Election Systems & Software (ES&S) sold nearly 1,000 electronic-voting machines that were not certified to five California counties in 2006, Secretary of State Debra Bowen said Tuesday.

"Given that each machine costs about $5,000, it appears ES&S has taken $5 million out of the pockets of several California counties," Bowen said in a statement.

ES&S sold 972 of its AutoMark Phase 2 Model A200, even though the company never submitted that version of the AutoMark machine to Bowen's office for certification in California, she said. ES&S delivered hundreds of the Model A200 to the California counties before it was certified by federal election officials in August 2006, she said.

Bowen will seek the maximum penalty, $9.7 million plus the original $5 million cost of the machines, if ES&S is found to have broken the law, she said in the statement. Under California law, Bowen can seek damages up to $10,000 per violation, counting each voting machine as a separate violation.

A public hearing on the matter is scheduled for Sept. 20.

"While ES&S may not like California law, I expect the company to follow the law and not trample over it by selling uncertified voting equipment in this state," Bowen said.

Another version of the AutoMark, known as Phase One or Model A100, was certified for use in California in August 2005. Fourteen California counties use AutoMark e-voting machines, Bowen said. ES&S sold the Phase 2 machines to five counties: San Francisco, Colusa, Marin, Merced, and Solano, she said.

ES&S issued a statement saying it has "the greatest respect for the federal and state certification processes. We have a long history of complying with those extensive and thorough examinations of voting technology."

The company will work with the state of California, it said. "This company has grown over the years by meeting the election-related needs of the jurisdictions we serve with quality technology and quality services," ES&S added.

Under California law, no voting system can be used in the state until it has been certified by the Secretary of State's office. Vendors also are required to get the secretary's approval of any changes to a certified voting system. If the Secretary of State's office determines a certified voting system has been modified without approval, it can ask a judge to impose penalties.

The Secretary of State's office is required to hold a public hearing, and give 30 days' notice, before formally asking for penalties to be imposed on a voting-machine vendor.

Earlier this month, Bowen mandated new security standards for the state's e-voting systems, following an independent review that slammed the security of the technology. ES&S machines were decertified because ES&S was late in providing access to their products.