Can't they plead the Fifth Amendment?


Key witnesses have notified the California Senate Elections Committee that they will refuse to show up at the hearing on how certification is being done. They don’t want to be questioned.

Shawn Southworth (Ciber) has notified the investigating committee that he will decline to appear. Jim Dearman (Wyle Labs) has notified the committee that he will decline to appear.

No word yet from California voting machine examiner Steve Freeman or California technical advisor David Jefferson, who have accepted at least $150,000 and $50,000, respectively, in Calif. taxpayer money for their roles in testing and certification and recommendation.

The hearing, scheduled for Feb. 16, was called by Calif. Senate Elections Committee chairperson Debra Bowen. Thus far, no subpoenas have been issued. The process for issuing a subpoena takes place in the Senate Rules Committee, which Bowen is also a member of. Without subpoenas, it now seems likely that not a single key witness will show up for questioning.

They won’t show up without a fight, and here’s why:


It is clear by now that the prospect of having to answer how systems like the defective Diebold GEMS central tabulator were recommended for certification is simply a no-win situation for most of the voting machine examiners.

The Diebold system has been recommended for certification over and over, and according to time sheets obtained for the examiners, many hours have been invested in examining its security. Yet two different hacks in projects conducted by, one by Dr. Herbert Thompson and a different one by Harri Hursti, quickly penetrated the system, altering election results.

It took Hursti only 24 hours to spot the fatal flaw in Diebold’s memory card architecture. Both federal and state certifiers should be asked why they recommended this system for certification. Did they not notice the problem, or did they ignore the problem, or did they think it was not a problem?

It took Dr. Thompson less than five minutes to identify the fatal flaw in the GEMS tabulator. Both federal and state certifiers should be asked why they have repeatedly approved GEMS for certification. Did they not understand that a Visual Basic Script can be used to hack a Microsoft Access application? Did they not know GEMS uses Microsoft Access? Do they believe that using a voting program that is hackable with a simple script is secure?

The Steve Freeman time sheets reveal that he specifically billed the state of California for testing in response to the RABA Technologies report and the CompuWare report. His time sheets show an additional five-hour examination of GEMS security. The August 18, 2004 CompuWare report rates the GEMS risk High, High, High and the RABA report says that GEMS should be rewritten entirely.

Freeman needs to be asked, under oath, why he repeatedly recommended GEMS for certification even after numerous reports detailed its security flaws. As recently as November 2005, Freeman recommended GEMS for certification again, this time admitting that there were defects but saying they were planning to find a way to mitigate them. (However, California has not yet mitigated the defects, but will continue to use GEMS.)

Both federal and state certifiers should also be asked why they approved interpreted code in Diebold machines, contrary to FEC standards. Do they think there is no interpreted code? If so, why is there a program called the “interpreter”? Do they think it is okay to have an interpreter running code in a voting system during an election?

According to documents obtained from the state of California by Black Box Voting, Diebold actually stripped out security measures on its absentee ballot counting machines, removing the only safeguard against GEMS hacking available, short of counting all of the ballots by hand. Both federal and state examiners need to be asked why they approved this. Nearly 40 percent of California votes are mail-in. Given the known risks with GEMS, was it appropriate to remove the voting machine results tapes, leaving mail-in vote security solely up to GEMS? Did the examiners not know this? Did they not consider it to be a problem? (See also: Mail-in ballot risk )


Here are some of the time logs and payment records for the voting examiners who examined security on GEMS and the optical scan machine, but recommended for certification anyway, saying nothing publicly about the defects:

These important documents and many more were obtained by a California citizen, Joan Quinn, as part of an effort to safeguard the 2006 Election by shedding sunlight on the certification and testing process. If you think the documents obtained by Joan Quinn are important, and you’d like to get involved in gathering evidence to protect Election 2006, please write privately to crew (at) – include your location and we’ll send you individualized instructions to obtain strategic documents.


While voting machine examiners like Southworth, who examined the GEMS software, and Jim Dearman, who has run the Wyle testing that examined the Diebold optical scan firmware, will be hard-pressed to explain themselves to the California Senate Elections Committee, the other examiners — Steve Freeman and David Jefferson — might be able to explain their silence by pointing to nondisclosure agreements.

Black Box Voting has received reports that the nondisclosure agreements (NDAs) signed by state voting system examiners prohibit them from telling what they know.

These NDAs are apparently being executed directly between the state voting system examiner and vendors like Diebold. A response from the Calif. Secretary of State to a BBV records request states that the secretary of state does not have a copy of the NDAs between voting system examiners (paid by the Sec. State’s office) and the voting system vendors.

But there’s another problem: Nondisclosure agreements do not explain why California examiners recommended GEMS and the interpreter and the Diebold memory card design for certification. Even if they withheld what they knew from the public (a questionable practice, when being paid by public funds), they didn’t have to recommend certification.


To add to the murkiness, the contractor the secretary of state’s office paid for some of Jefferson’s work, R & G Associates LLC, has now vacated its offices, disconnected its phones, and shut down its Web site. The documents obtained by Joan Quinn show invoices to the state of California from R & G for over $1 million. When Black Box Voting investigator Jim March showed up at the R&G office on their most recent corporate filing, they’d vacated the premises. Yet R&G work agreements obtained by Joan Quinn seem to indicate they were contracted with the state of California through 2006.

Next questions: Did R & G have any documents, contracts, invoices, reports, computer files, or anything else related to work done by the voting machine examiners? If so, where are those documents now?


Documents related to certification, requested by Bowen’s office of Secretary of State Bruce McPherson. As of Friday, she reportedly had not received any response McPherson, and the delay in production of these records violates the time limits in California public records law.


– Shawn Southworth (Ciber)
– Jim Dearman (Wyle)
– Steve Freeman

(California voting system examiner)
– David Jefferson (California voting system technical advisor)
– Talbot Iredale (Diebold Election Systems chief engineer)
– Ken Clark (Diebold Election Systems GEMS designer)
– Guy Lancaster (Co-Designer of the Diebold optical scan system)
– Jeffrey Dean (worked on the GEMS system and the mail-in voting systems which
interface with GEMS)
– Tom Wilkie (NASED voting systems certification, has moved up to EAC)
– R. Doug Lewis (The Election Center, involved with selecting the ITAs, ran
interference for the ITAs for 10 years)


Bev Harris
Founder – Black Box Voting

Leave a Reply

Your email address will not be published. Required fields are marked *