Bait and switch? Late notice from voting machine maker as they press for new approval

While the N.C. Board of Elections director has recommended going along with the vendor on the substitution, others see the move as a deceptive bait and switch.

Now, there is yet another delay.

ES&S lobbyists told the state Board of Elections attorney in November that they have one-sixth of the equipment needed to match demand for the 2020 elections under the current certification.

If the state rapidly certifies an updated version of ES&S’ systems – 5.2.4.0 instead of 5.2.2.0 – the company will be able to meet demand, according to statements by the company’s public relations manager, Katina Granger.

Anderson said she thinks that ES&S’ revelation that there won’t be enough equipment – unless the state administratively upgrades the systems – is part of a strategy to force the state’s hand.

“This certainly appears to be part of a strategy by ES&S to tip the scales in favor of a quick approval process requiring no further testing or evaluation the 5.2.4.0 system,” Anderson wrote in a memo to the other board members, referring to the technical number of ES&S’ newer system.

Holding on to the information of an equipment shortage until the last minute, the irregular channel of communicating that information, inaccurately disclosing the location where the machines are manufactured and not notifying the board of problems with the current system until after it was certified are all part of a “clear pattern of actions on the part of ES&S that represent a fundamental lack of candor in the certification process,” Anderson wrote.

In turn, the board staff, legal team and Executive Director Karen Brinson Bell recommended that the Board of Elections approve ES&S’ request. But election technology experts say Brinson Bell’s recommendation used technical language that was inaccurate in favor of ES&S’ system.

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On Nov. 15, Board of Elections general counsel Katelyn Love sent an email to board members addressing upgrades that both ES&S and Clear Ballot had requested for their systems. Love also informed the board members, for the first time, that ES&S claimed a shortage of available equipment.

Clear Ballot also claimed a shortage, though it is serving only one county – Onslow. A Clear Ballot representative told CPP that the company made the county aware of the issue from the beginning of their conversations in September. Onslow also has the option of keeping its current equipment, so a shortage would not jeopardize the county’s ability to conduct an election.

ES&S’ shortage, Love wrote, could force counties to continue using old voting machines that federal and independent agencies consider to be insecure technology. The state legislature ended the use of those machines on Dec. 1, but a potential extension allowing the continued use of those machines has hung over the certification process for months.

The chairman of the board, Damon Circosta, said in his first board meeting in August, in which he voted to certify all three vendor systems, that the No. 1 goal was to avoid the continued use of the old machines.

Anderson rejected these arguments.

“Let there be no mistake that we are not required to administratively approve 5.2.4.0 out of fear that the counties wanting to replace their now decertified iVotronic units with ExpressVote units would have no certified voting system option for conducting 2020 elections,” Anderson wrote in her memo.

ES&S’ iVotronics units are the old voting machines no longer considered to be secure and a model of a type of voting machines called direct-recording electronic machines. ExpressVotes are ES&S’ model of a newer technology called ballot-marking devices.

Anderson said several remedies could solve the equipment shortage issue and avoid certifying ES&S’ new system without the usual rounds of testing and demonstrations.

First, she said, is changing how the systems are used. Counties have a choice between using voting machines for all voters or deploying a single machine per precinct with most voters casting ballots marked by hand.

Mecklenburg County, for example, requested machines for all voters. If the county instead opted for hand-marked paper ballots for all voters, with the required single voting machine per precinct, the supply issue may be solved.

State board staff considers ES&S’ shortage of equipment to be a serious issue, according to Love’s email.

But ES&S did not use formal channels to communicate the shortage.

Instead, a company lobbyist told Love about having only one-sixth of the needed equipment, according to Anderson, which Love’s email also describes.

“It is inappropriate for ES&S to communicate this information through their lobbyist,” Anderson told CPP. “I indicated as much to (Love) and asked that she require the appropriate ES&S authority to put this information in a formal, written communication transmitted to the state board. The public record should reflect how and when these events transpired.”

The public record does show an inconsistency in the ways ES&S has communicated with the N.C. Board of Elections and with election authorities of other states.

ES&S first requested certification of its new system in February 2017. Like other technology, elections systems face regular upgrades.

