CHARLESTON – When early voting for the May primary election began Wednesday, many West Virginia counties had to fall back to paper and optical scan ballots.
The vendor chosen to supply new touch screen machines – Elections Systems & Software of Omaha, Neb. – didn't get the machines programmed in time.
That snafu has Kanawha County Commission President Kent Carper worried about potential lawsuits.
"They (ES&S) didn't meet their contract," said Carper, who also is an attorney. "That's a violation of federal law. There is no question that the state of West Virginia is in violation of HAVA (the 2002 Help America Vote Act).
"The state used federal dollars and local dollars. We've had classes. We've run advertisements telling handicapped people they'd be able to use these machines in early voting."
Kanawha is one of 34 counties using ES&S, which has a $17 million contract with the state to provide the machines to those counties.
Carper said he hopes no lawsuits develop from this delay, but he said the situation is ripe.
"I don't know what's going to happen," said Carper, who has sent letters to local and federal officials about ES&S not meeting its deadlines. "What if there are close elections? What if someone says numbers don't add up to records?
"Unnecessarily, all of that has been hoisted on this election."
The state Secretary of State's office says the state and counties "have done their part in preparing for this election."
"The machines were delivered in time," said Ben Beakes, chief of staff for Secretary of State Betty Ireland. "This is a vendor problem. They delayed in getting electronic ballots ready. The machines for the disabled aren't quite ready, but they will have the opportunity to vote on accessible machines.
"West Virginia has done everything in its power to be compliant with the HAVA Act."
In a press release, Ireland said ES&S's problems are a direct result of HAVA.
"Voting machine vendors across the nation are faced with the daunting task of servicing all 50 states at one time," the release said.
"Sometimes this can happen when sweeping federal legislation affects all 50 states," Ireland said in the release. "We understand that ES&S is working hard to meet the demands of all its customers. But we still intend to get what we paid for.
Carper said he thinks state officials could have been quicker in taking action when it was apparent that machines wouldn't be ready in time for early voting, which started Wednesday.
"I could argue that they could've done something quicker," he said. "I think that anytime you have something as serious as an election and people have had their federal rights violated … well, I just hope nothing major happens.
"People voting today (in early voting) had just as much right to use these machines as the people who will be voting May 9."
Carper said the county is weighing its legal options in the matter.
"We're looking to see exactly how it affects the county," he said. "If we're sued by a candidate or if we have to do a canvass because of this, yes, we might file suit. Plus, we paid for equipment we can't use right now.
"These are serious matters. Am I looking to file a lawsuit? Absolutely not.
"But I'm smart enough to know that if there is a narrow-thin race and if someone can show a couple hundred votes weren't counted, that is what lawsuits are made of.
"I also know that when you're in the courthouse, you're real close to where they file lawsuits. So when you mess up, you'd better be weary."
Beakes said the Secretary of State's office isn't considering legal action against ES&S yet.
"We're not even going down that road yet," he said. "We're solely focused on having a clean and smooth election on May 9."
A spokesman for ES&S did not return calls seeking comment.