Isn't this prima facie evidence of machine tampering?

Remember the case of the unauthorized person on the vote tabulator in Ohio? Can't this be taken as prima facie evidence of tampering of the computers? After all, we have an UNAUTHORIZED person on the actual counting computer shortly before election day. And this guy is not even a current employee of ES&S, but a FORMER employee.

Can somebody with legal expertise give an opinion?

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http://www.votersunite.org/article.asp?id=3748

Board awaits state followup
By ERIN MILLER, The Evening Leader. November 6, 2004

WAPAKONETA Auglaize County Board of Election members say they have not heard any more from the state regarding a possible investigation after receiving notice of being placed on administrative oversight last week.

"Absolutely nothing," board member Diana Hausfeld said in a telephone interview Wednesday afternoon when asked if the board had received any information about the investigation

Election Board Director Jean Burklo, in her office Wednesday morning, said she has not received any information from Secretary of State J. Kenneth Blackwell's office since notice of the board being placed on administrative oversight arrived late on Oct. 30.

James Lee, spokesperson for the secretary of state's office, said last week the specific conditions of the administrative oversight and reasons for the oversight were available after Tuesday's election. Lee said Wednesday afternoon the Secretary of State's office was focusing its efforts on assisting county elections boards with processing and counting provision ballots.

"These other issues will be addressed in the coming weeks," Lee said.

In a letter dated Oct. 21, Ken Nuss, former deputy director of the Auglaize County Board of Elections, claimed that Joe McGinnis, a former employee of Election Systems and Software (ES&S), the company that provides the voting system in Auglaize County, was on the main computer that is used to create the ballot and compile election results, which would go against election protocol. Nuss claimed in the letter that McGinnis was allowed to use the computer the weekend of Oct. 16.

Nuss, who resigned from his job Oct. 21 after being suspended for a day, was responsible for overseeing the computerized programming of election software, according to his job description. His resignation is effective Nov. 11.

The letter also included allegations that Burklo released a sheet from a petition packet filed by Auglaize County Common Pleas Judge Frederick Pepple last December.