On Election Day, a federal judge said the plaintiff failed to show any ‘actual and imminent harm’ from voting software used in almost a third of Ohio's counties. The concern was of a digital 'back door' that someone might exploit to alter vote totals.
A federal judge on Tuesday refused to grant a temporary injunction to prevent Ohio election officials from using new election software installed recently in county computers to format vote totals and transmit them to the Secretary of State's Office.
In his ruling, US District Judge Gregory Frost said the motion filed Monday in Columbus failed to show any "actual and imminent harm" from the software, which an expert witness for the plaintiff had claimed would created a digital “back door” that someone might exploit to alter vote totals.
The suit alleged that the Secretary of State's Office used a legal loophole to install software on electronic voting systems in county vote-tabulation machines without having it checked by the Ohio Board of Voting Machine Examiners, the state's technical board that is charged with reviewing election software. State officials say that they have followed federal guidelines and that the equipment is secure.
Bob Fitrakis, the Green Party candidate for Congress who filed the suit, has alleged that the Secretary of State's Office eluded the Ohio Board of Voting Machine Examiners by deeming the software "experimental," because last-minute fixes under that moniker do not require certification and testing. Mr. Fitrakis says the contract with the firm that sells the software was leaked to FreePress.org, of which he is editor.
In an affidavit supporting the filing, James March, an expert witness on voting machines, testified that the 28-page contract describes in detail the requirements for the software – showing that a third party could gain access to county vote totals.
During the hearing, computer security expert Michael Duniho of Pima County, Ariz., testified by phone that the installed software, called EXP software, could make county vote-tabulation computers vulnerable to a virus that could change vote counts.
But Judge Frost said Fitrakis's experts did not show sufficient familiarity with the software in question and were merely "speculative."
"Fitrakis has failed to demonstrate actual and imminent harm," Frost wrote in his 10- page decision. "His claim to injunctive relief is based on a series of speculative assumptions about what the EXP software might do to the county vote tabulation computers and how someone might be able to use the EXP software to alter election results. Fitrakis has not provided actual evidence that demonstrates how this harm is a realistic possibility, much less how it is actual and imminent."
Fitrakis has filed a similar motion to halt tabulation using the software with a state court, whose ruling on matters of state law is expected soon.
IN PICTURES: Election Day 2012 – America votes!