Bowen accused Omaha, Neb.-based ES&S of illegally selling 972 uncertified AutoMARK Version 1.1 machines to Marin, Solano, San Francisco, Colusa and Merced counties.
"If ES&S has broken the law and misled counties into buying nearly 1,000 uncertified machines," Bowen said, "I intend to go after the company for the full $9.72 million in penalties allowable under the law, along with the original $5 million the company took from counties' pockets."
Bowen, a Democrat elected in November amid an outcry over the vulnerabilities of e-voting systems, called for a Sept. 20 hearing to investigate the company. ES&S also makes AutoMARK 1.0, an electronic ballot-marking device that is certified and used by disabled voters in 14 counties, including Contra Costa and Los Angeles.
If she finds ES&S made unauthorized changes to its AutoMARK system, Bowen could ask a court or an administrative law judge to impose as much as $10,000 per violation -- for a total of $9.72 million -- require that the company refund nearly $5 million to the state and counties for the $5,000 machines, and prohibit the vendor from doing business in the state for as many as three years.
Bowen was first alerted to the new version when ES&S applied seven weeks ago for certification of the system already in place in the five counties.
If she bans the company from doing business, the counties that use their machines would have to switch to a rival vendor for disability access machines -- either Hart InterCivic, Diebold Election Systems or Sequoia Voting Systems, all of which were allowed to have one touch-screen voting machine at each polling place under Bowen's decertification order. The state would use some of the proceeds of the fines to compensate Contra Costa and other counties for purchasing new machines.
Contra Costa and eight other counties that use ES&S for their standard polling place equipment would be the most hard-pressed to find an entirely new system by February.
A spokesman for ES&S would not directly address Bowen's accusations, but he said the company will work with her.
"We have a long history of complying with those extensive and thorough examinations of voting technology," Ken Fields said.
The allegations are "serious," said Stephen Weir, president of the California Association of Clerks and Elections Officials and the Contra Costa registrar.
"If it's true, it doesn't just hurt vendors and their clients, the counties, but voters of California," Weir said. "And it can't come at a worse time for the confidence of voters."
Bowen's decision earlier this month to decertify all but disability-access touch-screen voting systems has shaken the tight community of county clerks and e-voting vendors, who warned that chaos would reign if counties had to change systems six months before the Feb. 5 primary.
But voting rights advocates hailed Bowen's firm hand, saying her top-to-bottom review confirmed their fears that e-voting security was vulnerable to potential hacking and vote altering.
The charges fit a pattern of behavior by e-voting vendors, said Bev Harris, founder of BlackBoxVoting, a group that monitors e-voting. Diebold Election Systems, for instance, was forced to pay a $2.9 million settlement with Alameda County after equipping its machines with uncertified software.
"The industry as a whole seems to be inflicted," Harris said. "There's a culture of a disregard for the rules. They've been protected for so long by big politicians, including secretaries of states. That's why Bowen is unique and courageous. She's standing up and saying, 'I insist you follow the law.' That is not typically done."
Bowen said that ES&S sold the uncertified machines to the five counties last year, delivering hundreds of them months before the federal government certified them in August 2006. Federally certified systems must also be sanctioned by the secretary of state before they can be used.
Marin County's clerk, Michael Smith, said his contract with ES&S stipulates that equipment must be state and federally certified and that the company "should make good on the delivery of certified equipment."
But he also said that with the February primary approaching, perhaps "she can review it and find it's OK. If the company made a mistake, they need to own up to that. But it doesn't set aside the fact that registrars have a job to do."
Bowen has wide latitude, said Ira Rosenthal, Solano County's registrar, to address the issue without forcing registrars to undergo more jolting change with November elections coming up for some, including Solano and the city of San Francisco.
"Based on testing, we're convinced it reads the ballot correctly and accurately," Rosenthal said. "It's possible she may let it go for November."
Reach Steven Harmon at firstname.lastname@example.org or 916-441-2101.