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Voting device firm could face contempt charges

Posted: Thursday, Aug 11th, 2011

SAGUACHE - District Judge Martin Gonzales ruled Wednesday that Elections System and Software (ES&S), who failed to appear for their depositions in the Marilyn Marks v. Melinda Myers Colorado Open Records Act suit could be held in contempt of court.

Denver attorney Robert McGuire, on behalf of his client, Aspen election integrity advocate Marilyn Marks filed the suit to force Saguache County Clerk Melinda Myers to turn over voting records and related documents Marks requested beginning last November. ES&S provided Saguache County with their M650 voting device and accompanying software used in the contested Nov. 2, 2010 election.

Gonzales ordered that the election firm appear in court to show cause why they should not be held in contempt for failing to appear for the scheduled depositions in June after he approved the issuance of a subpoena for the depositions.

Marks later filed a motion with the court to hold ES&S in contempt unless they could show sufficient cause for refusing to honor the deposition subpoena. ES&S made no motion to file a protective order, protesting appearance on the grounds that the deposition would violate trade secrets and/or force the production of proprietary information. Nor did their attorneys move to quash the subpoena, court records show.

Instead the company requested that the court excuse them from the depositions, claiming that they are an international agent and as such are exempt from the court's jurisdiction to depose.

This despite the fact that some 3,000 of the firm's machines are in use throughout the state, according to the most recent voting systems inventory published by the SOS.

ES&S history in Colorado

In the ruling, Gonzales cites several examples of ES&S activity in Colorado including the following:

ES&S maintains a registered agent in Denver and the subpoena was duly served on this agent within the required distance from the proposed location of the depositions.

The Secretary of State's Office has certified ES&S voting equipment since at least 2002.

ES&S unsuccessfully attempted to become the sole voting device vendor for the state in 2006. (ES&S is currently renewing its efforts to become Colorado's sole voting device vendor, as discussed by SOS officials and others recently during a Best Practices and Visioning Committee meeting).

ES&S has both sold and leased numerous voting devices to Colorado counties and also has provided support and training to county officials and others involved in the voting process.

This includes the sale of the M650 to Saguache County, plus "$14,605 for installation, training and maintenance services, most of which necessarily require performance by ES&S on-site in Saguache."

ES&S trained Clerk Myers, clerk's office staffer Christian Samora, four election judges and two canvass board members in the use of the M650 Oct. 12, 2009.

ES&S supplied telephone support to the Saguache County Clerk's Office on Nov. 2 and Nov. 8, 2010 concerning the M650 and ES&S technician Tim King was sent by the company to troubleshoot the M650 Nov. 15.

On March 19, ES&S issued a detailed report to the SOS on the assistance the firm provided Saguache officials in the course of the 2010 election process.

Gonzales cited numerous examples from civil procedure rules, state statutes and case law explaining why the arguments that ES&S lies outside the court's jurisdiction are not valid.

ES&S is within the court's jurisdiction

In the Conclusions of Law section of his ruling, Gonzales wrote: "A subpoena from this Court can lawfully be served anywhere inside Colorado. See C.R.C.P. 45(e): ("A subpoena requiring the attendance of a witness at a deposition, hearing or trial may be served any place within the state.").

"As a foreign entity authorized to transact business or conduct activities in Colorado, ES&S is required by law to continuously maintain in this state a registered agent. See 7-90-701(1), C.R.S. This was in fact done by ES&S. Generally, personal service of a subpoena inside Colorado on the agent of a foreign is lawful service on the foreign corporation.

"The establishment of general jurisdiction as a result of "continuous and systematic business presence" suffices by default to make the exercise of personal jurisdiction reasonable. Based on ES&S's contacts with the State of Colorado, due process would readily permit ES&S to be subjected to both the general and specific jurisdiction of this Court in the role of defendant.

"In conclusion, Marks' subpoena was a lawful subpoena and was validly served on ES&S by personal delivery of the same to ES&S's registered agent within Colorado ...and because this Court's exercise of jurisdiction over ES&S as a witness will not offend due process, it is therefore enforceable."


"...The Clerk of this Court shall issue a Citation to Show Cause to Election Systems and Software, Inc. to appear for a hearing at a date and time certain, to be determined by a setting hearing with the court, to show cause why ES&S should not be held in contempt for its disobedience to Marks's subpoena.

"It is further ordered that, once the Citation to Show Cause has issued, the Plaintiff shall serve the Citation to Show Cause; a copy of the Motion and Affidavit for Ex Parte Order to Issue Contempt Citation; and a copy of this Order upon Election Systems & Software, Inc., pursuant to C.R.C.P. 107(c), no later than Thirty days before the date and time designated in such citation for Election Systems & Software, Inc., to appear and make its showing of cause."

Marks and McGuire comment

"This was the right ruling, in our view," McGuire said. "It would have been pretty shocking if this out-of-state corporation had succeeded in avoiding its duty to give testimony in a Colorado court about business it had done in Colorado.

"Part and parcel of doing business in this State is being accountable to Colorado courts," he continued. "Today's ruling was a victory for the people of Colorado and for the civil justice system."

Marks added, "This was an important decision for Colorado voters on a number of fronts. First, the message is clear that a big corporation benefiting from significant sales in Colorado cannot successfully attempt to avoid testifying about their product or services by disobeying a Colorado subpoena.

"Secondly, our election systems must be accurate, verifiable and transparent. If, as in the case of Saguache County, there are questions about the records or the proper operation of the vote tabulation equipment, it is important that the public be able to demand responsible answers from the equipment and software supplier."

One of the key areas McGuire and Marks wish to question ES&S officials about in the depositions is the "strange chronology and inconsistency of the time stamps, also the mismatched entries and exits in the ES&S audit logs" sent to the SOS," Marks said

The impact of these discrepancies has statewide and national implications, she noted, emphasizing that it is crucial to the protection of voters and future elections that the discrepancies in the ES&S audit logs are examined and resolved.

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