While certification in North Carolina was pending, ES&S notified Michigan, Tennessee and Wisconsin that components in its 5.2.2.0 system were “end of life.” ES&S also told Michigan in March 2019 that that system was “no longer available for purchase.”

ES&S voting system applications for certification were submitted in at least four states – California, Montana, Pennsylvania and South Carolina – and did not include the version up for approval in North Carolina, 5.2.2.0.

ES&S did not notify North Carolina of the issues with its 5.2.2.0 system until Sept. 9, after the state had certified the system. State board staff members told CPP that they had no independent knowledge of these issues.

In its notification to North Carolina, ES&S did not use the phrase “end of life” or mention that the equipment was no longer manufactured, as it did for other states.

These issues, including the issue of a shortage of equipment, were not independently communicated by ES&S to Mecklenburg County’s Board of Elections, according to Michael Dickerson, that county’s Elections Board director, even though the state’s largest county was considering a contract for the equipment.

The lack of communication with state or county boards of election is “highly irregular,” according to voting machine and industry expert Eddie Perez.

“I have not encountered another instance where a vendor did not report such implementation challenges in a timely fashion,” Perez told CPP.

“It causes one to wonder whether ES&S had some other motive for not reporting the desired change much sooner.”

Perez worked for election technology and services company Hart InterCivic for 15 years. He is now the global director of technology for the Open Source Election Technology Institute, a nonpartisan, nonprofit organization that is a national leader in increasing the integrity and security of election technology.

“It’s not unreasonable to speculate that (ES&S) might have deliberately waited on mentioning the new information until very late in the process … to increase the likelihood that the NCSBE would have no other choice but to say, ‘Our hands are tied,’” Perez said.

In her memo to the board, Anderson interpreted the lack of communication as misleading.

“We must seriously examine the information ES&S has provided for our initial certification and their subsequent request for consideration of the modified system,” Anderson wrote.

“If we do so, we can conclude nothing less than submission of inaccurate and misleading information at multiple points in the process.”

Kevin Skoglund is the chief technologist for the nonpartisan, Pennsylvania-based group Citizens for Better Elections.

“Their strategy was lay low, don’t rock the boat during a fragile time, and then try to slide the upgrade through later,” Skoglund said.

“If they had instead told North Carolina that they need to use 5.2.4.0, they they would have had to go back through the North Carolina process and missed the very profitable 2019-2020 cycle of purchasing entirely.”

ES&S Sept. 9 request for certification of its updated system:

After ES&S sent its Sept. 9 letter to the board, election security activists began protesting the possibility that the board staff would administratively decide on certifying voting equipment without input from the board itself.

To calm those protests, according to state Board of Elections spokesman Pat Gannon, the board staff created a process to include board members in the decision.

The board staff would make a recommendation and, if no board member objected, that recommendation would go into effect within 48 hours. If a board member objected, it would trigger a board meeting to vote on the recommendation.

On Nov. 27, the day before Thanksgiving, the board staff issued its recommendation that ES&S’ request for a new certification be approved. Anderson objected and issued her memo explaining her reasoning. A board meeting to address this is expected next week.

According to Anderson, the recommendation included inaccurate language and incomplete information on the upgrades.

At issue is the process for certification of voting machine systems, both in North Carolina and federally. The heavily regulated process can lead to stagnation of voting equipment and make it difficult to implement upgrades, as North Carolina is currently experiencing.

The federal Election Assistance Commission regulates voting system certifications. States decide whether they want to follow the federal certifications, which are called Voluntary Voting System Guidelines.

Officially, the guidelines under which all voting systems in the country are approved were put into effect in 2005. While a new version of these guidelines was issued in 2015, all current systems are still certified under the older standards. The EAC has been working on more stringent revisions for several years.

North Carolina requires that the EAC first certify all voting systems before they can be certified in the state. The state then requires its own independent testing of the systems.

When a new voting system comes out, even if it is largely based on an older model, it still needs to undergo review for certification, according to EAC procedures. There are three versions of this review: de minimis, modification and full certification.

