Director of Elections Sends Letter Authorizing Measure in Light of Latest Failure by Electronic Voting Machine Vendor
Says Company's Performance in Most Recent - of Many Similar Incidences Around the Country - is 'Completely Unacceptable and Disturbing'
By Brad Friedman on 4/27/2006, 11:46am PT  

On Monday, Texas Director of Elections Ann McGeehan sent a letter to all state Election Officials authorizing them to create "emergency paper ballots" in light of statewide failures by Election System & Software, Inc. (ES&S) to provide ballots in time for the state's upcoming May 13 Runoff Elections, The BRAD BLOG has learned.

Early voting begins on Monday for those elections and counties across the state do not yet have ballots and, in many cases, programming for their optical-scan and touch-screen voting machines. ES&S has contracts with more than 140 Texas counties.

McGeehan has instructed officials to create and number their own paper ballots, secure boxes to store them in, and hire additional workers to manually hand count ballots as an emergency procedure to deal with the rapidly deteriorating situation.

The letter from McGeehan (posted in full exclusively at the end of this article) --- which does not mention ES&S by name, but refers to the Omaha, Nebraska-based company only as "a certified voting systems vendor" --- was sent in response to complaints from officials around the state that "programming media or, in some cases, your ballots" had not been received yet by officials.

In a statement to the San Antonio's Express-News this morning, Bexar County Judge Nelson Wolff says, "It sure is exasperating...We are looking at avenues to hold them responsible for this." Bexar County is just one of more than 140 in Texas with whom ES&S has contracts.

"They made their priorities," Wolff says, "and I think Texas certainly wasn't one of them."

The BRAD BLOG has also received statements from officials in other states who were still more direct in expressing their frustration with the company's business practices now being described by some as including "coercion" and "threats."

This most recent embarrassment for ES&S, the country's largest Electronic Voting Machine Vendor, is just the latest in what has now become an epidemic string of failures to meet contractual obligations in scores of states and counties across the country. The BRAD BLOG has reported on many of these troubling problems in a long series of articles in hopes of connecting the dots of those failures to illustrate and warn of the rapidly approaching E-Voting train wreck.

So far, both the mainstream corporate media, as well as many elections officials across the country have --- to the delight of ES&S --- failed to notice the remarkably clear pattern of delinquency and failure the company has demonstrated time and again across the nation in recent weeks and months.

Texas was plagued, during their recent March 7th Primary Election, by a host of failures in voting equipment made by both ES&S and Hart InterCivic, another voting machine vendor certified to do business in the state. Those failures on Election Day led to a statewide Election Contest filed by a former Republican Supreme Court Justice after tabulators failed and electronic ballots were misprogrammed and miscounted.

In Jefferson County, TX officials threatened to withhold payment after the debacle until their machines were fixed by ES&S. The company, however, answered by reportedly refusing to program the machines at all for the state's upcoming Runoff Elections unless payment was made in full. The county, in a bind, was forced to comply with the strong-arm tactics.

And now, with new elections just weeks away, officials all over the state are finding themselves --- like many other states across the country --- without the promised ballots from ES&S and scrambling for alternative solutions. Election Director McGeehan describes the situation as "completely unacceptable." Writing in her letter to Election Officials, she says:

We recognize that this kind of service from a certified voting systems vendors [sic] is completely unacceptable and disturbing. We will be pursuing all appropriate remedies from a state level that are available to us.

In the letter, McGeehan goes on to explain that officials should crate "emergency paper ballots" by either creating their own, or using "PDF format to print copies of the ballot" in cases were "proofs" had been previously supplied by ES&S.

Instructions are included for number and initializing thousands of ballots by hand:

After you print a copy of the ballot, you will need to put a ballot number at the top of the ballot beginning with the next ballot number of the last number of your original ballot order. In other words, if you ordered 15,000 ballots numbered 1-15,000, any ballots you create would be numbered beginning with the number 15,001. You will need to put your initials on the back of the ballot so you can determine it was an official ballot provided by you.

