Ohio Secretary of State Jennifer Brunner this week filed countercharges against Premier Election Solutions, formerly Diebold, claiming the company failed to live up to its contractual obligations by providing electronic voting machines that malfunctioned and lost votes.

Brunner filed the state's lawsuit in the Franklin County Common Pleas Court on Wednesday, in response to one that Premier brought against the Cuyahoga County Board of Elections and the secretary of state. Premier's lawsuit had requested a court determination stating it met the obligations outlined in its contracts.

"Based on the objective evidence, we believe that Premier's equipment has failed to perform as required by its contracts and according to state law. We have taken this action to recover taxpayer funds spent for voting systems used in half of the state's 88 counties because Ohioans deserve better," Brunner said in an announcement.

Ohio seeks punitive damages for providing touch-screen voting machines that caused problems in at least 11 of the 44 counties using them. It claims a breach of warranty, breach of contract, failure to conform to Ohio law, and fraud in inducement.

Brunner said that Premier's system dropped votes when memory cards were uploaded to shared servers. Election staff recovered the votes hours later, she said.

Election workers notified Premier of the problems and received a product advisory notice in late May. The notice explained that an antivirus program that operated on the server simultaneously had caused the problems. Premier instructed users to disable the antivirus software on vote tabulation servers when uploading votes from memory cards.

On May 30, Premier sued the Ohio secretary of state and the Cuyahoga County Board of Elections and requested the court to state that it had complied with all of its obligations under contracts and warranties for the voting systems. In April, the Butler County Board of Elections notified Brunner of potential equipment malfunctions. Brunner's IT staff and boards of elections staff launched a statewide investigation and concluded that similar problems occurred in 11 Ohio counties that used Premier's machines.

Brunner continues to investigate the malfunctions and test Premier's explanation that the problem was caused by the antivirus software. The state is developing mitigation plans to identify the potential for dropped votes and to fix the problem.

Brunner said the software was certified by the Board of Voting Machine Examiners as part of the Premier system when the system was introduced in Ohio. Finally, she claims that Premier did not document its explanation that the antivirus software caused the problems.