Prima facie evidence of machine tampering?

I'm not a legal expert, so I'm seeking the opinion of the daily KOS community.

If you recall, several weeks ago there was a story about an authorized person getting access to a computer used for the election in Ohio. The full report is given below, but a few things to note: (a) the person was on the computer that was used to tabulate the votes, (b) the person was working on the computer over the weekend shortly before election day, (c) the person was not authorized to access the computer, (d) the person was not supervised while on the computer, and (e) the person was not even a current employee of ES&S (the software manufacturer), but a former employee.

My question is this. Couldn't one reasonably argue that this is prima facie evidence of machine tampering, which actually shifts the burden of proof over to election officials to prove that there was not fraud? Can't this be used as the basis to supeona the individual who was on the computer? Can't this be used as the basis to take the computer, software, etc. into evidence, and have computer experts look at them?

--Full article below the fold--

Board awaits state followup
By ERIN MILLER, The Evening Leader. November 6, 2004

WAPAKONETA Auglaize County Board of Election members say they have not heard any more from the state regarding a possible investigation after receiving notice of being placed on administrative oversight last week.

"Absolutely nothing," board member Diana Hausfeld said in a telephone interview Wednesday afternoon when asked if the board had received any information about the investigation

Election Board Director Jean Burklo, in her office Wednesday morning, said she has not received any information from Secretary of State J. Kenneth Blackwell's office since notice of the board being placed on administrative oversight arrived late on Oct. 30.

James Lee, spokesperson for the secretary of state's office, said last week the specific conditions of the administrative oversight and reasons for the oversight were available after Tuesday's election. Lee said Wednesday afternoon the Secretary of State's office was focusing its efforts on assisting county elections boards with processing and counting provision ballots.

"These other issues will be addressed in the coming weeks," Lee said.

In a letter dated Oct. 21, Ken Nuss, former deputy director of the Auglaize County Board of Elections, claimed that Joe McGinnis, a former employee of Election Systems and Software (ES&S), the company that provides the voting system in Auglaize County, was on the main computer that is used to create the ballot and compile election results, which would go against election protocol. Nuss claimed in the letter that McGinnis was allowed to use the computer the weekend of Oct. 16.

Nuss, who resigned from his job Oct. 21 after being suspended for a day, was responsible for overseeing the computerized programming of election software, according to his job description. His resignation is effective Nov. 11.

The letter also included allegations that Burklo released a sheet from a petition packet filed by Auglaize County Common Pleas Judge Frederick Pepple last December.

•  recommended

  by A Ball of Lint on Wed Dec 01, 2004 at 10:13:09 AM PDT

•  There is too much going on in this election

  cycle to really point towards one thing.  Whether your talking about the lockdown in Ohio (weird at best and completely suspect without a tinfoil hat), the access to the computers remotely (Volusia County, FLa. or as you mention above), the obvious disenfranchisement of student and minority voters, the provisional ballot issues, etc.....  one of these things alone is enough to raise questions about the ultimate integrity of the result of the election.  I don't really question whether or not Bush won, I do, however, question whether Kerry lost.  These are different things.  The fact that I can't be comfortable saying that Kerry really truly without a doubt lost means the system is a bust.  There ought not be a question at all.

  by citizengeo on Wed Dec 01, 2004 at 10:17:35 AM PDT

  •  I think you have to start somewhere, though.

    And build up enough detail about each instance that you can.  If you run around with too many half-baked ideas you can easily be dismissed as a conspiricy theorist.  I think this one definitely belongs on the list.

    Remember the goal should be to get enough momentum to effect changes that will make our system of elections more accurate and secure.

    by marchmoon on Wed Dec 01, 2004 at 10:32:44 AM PDT

    •  I don't disagree with you at all

      I am just saying that even one incident like this, disregarding the rest of the horrifying melange of deceit should cast doubt on the results of the election.  I still can't fathom how this hasn't become the national brouhaha that it ought to be.  Here's praying satellite radio and the web blogs will liberate the press from its shackles of mediocrity.

      by citizengeo on Wed Dec 01, 2004 at 10:37:51 AM PDT

      •  I see

        You are right.  And because they don't, the people as a whole are overly confidant about our electoral system.  It is a cycle that feeds on itself.

        It is time to break the chain.

        by marchmoon on Wed Dec 01, 2004 at 10:44:16 AM PDT

•  Not prima facie

  To my mind, "prima facie evidence of machine tampering" would require one further element: evidence that at least one of the files that govern the ballot and compiler had been visited and changed during the times that Joe McGinnis was on the computer.  And of course I'd want a team of experts to determine that, not someone from Blackwell's office.

  But I like your approach - put the onus on them to prove the system wasn't compromised.  
  

  by Bob Love on Wed Dec 01, 2004 at 10:37:43 AM PDT

  •  Thanks.

    by pointsoflight on Wed Dec 01, 2004 at 12:15:47 PM PDT

•  Wow, they added an unrecommend button.

  Recommended.

  There really is just waaay too much stuff. I hope this is all being chronicled somewhere, and if nothing happens by the time the Senate meets, we should at least TRY to bring it to the Senate Floor (when they validate the vote.)

  by nephalim on Wed Dec 01, 2004 at 11:45:30 AM PDT