CHARLESTON - West Virginia Secretary of State Betty Ireland has filed a complaint against the manufacturer of voting machines used during the May 9 primary elections, and is currently on a fact-finding mission before deciding on the possibility of a lawsuit.
Ireland filed a formal complaint with the federal Election Assistance Commission against Election Systems and Software of Nebraska.
The EAC is an agency created by the Help America Vote Act of 2002 that, as Ireland's Chief of Staff Ben Beakes said, acts a national clearing house for procedures and technical guidelines of the act.
Ireland says ES&S didn't provide West Virginia with voting machines in time for county officials to familiarize themselves with them, causing delays in tabulating results on election night.
"I am more than upset that our county clerks and their staffs and the county commissions had to withstand stress and anxiety over the broken promises and delays ES&S put them through," Ireland said in a press release. "The county election officials are to be commended for their valor and hard work above and beyond the call of duty."
Beakes said the office is currently trying to receive a true picture on an individual-county basis of the hardships faced before and on Election Day.
He added that the office is discussing with state Attorney General Darrell McGraw the option of litigation against ES&S.
"We need an accurate account of the issues each county faced," Beakes said. "That, in large part, will decide what needs to be done."
Beakes said he knows of a few states that had elections a week earlier than West Virginia's and reported similar problems, though West Virginia is the only state that has filed a complaint against ES&S.
Ireland's main problem with ES&S was that the machines were not ready in time for election officials to become adequately familiarized with them.
Beakes said Ireland was unfairly given grief for not taking action against ES&S before the primary election.
"We were criticized for not filing a suit before the primary election, but our first obligation is to have a primary election," he said. "There will be plenty of time afterward to have discussions about what happened with that company."
ES&S had a $17-million contract with the state to provide machines to 34 of the state's 55 counties, but when early voting began in April, many counties had to fall back to paper and optical scan ballots because ES&S had not properly programmed the machines yet.
On April 28, Ireland filed a Petition for Injunctive Relief in Kanawha Circuit Court, asking the court to keep Christopher Chiles, Cabell County's Prosecuting Attorney, from prosecuting the clerk of Cabell County, Karen Cole, for not completing the testing of the electronic voting systems before the usual statute says it must be done.
"Failing to allow an extension of time to test the voting equipment and software will directly result in entire counties, where similarly situated, being eliminated from participating in the… primary election," the petition says.
After a troublesome election night, Ireland feels ES&S is to blame.
"ES&S was chosen to provide West Virginia's voting machines partly based on its local connection, its past service in the state, and its knowledge of West Virginia election deadlines and procedures," she said.
"Unfortunately, we now feel ES&S let West Virginia down."