The centuries old legal principal, Fraus omnia vitiate, “Fraud vitiates everything” renders the following NASED qualification numbers
null and void. Thus, for Wisconsin and 37 other states1, these Diebold systems identified by the qualification numbers above are not certified for use in the state because the required2, legally valid NASED qualification number may not exist. In particular, the certifications for systems N-1-06-22-22-001 and N-1-06-22-22-004 are may be void in Wisconsin.
On Thursday, August 3, 2006 a three year investigation came to the conclusion that Diebold committed fraud against Wyle Labs in order to obtain valuable qualification numbers from the National Association of State Election Directors (NASED) Voting Systems Board (VSB). It appears that over a period of several years, Diebold and its corporate predecessor, Global Election Systems3, knowingly and repeatedly withheld from review source code to the several versions of WinCE (Windows Compact Edition) used in the touch screen DRE’s manufactured by the company. Such source code review is required under both the 1990 and 2002 Voluntary Voting System Guidelines in Section 7.44 and Volume I Section 1.65; respectively.
For the details of the alleged fraud, I would refer you to the article by Jim March6 and the accompanying Declaration by Dr. Lee7. The thumbnail sketch of this story is that Talbot Iredale, V.P. for Research and Development for Diebold specifically instructed subordinates to not turn over the WinCE source code to Wyle Lab for the required source code reviews and further he instructed his subordinates: “We do not want to get Wyle reviewing and certifying the operating systems. Therefore can we keep to a minimum the references to the WnCE 3.0 operating system?” The second half of the story is that Diebold took advantage of the bovine lack of curiosity exhibited by Wyle Labs and Ciber, Inc. Both labs have stated that anything Diebold declared as "commercial off the self" (COTS) software, they treated as COTS software without any verification as to whether the software was or was not in fact COTS.8,9,10
NASED Qualification Numbers are used to identify specific systems tested by the Independent Testing Authority to indicate the referenced systems conform to the 2002 VVSG.11 By apparently committing fraud to obtain these valuable numbers, DESI has vitiated these numbers and these qualifications numbers are null and void.
As can be found on the NASED site12, these systems contain a Diebold touch screen DRE (either a TS R6 or TSx). It seems that Diebold may have committed fraud against Wyle Laboratories in order to obtain national qualifications numbers for systems containing direct recording electronic touch screens manufactured by Diebold.
Now to the legal issues, the US Supreme Court, state courts, and courts around the world have all upheld the common law maxim: Fraud Vitiates Everything. A sampling of such cases are:
• Nudd v. Burrows, 91 US 426 (1875), “Fraud destroys the validity of everything into which it enters” If in fact Diebold has committed fraud it is not a small legal matter. Such fraud would prevent the certification in Wisconsin of any Diebold system which contains either a TS R6 or TSx DRE touch screen because there is now no valid NASED qualification number for these systems. Diebold must submit the source code for all 4 (or more) versions of Win CE used in its touch screen DRE systems and obtain a valid qualification number from the Election Assistance Commission.18
• Boyce’s Executors v. Grundy, 3 Pet. (28 US) 210 (1830), “Fraud vitiates everything”
• United States v. Throckmorton, 98 US 61, 70 (1878) “Fraud vitiates the most solemn contracts, documents and even judgments”
For those of you think this legal maxim does not apply now that the US Constitution is a living document of no fixed meaning13, here are some more recent citations from around the US and the world:
• Ellett v Ellett Virginia 0824-00-2 (March 13, 2001)14 where a property settlement is over turn and specifically cites Throckmorton.
• Dakota Partners v. Glopak, Inc, 2001 ND 168 North Dakota Supreme Court15
• In Re Jose Alejandro Penafiel, Relator, No. 05-021316 Texas Supreme Court (2001) "Texas law holds that fraud vitiates every transaction tainted by the fraud"
• Lazarus Estates Ltd -v- Beasley  1 QB 702 from the UK.17
I realize this revelation comes at an inconvenient time. The September primaries for Wisconsin are only 5 weeks away with the general election in November in 13 weeks. It is not the fault of this or other investigators that Diebold may have committed fraud for more than 4 years. It is not my fault Wylie Labs and Ciber Labs are gullibly ignorant of operating systems from Microsoft or of the National Software Reference Library19 used to verify COTS software versions. The only question before the State of Wisconsin (and 37 other states) is whether elections will be held on uncertified systems because it is inconvenient to obey the law or whether this state and others will abide by its own statutes and regulations despite any inconvenience.
1 http://www.uselections.com/voting/faq.htm. The states are: Alaska, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Nevada, New Mexico, New York, Ohio, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Washington, and Wyoming.
2 Wisconsin Election regulation 7.01(1)e http://elections.state.wi.us/docview.asp?docid=2440&locid=47
9 http://www.bbvforums.org/forums/messages/1954/27282.html Specifically the quote Jim Neu of Wyle Lab: “Unfortunately I don't think that we have all of the data here. Again, what the information appears to indicate is it was characterized as COTS, that it was part of the review done by the software ITA, and that it was not reviewed, apparently because of that.”
10 http://www.bbvforums.org/forums/messages/1954/23075.html Specifically the quote by Jim Neu of Wyle Lab: You know I don't know for certain the answer to your question but the answer really revolves around the fact that if [WinCE] was represented to us -- if it were firmware -- and it was represented to us as COTS unmodified, then we would not review it. If it was represented to us as COTS that had been modified and it was firmware, then we would review it. So this person has made the assumption here that his Win CE apparently is not modified. Because he says therefore we don't need to get Win CE 3.0 certified.
16 http://www.supreme.courts.state.tx.us/ebriefs/05/05021303.pdf Page 24
17 “I cannot accede to this argument for a moment. No court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgement of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. The court is careful not to find fraud unless it is distinctly pleaded and proved; but ones it is proved it vitiates judgements, contracts and all transactions whatsoever; see as to deeds....... So, here, I am of opinion that if this declaration is proved to have been false and fraudulent, it is a nullity and void......" ( Denning LJ)
18 As of July 10, 2006 the Election Assistance Commission has assumed the duties previous performed by NASED with regards to issuing qualification numbers.
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