Tomorrow morning, a New Jersey federal judge will hold a hearing to decide whether to block the merger of the nation's two largest vote counting companies.
Jonathan Rubin, a Washington-based Patton Boggs partner who represents Hart InterCivic Inc., a smaller voting-machine maker, has asked Judge Robert Kugler of the U.S. District Court for the District of New Jersey to issue a temporary restraining order, alleging that the merger of the voting division of Ohio-based Diebold and Election Systems & Software poses a "threat of irreparable harm" to voters.
The combination of the two voting-machine giants would give ES&S control of election systems used in nearly 70 percent of the country's voting precincts.
Rubin said that jurisdictions across the country, which select voting machines based on competitive bids, would have little choice but to use the systems offered by ES&S if the acquisition goes through.
“As our economist says, we’re not talking about shampoo. These companies are in the business of something that is essential to the function of democracy,” Rubin said.
Rubin said his client is seeking to have ES&S divest Diebold Inc.'s Premier Election Solutions, the company’s voting division, but would also accept having the judge order ES&S to keep Premier Election Solutions as a separate, standalone company.
The merger has also drawn the attention of Sen. Charles Schumer (D-N.Y.), who has asked the Justice Department to review the acquisition.
A spokesman for ES&S did not immediately respond to requests for comment.