A leading state legislator now says last week’s decision by Secretary of State Bruce McPherson to allow some counties to use voting machines made by Diebold Elections Systems, Inc. violated state law.

In a letter sent to McPherson yesterday, Senator Debra Bowen (D-Marina del Rey) says that McPherson’s decision to “conditionally” certify Diebold machines for use in 2006 was a mistake.

“While your decision may be good for Diebold and its shareholders,” she writes, “it is not in the best interests of California’s voters or our democracy.”

[McPherson, as we’ve reported before, sent Diebold’s machines back for additional federal testing last December, after reports of potential security flaws. Those tests haven’t been completed, but on February 17 McPherson went ahead and signed off on Diebold machines for the June and November elections.]

The senator claims that McPherson’s decision runs afoul of California elections law, which says that electronic touch-screen machines can’t be approved until they have received “federal qualification.” But a spokesperson for McPherson says that Diebold’s machines have, indeed, received federal qualification… and that McPherson’s request for “additional” testing was made after Diebold’s optical scan and touch-screen machines had received federal approval.

The letter from Bowen (one of two Democrats running for McPherson’s job this year) also repeats a challenge that she’s made in the past: that Diebold’s touch-screen voting machines aren’t compliant with the state’s new “paper record” law.

That law requires that voters in counties with touch-screen machines be allowed to check the accuracy of the machine on a paper prinout. For the blind, the law says that an audio playback must be made available.

But here’s the rub: even a spokesperson for Diebold admits that their audio device reads back whatever is recorded on the machine itself. Senator Bowen, however, claims that state law requires that a blind voter have access to what’s on the paper printout, not what’s in the machine’s memory.

Even some local elections officials have told me that they have questions about this very same small… but potentially important… detail. But a spokesperson for McPherson says that his office is confident that the Diebold machines “comply with the [paper trail] law” and that former Secretary of State Kevin Shelley thought so, too.

If any of this is going to impact the 2006 elections, it will have to do so quickly. Elections officials in several counties are already in the process of acquiring Diebold machines. And the company expects as many as 21 counties will be using its machines on June 6.