Most effective manner of implementing Diebold systems

:nuke:

[WillYourVoteBCounted]

10. Qui Tam settled, Andy sent packing

Dont forget that she got rid of Andy right before the settlement, or thereabouts.

The timing is interesting.
All that work, and then WHAM, Andy is sent packing.

[joevoter]

29. What would have been a better way

to pursue the case with the evidence that they had? Please forgive my ignorance. I am fairly new to legal strategy.

[Kelvin Mace]

30. The best way to have pursued the issue

would have been an investigation launched by the California legislature, complete with subpoena power. There were a number of state senators very upset with Diebold so that would not have been hard to arrange.

Such an action would placed Diebold on the defensive and probably forced some of the programmers and execs to plead the fifth.

Such an action would have cracked open Diebold for many other states to launch similar investigations.

What we wanted was TRUTH, not money.

Imagine the spectacle of putting Diebold programmers and sales reps before a committee UNDER OATH.

Now, it won't happen.

Not unless we come up with something new in a different state.

David Allen
www.thoughtcrimes.org

[Stephanie]

32. The court case precludes the legislature from investigating?

Really? Diebold just won immunity for life in CA? That can't be right.

[Kelvin Mace]

34. No, but the issue

is now seen as "settled". The legislature could do this, but won't as the matter has been dealt with.

David Allen
www.thoughtcrimes.org

[troubleinwinter]

33. Could the federal Judiciary Committee do this rather than a state?

[Kelvin Mace]

35. Yes, but that is going to be a hard sell

It could happen if the GAO investigation turns up lots of problems. But remember that the GOP controls the committee and is not interested in questioning election results.

This would change if we could somehow talk George Soros into buying Sequoia. <g>

David Allen
www.thoughtcrimes.org

[troubleinwinter]

36. How would that change it?

[Kelvin Mace]

37. Up to this point

the GOP has dismissed concerns as partisan in nature. We're upset because of GOP ties to the voting machine companies which for some reason they feel is "silly".

If a prominent liberal bought into a voting machine company, the Neo-con echo chamber would swing into high gear denouncing "paperless" voting.

David Allen
www.thoughtcrimes.org

[troubleinwinter]

38. A new 'acquaintance' of Andy's

is supposedly starting a voting machine company. I will be enthused to hear what comes of it.

[Kelvin Mace]

41. So am I,

but Bev is still causing Andy lots of grief.

David Allen
www.thoughtcrimes.org

[ohio_liberal]

43. Because of the earlier suggestions of improper behavior

or because she's continuing to badmouth him?

[Kelvin Mace]

45. Bev is never happy just to get rid of someone,

she seeks to destroy them. At the moment I can't say more unless Andy allows me to.

David Allen
www.thoughtcrimes.org

[ohio_liberal]

46. I kind of guessed that

I feel so bad for him. :(

[WillYourVoteBCounted]

47. How about Diebold Techs in Gaston County NC

Is there an opening anywhere in that county?

We already have the memo from 2000 I think.
About doing the end-run around the data base.

Then we have Sandra Page, Director of Elections admitting that Diebold Techs uploaded the precinct totals unsupervised, and she didn't watch or supervise (cause she didn't know she was supposed to count the votes). Page was fired.

Another Gaston County election official resigned too.

The NC BOE managed to get Diebold or someone to say that Diebold techs were supervised, contradicting actual quotes in the paper.

What info should I ask for. How to get it?

[Kelvin Mace]

48. That I can tell you is

being looked into, as I have also raised that question. I am waiting to read the official report from the BoE on Gaston. The matter is not closed.

I am not at all happy with the explanation about Gaston so far, especially since I personally warned Sandra Page about Diebold last year.

David Allen
www.thoughtcrimes.org

[kitkat65]

39. Do people in Ohio have a legitimate case to sue Diebold and the lot

based on what happened during the election and the "alleged" tampering before the recount?

Am I right in thinking it would have to be a civil case without the partnership of the Ohio government in order to avoid what happened with the CA case?

And, aren't civil cases somewhat easier to prove compared to criminal cases?

Have any lawyers looked at this as a possible angle and decided it can't be done?

[Kelvin Mace]

44. You can sue for almost any reason

but if your case is shaky, it will get thrown out. Very few DRE's are used in Ohio and the main focus is on the Triad machines.

Civil cases are easier to prove, but unlikely to overturn an election. As to what lawyers are looking into the matter, last I looked, dozens.

David Allen
www.thoughtcrimes.org

[IStriker]

40. Another DUMB question...

what is "Qui Tam?" I have never heard of Harris until after the election and have no idea what this is. Sorry for being uninformed, but if someone can give me a brief, I would appreciate it.

[ohio_liberal]

42. It's Latin

The full term is Qui tam pro domino rege quam pro se ipso in hoc parte sequitur, and means "who sues on behalf of the king as well as himself in this matter"

Edited to add full phrase.