Last minute software patches may be deemed "experimental" because that designation does not require certification and testing. Uncertified and untested software for electronic voting systems are presumably illegal under Ohio law. All election systems hardware and software must be tested and certified by the state before being put into use, according to Ohio Revised Code 3506.05. By unilaterally deeming this new software "experimental," Secretary of State Husted was able to have the software installed without any review, inspection or certification by anyone. ES & S, for their part, knows that this software will not be subject to the minimal legally required testing as stated in the contract on page 21 (Section 6.1).

The contract specifically states that this software has not been and need not be reviewed by and testing authority at the state or federal level. Yet, it is installed on voting machines that will tabulate and report official election results, which Ohio law forbids. Based on the Free Press reading of the contract, this software is fully developed, being referred as versions 2.0.7.0 and 3.0.1.0. Thus the only thing making this software "experimental" is the fact that it has never been independently certified or tested.