The touch-screen voting setup used in half of Ohio's 88 counties doesn't work properly, and the former Diebold Election Systems should pay as a result, Secretary of State Jennifer Brunner said in a court filing yesterday.

    The move comes fewer than 90 days before Ohio voters go to the polls in an election that could decide the presidential race, but Brunner says safeguards will be in place by then in the affected counties to mitigate any risks.

    "We will make the equipment work, but this is not something that Ohio should be satisfied with for the long term," Brunner said. "Our goal is to have Ohio taxpayers compensated for this equipment that doesn't function properly."

    Brunner is seeking punitive damages from Diebold, now Premier Election Solutions, after she said an investigation showed that votes in at least 11 counties were "dropped" in recent elections when memory cards were uploaded to computer servers.

    Elections workers discovered the missing votes, but not until many hours later in most cases, Brunner said. The malfunction first was discovered in Butler County in April, she said.

    Forty-four counties, including Licking and Fairfield in central Ohio, use Premier touch-screens. Franklin County uses touch-screens from a different manufacturer.

    Premier filed a lawsuit against the state and Cuyahoga County in May seeking a ruling that it had satisfied the obligations of its state contract to provide touch-screen voting machines in the county, which replaced the equipment this year.

    County officials responded by accusing the company of breach of contract, fraud and negligence, and Brunner filed a counterclaim against the company yesterday in Franklin County Common Pleas Court.

    Brunner wants the court to find that Premier made false representations about its equipment and failed to live up to contractual obligations and warranties. Ohio spent millions of dollars in mostly federal funds to upgrade voting systems after problems with punch-card ballots in Florida in the 2000 presidential election.

    Premier spokesman Chris Riggall said he hadn't seen the court filing and couldn't comment on it specifically.

    But he said a conflict was identified involving the company's software and virus-protection software. A product advisory was issued in May, but Brunner said her office still is reviewing that explanation.

    Riggall defended the systems, which he said are used nationwide and have features in Ohio, including a paper audit trail, to ensure votes are counted.

    "We have, in fact, provided a quality voting system," he said. Last year, North Canton-based Diebold Inc. sought to make its Allen, Texas-based elections division more independent and changed its name.

    Brunner, a first-term Democrat, commissioned a study last fall that concluded all touch-screen voting systems used in Ohio are substandard and should be replaced with a paper-ballot system.

    But the Republican-controlled legislature and many elections officials objected, saying no election system is perfect and that security procedures should be beefed up instead. That is happening this fall.

    Steve Harsman, director of the Montgomery County Board of Elections, said there were three instances since 2005 when memory cards in his county did not upload votes. The problem was caught but chalked up to human error at the time, he said.

    Harsman, a former president of the Ohio Association of Election Officials, said he's confident that the problem has been identified and that procedures will be in place this fall to avoid any problems.