Further, officials are instructed that they may have to manually hand count ballots that would otherwise be counted by either optical-scan systems or recorded by touch-screen voting machines.

They are also told to create boxes for the ballot storage and find people to count them. McGeehan writes...

Of course, you will also need to secure ballot boxes for the placement of these paper ballots for the beginning of the early voting period. You may may need to hire additional clerks to assist with any hand counting.

Manual hand counted ballots have been called for by many critics of electronic voting machines. Thanks to the electronic voting machine company ES&S, counties in Texas may soon be doing exactly that.

ES&S, along with a handful of other such companies, including Diebold, Sequoia Voting Systems, Hart InterCivic, and a few others have been busy signing as many contracts as possible in the wake of the disastrous Help America Vote Act (HAVA) which set aside more than $3 billion federal dollars to encourage states to "upgrade" their equipment to electronic voting machines.

HAVA's provisions kicked in as of January 1, 2006 and the vendors have made millions despite massive failures by each of them to perform as promised. This, on top of a failure to provide voting systems that are either accurate or that American voters have been able to trust.

Prior to the mess in Texas, and especially since then, ES&S voting equipment has been found to fail in several states --- by those jurisdication who bothered to test it. And in still more jurisdictions, the company has failed to meet contractual obligations to provide promised equipment and ballots.

The memory cards used to store vote totals and ballot definition/programming on ES&S machines have been particularly troublesome for the company and found to be prone to complete failure to operate. In Summit County, Ohio, where officials are preparing for their own Primary Elections next week, pre-election tests several weeks ago revealed some 30% of memory cards had failed. In North Carolina, more than 1000 cards were recalled by ES&S prior to the state testing them but after the state was alerted to the problems in Ohio.

In several counties in Indiana, the company has failed to deliver ballots --- and in several cases, machines that worked at all --- in time for early voting which began several weeks ago. The state's Primary Election day is May 2. The Indiana Secretary of State, announced two weeks ago that subpoenas would be issued and hearings held in an "enforcement action" in consideration of possible fines to be levied against ES&S for their considerable and repeated failures in the state.

Johnson County, IN Clerk, Jill Jackson told the Indianapolis Star that it seemed ES&S felt it was "no big deal that they missed a statutory deadline."

"They're a big company," she reportedly said, "and it's like they don't care, that they'll get (the ballots) to us when they get them done, and that's not acceptable. I'm extremely disappointed in the vendor."

In West Virginia, early voting began on April 19 and, as the Daily Mail reported that day, "every county in West Virginia is facing trouble with new voting machines and county officials are voicing disappointment after months of preparation."

All 55 counties in the state have had problems with ES&S despite previous promises from the company that everything was under control. In a Kanawha County, WV commission meeting last September, ES&S official Gary Greenhalgh said, "Absolutely, yes," according to minutes of the meeting, when asked whether the company's machines would be available in time for the January 1, 2006 HAVA deadline.

Last week, Oregon's Secretary of State filed suit for Breach of Contract against ES&S after they failed to deliver touch-screen voting machines by the January 1, 2006 deadline agreed to in a contract signed last July. The company informed the state on January 10 this year, that they would not deliver machines at all unless the state changed the terms of the contract to allow late delivery of the promised machines.

Yesterday, The BRAD BLOG learned via discussions with Nevada County, California Registrar of Voters Kathleen Smith, that ES&S was threatening to refuse to provide programming and other services for the county's optical-scan systems, since the county had insisted on terms for the purchase of HAVA compliant touch-screen systems rejected by ES&S. Again, the private company --- whose product is paid for by tax dollars --- seemed to be leveraging their power over public elections in a voting jurisdiction which has become dependent on them to deliver their only means for carrying out an election scheduled just weeks away. California holds their Primary Elections on June 6.

