New York State Considers Adopting a Controversial Touch-Screen Vote-Counting Machine
Lawyers for the nation’s largest manufacturer of electronic-voting equipment are trying to squash legitimate criticism of their products. One machine responsible for a 26,000-vote miscount threw into doubt a local election in Pennsylvania.
A Wall Street law firm representing Election Systems & Software LLC of Omaha, Neb., has sent a cease and desist letter to election reform advocacy group SMART Elections. The letter demands that the group “retract and correct” criticism of the ES&S ExpressVote XL touch-screen voting machines.
Especially disputed is the group’s effort to dissuade the New York State Board of Election from certifying the machines for use in elections there. The state board took up the matter on Jan. 28 and passed a resolution against certifying the ExpressVote XL machine. The board did approve other ES&S machines, however.
ES&S has a pattern of using legal tactics to intimidate its opposition.
“ES&S will not hesitate to hold each of you and others who are responsible for the dissemination of these false and defamatory accusations, personally and individually liable,” ES&S attorney Alan S. Lewis wrote to the officers of SMART Elections on Jan. 4.
“We demand that you immediately cease such conduct,” Lewis concluded, “and retract and correct your previous statements by prominently posting corrections to your website and emailing all of those to whom you have previously sent emails regarding ES&S and the ExpressVote XL.
“ES&S is prepared to pursue all remedies in law and equity.”
Like many corporate giants, ES&S has a pattern of using legal tactics to intimidate its opposition. But unlike Republican critics who have leveled unfounded accusations against other voting-equipment makers, critics of ES&S machines have considerable facts on their side.
A Princeton University professor of Computer Science, Andrew Appel, said security concerns surrounding the ES&S machine are well-founded:
“The ExpressVote XL, if adopted, will deteriorate our security and our ability to have confidence in our elections, and indeed it is a bad voting machine.”
ES&S previously defended its litigious approach, claiming they sue to keep competitors honest. But the company has a history of threatening with legal action election-reform groups and governments choosing not to buy their equipment.
As DCReport reported, experts warn that so-called ballot-marking devices (BMDs) force voters to use technology to mark their ballots, potentially compromising election results. The ExpressVote XL uses a 32-inch touch screen to register votes and produces a paper record for the voter.
The company said the machine “maintains the highest levels of physical and digital security controls. It provides voter confidence with on-screen, printed and audio playback options for vote selection verification.”
On Election Day 2019, new ExpressVote XL machines registered just 164 votes—out of 55,000 cast in 100 precincts—for Democrat Abe Kassis in his run for a Northampton County, Pa., judgeship.
The electronic vote tabulations didn’t match the paper backup ballots; not even close. Hand counting of the backup ballots revealed Kassis actually won, receiving 26,142 votes.
“The touch screens on these new machines are garbage,” Paul Saunders, a judge of elections in Hanover Township, said in an email to the county less than an hour after voting began that day. He cited difficulties voters said they were having.
Following the problematic Pennsylvania election, a joint news conference was held where ES&S acknowledged responsibility. ES&S senior vice president of product development, Adam Carbullido, blamed “human error.”
Carbullido said the company took “full responsibility” for the electoral fiasco: “ES&S staff did not provide the proper guidance and scrutiny during the pre-election … testing.”
County officials said they were “deeply, deeply disappointed and, at some points, angry with the performance of the XL on Election Day.”
Yet, ES&S lawyers didn’t seem to consider statements from Northampton officials or their own management when they threatened SMART Elections and its officers with litigation:
“The allegations you … have made and continue to make about ES&S and the ExpressVote XL are utterly false and unsupported.
“These allegations are very serious and have harmed ES&S and threaten to interfere with the ExpressVote XL’s certification for use in elections in New York State.”
Experts are clear that SMART Elections is “basing their journalism and advocacy on good science.” Princeton’s Appel, one of the authors of the study “Ballot Marking Devices (BMD’s) Cannot Assure the Will of the Voters,” disputes the ES&S lawyers:
“The ExpressVote XL, if hacked, can add, delete or change votes on individual ballots—and no voting machine is immune from hacking.”
ES&S lawyers said, “ES&S’s voting systems have undergone stringent testing and been certified by multiple states.”
However, as DCReport recently highlighted, in Texas the certification process is not foolproof. And Texas wasn’t the only state with lax certification procedures.
South Carolina Signs On
When South Carolina upgraded its machines, SMART Elections advisory board member and a University of South Carolina computer science professor, Duncan Buell, tried sharing his knowledge of the state’s problematic history with ES&S.
Buell’s said concerns arose after finding flaws with the code that led to votes being counted more than once, ignored or tallied incorrectly. After being scheduled to speak to the selection committee, Buell was bumped from the agenda.
South Carolina proceeded to purchase $51 million worth of ES&S machines ahead of the 2020 election without hearing Buell’s expert testimony.
Despite this ES&S’s lawyers’ demands, SMART Elections’ own lawyers did not mince words in their response to ES&S’s attorneys:
“You should know quite well that anyone, even an aggressive company like Election Systems & Software, cannot sue someone for expressing an opinion.”
They conclude their letter with a reference to the Trump-provoked Jan. 6 insurrection at the Capitol in Washington:
“Set in the context of the shameful actions last week in our nation’s capital, your effort to intimidate opponents, in order to win a vote at the Board of Elections, is disgraceful.”
Featured image: An Election Systems & Software ExpressVote XL voting machine in Hanover Township, Pa., in 2019 (Reuters)