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California: San Francisco City Attorney Charges ES&S With Breach Of Contract PDF  | Print |  Email
By San Francisco City Attorney Dennis Herrera Press Release   
November 07, 2007
Blaming Embattled Voting Systems Vendor for 'Undue Hardship and Unnecessary Costs' in Election, Notice of Default Could Result in Litigation Within Two Weeks

Joined by Board of Supervisors President Aaron Peskin and Department of Elections Director John Arntz at a City Hall press conference today, City Attorney Dennis Herrera (pictured at right) issued a notice of default to the City's voting systems vendor, charging Omaha, Neb.-based Election Systems & Software, Inc. with material breach of contract, and initiating a process that could result in civil
litigation within two weeks. Herrera's six-page notice to ES&S President and CEO Aldo Tesi details numerous misrepresentations and breaches of contract by the vendor that have caused San Francisco "undue hardship and unnecessary costs in administering the November 6,
2007 election."

"We are putting ES&S on notice that we expect the company to meet its obligations and to pay all costs associated with its past failures to do so-or I am prepared to aggressively litigate the City's rights under its contract," Herrera. "The notice of default we are sending today details a history of misrepresentations and breaches that have imposed unprecedented difficulties on this City in conducting its election."

With the outcome of numerous ballot measures likely to remain uncertain for weeks, Department of Elections employees must count ballot cards for 24 hours a day for at least a week after election day, so that results can be reported within time limits required by state law.

ES&S's breach of contract in failing to meet state certification requirements caused California Secretary of State Debra Bowen to impose conditions on San Francisco's use of the company's voting machines, requiring centralized tallying of all ballots at City Hall.

Herrera's letter demands that the company cure its contractual breaches by November 19, 2007, including complying with state elections requirements and payment for associated costs. It also demands the company's agreement to compensate the City for all costs associated with borrowed equipment and permanent replacement of uncertified machines for use in future elections, while reserving the City's right to seek compensation for additional costs, including
monetary damages.

Describing itself on its Web site as "the world's largest and most experienced provider of total election management solutions with more than 170,000 systems installed worldwide," ES&S has come under fire for its business practices from watchdog organizations and elections
administrators. Last month, Colorado suspended its certification process of ES&S's voting system, citing problems similar to those that have plagued the vendor in California. Colorado Secretary of State Mike Coffman's Oct. 24, 2007 letter to the company cited "a history of
coordination issues with your company."

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