Suit alleges machine changed votes

Wednesday, May 19, 2010

BERRYVILLE -- In a lawsuit filed Friday, F. Owen Kendrick, a candidate for Carroll County clerk, alleges that early votes cast for him on an electronic voting machine in the Berryville courthouse were registered as votes for his opponent in the Democratic primary, incumbent County Clerk Jamie Correia. Early voting takes place in the county clerk's office.

The suit cites affidavits from two voters who say they cast votes for Kendrick but the machine registered the votes for Correia. Kendrick told the Citizen that since he filed the lawsuit, another voter has come forward with the same claim. He described the character of those making the claim as "pretty unimpeachable," noting that it is Circuit Court Judge Kent Crow and Nadine Holland, an employee in Crow's office, who swore the affidavits. Kendrick said Crow's wife, Lynn, later related she'd had the same experience.

The suit names as defendants Correia, and Carroll County Election Commissioners Levi Phillips, Joe Goforth and David Hoover.

Kendrick said he first took his complaint to the Election Commission, which told him "after some sputtering and muttering" that they "wouldn't do anything about it." He said commission chair Levi Phillips told him "the machines don't do that" and that "whoever told you that is lying." Kendrick said he responded, "Go tell Kent Crow he's lying."

Kendrick next went to the Secretary of State's office where he was told his only recourse was through the legal system. He filed a civil suit, case # 2010-72 in Carroll County's Circuit Court, over which Crow presides. Since Judge Crow is a major witness, he cannot hear the case, Kendrick noted, so he went, with Crow's blessing, to seek injunctive relief from a judge in Boone County. He wanted the judge to remove the offending machines and place them in the custody of the sheriff. As of press time, no injunction had been issued.

According to the supporting sworn affidavits, Crow voted May 4 and initially thought he may have been careless in touching the correct area of the screen to vote for Kendrick. He corrected the ballot and mentioned the mistake to Holland when he returned to his office. When Holland related that she had the same experience when she voted nine days later, after taking special care to touch the correct place on the screen based on Crow's experience, the two concluded they had voted on the same machine and something was amiss.

On Monday afternoon, Phillips said he hadn't yet been served with the lawsuit, but he felt confident that the voting system in Carroll County is reliable and that voters will be well represented in the election. He explained that no internal programming of the machines is done locally. Before each election, hard drives of the ballot scanner and the electronic voting machines are sent off to Election Systems and Software (ES&S) of Omaha, NE, for programming.

"Some counties bought systems that allow them to internally program the machines," Phillips said. "I'm glad we didn't buy into that." He stated that every machine being used in the election has been tested and "zeroed out."

This is not the first time there have been issues with voting machines in Carroll County. In 2004, a programming glitch in the optical scanning vote tabulator gave votes for one Justice of the Peace candidate to another. The glitch was discovered when one candidate received no votes at all in one district. Though the programming error was thought to be accidental, the incident demonstrated that programming flaws could alter vote tallies.

In his affidavit, Crow stated he believes there is a flaw in the screen technology, since Kendrick's name is at the very bottom of the screen, and that the problem is likely technical rather than intentional malfeasance. Holland, in her affidavit, wonders how many others had the same experience and were not computer savvy enough to make the correction or assertive enough to ask for help.

In the suit, Kendrick asserts his belief that the machines have been tampered with, and petitions the court to remove all electronic voting machines from the clerk's offices in Eureka Springs and Berryville, placing them in the sheriff's custody until they can be verified, and to nullify ballots cast on the machines before the requested court order is served. "Petitioner will suffer irreparable injury in the absence of such relief," the suit concludes.

The primary election was held Tuesday. Kendrick said he would decide after the vote how he would proceed. "Even if I win, there is such an egregious set of facts that something needs to be done," he said. Kendrick, who practiced law in Louisiana before relocating to Carroll County, is representing himself in the case.

A message left for Correia seeking comment was not returned.

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