A de minimis change is one that is so insignificant that it “will not materially alter the system’s reliability, functionality, capability or operation,” according to the EAC certification manual. De minimis changes do not change the number of a system, like ES&S’s 5.2.2.0.

A modification only considers the proposed changes in a system, rather than the system as a whole. For example, a voting machine that marks ballots is only one component of a voting system. Another machine is required to count ballots at the precincts and another to count ballots that are mailed in, plus a computer to add up all the votes and keep election data. If there is a change to the software or hardware of only one of those components, it may be considered a modification of the system. A modification does change the numbering of a system, but not the first number. For example, 5.2.2.0 would change under a modification to 5.2.4.0.

A full certification is considered for an entirely new system. ES&S’ newest system to undergo a full certification is 6.0.0.0.

The technical definitions of each of these changes are important. The level of change has different testing requirements, which take different amounts of time and money to complete.

The update ES&S is requesting “ensures availability of the ExpressVote for several years to come,” according to a written statement from Granger at ES&S. ES&S is requesting the change be done administratively so that its machines can be in place for the March 2020 presidential primaries in North Carolina.

Unlike the EAC, North Carolina does not use the language of de minimis in its law or certification manual. North Carolina does use “enhancement” and “modification,” though the latter term isn’t defined. An enhancement is a change that “does not substantially alter the voting system,” according to Brinson Bell’s memo, though “substantially alter” is itself not defined.

To solve the problem of what is an enhancement versus a modification, and therefore what can be passed through certification quickly, the state board referenced the EAC’s definition of a de minimis change.

Brinson Bell’s memo to the board, which had input from several staff members including the voting system team, then went on to determine that changes from the system ES&S currently has certified in the state to the system that ES&S wants certified are all de minimis.

Several outside experts said Brinson Bell is either using a different definition of de minimis from the EAC or is using the phrase inaccurately, therefore calling into question the memo’s recommendation that the change be administratively approved.

In response to questions from CPP, Skoglund called one of the conclusions in Brinson Bell’s recommendation false.

The statement in questions: “The EAC issued a Certificate of Conformance for EVS 5.2.4.0 on June 5, 2018, as a ‘modified voting system configuration’ per the Scope of Certification because it determined the change was de minimis.”

A “modification and a de minimis change are different categories,” Skoglund said. “It is not possible for a system to be considered both.”

Skoglund said two modifications occurred between the system North Carolina certified and the one ES&S is requesting that the board administratively approve. The changes between the systems listed in Brinson Bell’s memo “fail to include the many significant changes (that) required it to be categorized as a ‘modification’ and retesting by the Voting System Test Lab,” he said.

Perez’s analysis came to a similar conclusion. Highlighting the lack of working definitions guiding the state, Perez said the state board “can base an ‘administrative approval’ on whatever criteria they want.”

The use of the phrase “de minimis” “was simply used as a justification for the administrative approval, irrespective of whether the EAC considered 5.2.4.0 to have ‘de minimis’ changes,” Perez said. “It’s clear that the EAC did not consider its changes to be ‘de minimis,’ or else they would not have subjected 5.2.4.0 to an actual ‘modification campaign.’”

Anderson issued similar objections in her own memo explaining why she objected to the administrative certification, calling the claim that the changes were de minimis “simply inaccurate.”

“The board needs to decide what we will require of ES&S at this juncture before granting certification,” Anderson said.

“At a minimum, we need to require the state-level testing and evaluation required by law and our certification program.”

In response to Anderson’s objections, Brinson Bell issued yet another memo delaying a board meeting until next week. Meanwhile, the board staff will reach out to the EAC and a voting machine testing laboratory for more information. Board staff members have repeatedly told Carolina Public Press that they have consulted with the EAC before Brinson Bell’s recommendation was made.

When the board meets next week, Anderson expects a vote on whether to approve Brinson Bell’s recommendation. Anderson will object to that approval and will offer a different motion.

“I will move that the board require the usual state-level (post-EAC certification) testing and evaluation of the 5.2.4.0 system prior to moving forward with a board vote on certification,” Anderson told CPP.

“We should not set a precedent by allowing administrative approval without further state-level testing/evaluation.”