SAN FRANCISCO (Map, News) - San Francisco’s city attorney announced Wednesday that he is prepared to sue the company that supplied The City with its voting machines, charging that the vendor’s failure to certify its machines resulted in an election day “travesty” without results because election workers are required to take extra steps to count each vote.

Although city officials have known about some of the potential certification problems with its Election Systems and Software voting system, it did not receive official notice from the state until late summer that it would not be allowed to use its AutoMARK machines for disabled voters, or tabulate votes with the optical scan machines used at the precincts.

As a result, the ballots from The City’s 561 polling sites were transferred to City Hall to be visually inspected and then fed through the election department’s central voting system. Additionally, election workers are required to “remake” a new ballot when a voter — who is allowed to rank up to three candidates for the same local office — leaves one or more of the slots blank. A complete tally of votes is not expected for several weeks.

City Attorney Dennis Herrera said he chose not to immediately pursue breach of contract charges against ES&S this summer, but wait until after the election, because he “did not want this issue to somehow lead to a crisis of voter confidence that would perhaps drive voter turnout even lower than its been.”

City officials are estimating that just more than 154,000 San Franciscans voted in this Nov. 6 election, about 37 percent of registered voters. It is down from the 60 percent voter turnout last November and the 46 percent voter turnout in 2003, when Newsom was elected.

The City sent a letter to ES&S on Wednesday demanding that the company remedy the contract breaches by paying the additional costs The City incurred — estimated at $300,000 — for the extra effort to count ballots this year; pick up the tab for costs associated with borrowing AutoMARK machines from Contra Costa County; and agree to provide San Francisco with certified AutoMARK machines in time for 2008.

If ES&S does not respond affirmatively to the demands by Nov. 19, Herrera said he would sue.

Ken Fields, a spokesman for ES&S, provided The Examiner with a statement Wednesday that said the AutoMark machines had been previously certified and that modifications to the version provided to San Francisco were “not related to the operation of the voter assist terminal.” With regards to the conditional use certification imposed on the precinct machines, Field said ES&S “met our contractual obligations to San Francisco.”

Earlier this year, a decision made by the Board of Supervisors resulted in an extension for the ES&S contract instead of an approval for a $12.6 million with a different company, Sequoia Voting Systems. At the time, some supervisors had questions about the transparency of the electronic voting machines.

Board of Supervisors President Aaron Peskin reactivated the approval process for the Sequoia contract last week, although it is not known if the matter will be resolved in time for the February 2008

election.

beslinger@examiner.com