Smith told The BRAD BLOG: "Now, I'm 41 days away from an election and they won't provide election coding services so that we can use the County's scanning equipment because I recommended against purchasing the AutoMark [disabled-accessible touch-screen] solution? Wow! We'll count the ballots manually before I will succumb to coercion or threats from ES&S."

A source in the Oregon Secretary of State's office has informed The BRAD BLOG that they have come to understand that ES&S has simply run out of machines, and they are now busy attempting to find reasons to blame anyone and everyone else for their failures to deliver.

In the days after the March 7 Texas Primary Election, The BRAD BLOG reported on a whistleblower, William Singer, who had attempted to alert the Texas Secretary of State and Attorney General in July of 2004 about problems with both ES&S and Hart InterCivic machines in the state, including what he described in the letters as criminal action by the company. Singer had been an employee of Hart InterCivic before becoming an election programmer in Tarrant County, Texas. His letters to state officials in both Texas and Ohio were largely ignored.

The complete text of the letter from Texas Director of Elections Ann McGeehan follows...

TO: Elections Officials

FROM: Ann McGeehan, Director of Elections

DATE: April 24, 2006

RE: Status of Ballot and Programming Card Orders for the May 13, 2006 Elections

We have heard from many of you that you have not received your programming media or, in some cases, your ballots, for the May 13, 2006 elections. We recognize that this kind of service from a certified voting systems vendors is completely unacceptable and disturbing. We will be pursuing all appropriate remedies from a state level that are available to us.

In the meantime, if you are one of the entities affected, the Secretary of State's office authorizes you to create emergency ballots. If you do not receive your ballots in time to properly prepare for early voting, you may create your own paper ballots or, if you received a proof from your vendor, you may use PDF format to print copies of the ballot.

After you print a copy of the ballot, you will need to put a ballot number at the top of the ballot beginning with the next ballot number of the last number of your original ballot order. In other words, if you ordered 15,000 ballots numbered 1-15,000, any ballots you create would be numbered beginning with the number 15,001. You will need to put your initials on the back of the ballot so you can determine it was an official ballot provided by you.

If you do not receive your ballot programming in time to conduct your required Logic and Accuracy tests, you will no option but to begin early voting using the emergency paper ballots. Once you have received your programs and have conducted a successful L&A test, you must begin using the electronic voting equipment. Guidelines for conducting Logic and Accuracy were mailed out to county election officials in Election Advisory 2006-05, dated February 21, 2006, and are posted on our website at http://www.sos.state.tx....ws/advisory2006-05.shtml.

Once you have prepared the emergency ballots, you will handle the voter in the regular manner as if paper ballots were being regularly used. If you intend to use optical scan ballots for election day, then the emergency ballots can either be hand counted by the ballot board or the manager of the central counting station can decide to have them duplicated for counting at the central counting station. There are no special lists or other record keeping you need to keep, except to adjust your ballot distribution form.

If you use only a DRE system,

Emergency Ballots
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will have to manually count the paper ballots and add your manual totals to the electronic count produced from your DRE central tabulating system. Of course, you will also need to secure ballot boxes for the placement of these paper ballots for the beginning of the early voting period. You may need to hire additional clerks to assist with any hand counting.

Once you have received your programming materials and have conducted a successful Logic and Accuracy test, you must begin to use your electronic systems during early voting, if possible. If a voter with disabilities attempts to vote while using the paper ballots, please advise the voter of the assistance procedure available and when the accessible voting systems will be available in the event the voter chooses to wait until the machines are available. We should also recommend that you contact your local disability groups, AARP chapters and Area Agencies on Aging, and ask them to advise their service populations that they might want to vote later in the early voting timeframe or on Election Day.

Again, we regret the unacceptable position that many political subdivisions are in due to poor performance by their contracted vendor. We appreciate how hard you all have worked to be compliant with the accessibility requirement. We will apprise you of any progress that we make to ensure that vendors perform the services they have promised and contracted to perform.

If you have any questions about this memorandum, please call us at 1-800-252-8683(VOTE).