Okay, it�s not a tale of that vaunted "vast right-wing conspiracy," but suddenly the case against Diebold�s electronic-voting machines is gaining momentum. On Thursday, an advisory panel for the secretary of state recommended ditching the machines for the November presidential elections.

That event was widely reported, including in Friday�s Los Angeles Times.

What wasn�t reported locally is Exhibit A, internal documents from lawyers for Texas-based Diebold Election Systems, Inc. In these documents, the attorneys concede that the company used uncertified voting machines during elections before January 28, 2004. The memos also state that such actions would violate both California election law and, by extension, Diebold�s $12.7 million contract with Alameda County. The memos don�t specify a particular election that was mishandled.

These Diebold memos (see links below) were unearthed by the Oakland Tribune and became the basis for a Tuesday story by reporter Ian Hoffman. "Yet despite warnings from the state�s chief elections officer," wrote Hoffman, "Diebold continued fielding poorly tested, faulty software and hardware in at least two of California�s largest urban counties during the Super Tuesday primary, when e-voting temporarily broke down and voters were turned away at the polls."

The source of the memos, the law firm Jones Day, went to court this week demanding a return of the documents. Jones Day also sought to prevent the newspaper from publishing additional articles based on the documents, raising the same First Amendment issues addressed most famously in the Pentagon Papers case. A Los Angeles Superior Court judge ordered the newspaper to return some of them, but the matter is in limbo pending ongoing court motions.

Diebold used uncertified software in the March 2 election, according to the state. Moreover the Diebold internal memos had previously warned the company precisely of this problem before the election. These memos also talk of greater legal culpability if the company knowingly violated California election law. The memos don�t speak to the issue of whether the company knowingly violated election law in 2003. But the documents offer a potentially damning indictment of a company that failed to fly right despite in-house warnings.

A company spokesman did not return calls from the Weekly on Friday, but he did address company mistakes in comments published in Friday�s L.A. Times. "We made changes to some base software to meet local and state need," said spokesman David Bear. "We acknowledge we were at fault for not providing proper notification of those changes . . . It was a regrettable error and we apologize for that error." Bear also pledged that the company would fully cooperate with state and local officials. The company Web site is studded with testimonials from officials across the country.

Of course, if the mistake had just been a matter of paperwork that would be one thing, but the state panel reviewed problems that included miscounted ballots, delayed polling-place openings and the issuing of incorrect ballots to voters. The state panel has referred the matter to the state attorney general for possible prosecution.

The Tribune got an immediate response to its article from Diebold�s camp. Jones Day, which has been representing Diebold, went to court in Los Angeles Tuesday demanding the surrender of the internal memos. The "defendants have wrongfully obtained the protected documents with knowledge that they were private and confidential," said the Jones Day court filing. "Defendants have unlawfully disclosed and threatened to further disclose part or all of the protected documents, and refused to return them."

The firm�s attorneys also asked a judge to prohibit the paper from using or referring to the documents in the paper�s coverage. Diebold itself was not directly involved in the legal action. Instead, Jones Day pursued the case as an improper use of its own legally confidential papers.

Los Angeles Superior Court Judge Dzintra Janavs sided with Jones Day regarding any materials stamped "attorney-client privilege" or "attorney work product," but with a notable exclusion. The judge applied the order only to documents that the newspaper had not made public. The newspaper, wisely, had already posted four key documents on its Web site with the article, thus placing them out of reach of the judge�s order.

On the second request � a ban on the use of information contained in the memos � the judge never ruled. "They argued that point for about half the hearing and then they dropped it," said attorney Jean-Paul Jassy, who is representing reporter Hoffman and MediaNews Group Inc. which owns the Tribune. "Then they focused on the return of the documents."

In the three-hour hearing, which lasted into Tuesday evening, Jassy argued alone against a phalanx of six Jones Day attorneys. "I said they were asking for a prior restraint on speech and that was unconstitutional under the First Amendment and under the California constitution.

"Our position is that nothing the reporter or newspaper has done is illegal � nothing," said Jassy. "This case involves a constitutional right of the highest order, which is the right of the media to gather and disseminate news about a matter of profound public interest."

Secretary of State Kevin Shelley has until April 30 to decide whether to ban Diebold machines from the November election. The outcome could affect millions of dollars in future business for Diebold. The company also faces multimillion-dollar liabilities. The internal memos plainly confront this possibility. As one memo put it, "Issue: Whether the use of an uncertified voting system is illegal? Short answer: Yes."

The same memo then dealt with whether the company had violated its contract with Alameda County. "Issue: Whether Diebold breached the Agreement if it provided Alameda County with an uncertified voting system? Short answer: Mostly likely . . . If Diebold materially breached the Agreement, Alameda County can terminate the Agreement and sue for damages."

A later memo concludes that the company probably crossed the line. "During the conference call with Karen Gantt on January 28, 2004, it was disclosed that [Diebold] modified a California State certified voting system as an experiment to remedy various technical problems with the system . . . [It] failed to obtain California State certification . . . Issue: Whether a California State approved voting system may be modified for experimental use without the Secretary of State�s approval? Short answer: Probably not."

Diebold has long been at the center of a national controversy over electronic-voting machines. Part of the furor ensued after the chief executive of Diebold�s parent company invited 100 wealthy friends to a Republican Party fund-raiser. "I am committed to helping Ohio deliver its electoral votes to the president next year," wrote O�Dell in the letter. O�Dell belongs to Bush�s "Rangers and Pioneers," who have raised at least $100,000 each for Bush�s re-election campaign.

The letter fueled conspiracy theories that the machines could and would be used to throw elections. The more immediate concern is simply that the technology is not as foolproof as exponents claim. Many of these machines do not create an audit trail. So if the machines malfunction � say, by giving votes to the wrong candidate � it may be difficult or even impossible to recognize the error. The whole uproar is especially ironic given that electronic voting was championed as the way to prevent a repeat of the 2000 Florida fiasco.

In California, banning Diebold would create havoc and expense. The elections panel will hold another hearing next week. It could recommend barring other electronic voting machines as well. As for Diebold, Secretary of State Shelley could find it difficult to endorse either the company�s machines or its performance. In Los Angeles County, 110 Diebold touch-screen machines have been used for early voting. These models are not the ones that the state panel wants to decertify, said Kathy Tacawy of the county Registrar/Recorder�s Office. But even the older machines could fail to get Shelley�s approval, she added, and her office does not yet know whether it can use the machines in November.

"We don�t know the outcome yet," Tacawy said. "Everyone�s in limbo. We don�t know anything."

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