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HAMILTON — Following one presidential election that ended in litigation and another that hinged on Ohio, election officials across this politically divided state are expecting voting machine malfunctions in November.

The problem: a glitch in the Premier Election Solutions software used in 44 Ohio counties can cause the machines to tell workers all votes were counted when in fact they weren't.

Company officials say they have a patch, but don't have time to get it approved and released before the election. Instead, they've issued a national product advisory telling users what problems to look for and what to do if they occur.

The lawsuits are already flying. Premier Election Solutions, a Diebold subsidiary, is suing the state for a declaration that it fulfilled its contract in providing the voting machines. The state is suing back for breach of contract.

The Butler County Board of Elections will vote today, Aug. 28, on whether to back the state in the suit. "I believe that we will indeed join that lawsuit against Premier at the request of the (state)," said Board of Elections Chairman Tom Ellis.

Butler County was the first to announce the problem after more than 200 votes went nearly uncounted in two ballot runs after the March primary.

But the problem may not be localized to Ohio, as officials originally thought. The company recently conceded that the problem may not be caused by anti-virus software, but may be an error that has existed in the machine's code for more than a decade.

Butler County Board of Elections Director Betty McGary said that Premier was hesitant to admit the problem was its equipment.

"It was the result of Butler County elected officials and the Ohio secretary of state continuing to push the issue to determine the cause of the machines dropping the votes," McGary said. "It wasn't all of a sudden Premier saw the light."

But with 34 states using this software across the country, some question why — or if — the problem surfaced only in Ohio.

"This could occur in counties where they could not have caught it," McGary said.

No reports of problems with Premier machines have come in from anywhere else, though it's possible problems wouldn't have been caught, said Rosemary Rodriguez, chairwoman of the federal Election Assistance Commission.

"Butler County was the county that identified it, and they really stuck to their advocacy for their voters and I think they've done a great job," she said. "(Premier) did the right thing by alerting all of their customers whether or not they're having the problem."

Premier Spokesman Chris Riggall said any elections office that did due diligence in counting votes would have found the error. It's possible it occurred elsewhere, but others handled the problem without reporting it to the company.

He said the company delivered on its contract by advising people on what to do if problems arise. "I don't think that's a realistic expectation for any technology that there never be any issue in the operation of the system," Riggall said. "We don't have concerns that these votes will not be tabulated properly or that voters will somehow be negatively affected by that issue."

But McGary is not pleased. She pointed out that the federal government paid $5 million for equipment in Butler County alone and the Butler County commission pitched in another $1 million. Plus, the county pays $65,000 a year for maintenance of the system.

"With that kind of money being spent, you expect everything to be running smoothly and to be running accurately," McGary said.

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