November 4th, Diebold filed a complaint for Declaratory Relief and Motion for Temporary Restraining Order and Preliminary Injunction, in objection to a North Carolina requirement to place "all software that is relevant to functionality, setup, configuration, and operation of the voting system" in escrow and to provide the names of all programmers responsible for creating that software (N.C.G.S. section 163-165.9A). The requirement is a part of a new and robust statutory scheme in North Carolina intended to make election equipment and accompanying procedures more transparent, more secure, and more reliable in the eyes of the public. Despite non-compliance with these transparency requirements, Diebold's motion was granted in part and on November 7th Diebold submitted its bid.
The EFF filed a motion November 18th to force Diebold to comply with the requirements arguing that Diebold did not meet the standards for issuance of preliminary injunctive relief and that the court's order is overbroad.
The EFF motion suggests that Diebold sought the preliminary injunction, because the revised election laws are overbroad and it received "conflicting guidance" as to compliance. The crux of the issue, though, appears to be that Diebold relies on third-party software and would be unable to place a bid if the transparency requirements are enforced. Apparently no showing has been made in support, but Diebold claims that it would not be able convince third-party software providers to deposit source code in escrow and to provide contributing programmer lists.
The EFF's position is that the revised election laws--particularly the statutory requirements in question here--are the result of deliberate policy decisions by the North Carolina legislature to ensure election integrity and Diebold's failure to meet those requirements in no way makes the sections overbroad.
A ruling on the November 28th hearing in Diebold's favor (however unlikely) would be a major set back in North Carolina's efforts to overcome just one of the many challenges in implementing e-voting. Such a ruling would encourage reliance on third-party software as a means to hide code, undermining efforts to create transparency and ultimately to protect the integrity of the election process.