Kris Kobach, Kansas’s top election official, recently declared victory in the highly publicized Republican gubernatorial primary in Kansas, surpassing his opponent (sitting Gov. Jeff Colyer) by about 300 votes. Although Colyer has already conceded, last week’s election day computer “glitch” in Johnson County, the state’s most populous county, has cast a shadow over the legitimacy of Kobach’s victory.
At 9 p.m. on August 7, election day, with 10 of Johnson County’s precincts reporting (and just one other, smaller county left to report), Colyer led Kobach by 44 votes in the state and by 13 percent in the county.
— Caroline Sweeney (@CarolineKCTV5) August 8, 2018
But at 9:07 p.m., a reporter for the Kansas City Star posted that Johnson County would not display further results for at least two hours due to a “computer glitch.”
Big problems getting Johnson County results tonight. Estimate is final results won't be posted for at least two more hours. Big computer glitch.
— LynnHorsley (@LynnHorsley) August 8, 2018
At 5:50 a.m., the county finally published its remaining unofficial results, putting Kobach narrowly in the lead.
— Hunter Woodall (@HunterMw) August 8, 2018
Johnson County later explained that the problem involved its new ExpressVote touchscreen barcode ballot-marking system, made by Election Systems & Software, LLC (“ES&S”). More than a week later, ES&S has yet to explain the precise cause of the problem.
The recommendation to buy these machines came from Johnson County Election Commissioner Ronnie Metsker, who Kobach appointed in January 2016. Before the board of county commissioners accepted Metsker’s recommendation, election-integrity advocates and independent computer science experts expressed serious concerns about the security of these machines. As reported by the Shawnee Mission Post in May, the ExpressVote produces a paper “summary card” containing a computer-generated barcode. The barcode, which humans can’t read, and thus can’t verify, is the only part of the summary card that is then scanned and counted as your vote.
Marilyn Marks, executive director of the Coalition for Good Governance (which spearheaded the still-pending paper-ballot suit in Georgia), told TYT that “the official vote that is counted is a barcode—not a human-readable vote. The Johnson County voter has no idea what vote they actually cast. Voters can’t read barcodes, nor can they know how the machine is programmed to print or interpret barcodes.”
Although the “summary cards” also include computer-generated text, Kansas (like many states) does not require manual audits and will fund a candidate’s request for a recount only if the margin of the victory is less than 0.5 percent. Thus, Kansas is unlikely to use the text in a manual audit or manual recount. This is problematic because a manual audit or manual recount is the only means to verify the legitimacy of electronic vote totals, since ES&S and other private vendors block forensic analysis of their equipment based on the “proprietary” nature of the software.
A further issue is that the results of any such manual audit or recount would be unreliable due to the inability to know whether voters reviewed the text to verify that the machine didn’t print the wrong selections or omit some races entirely. In Johnson County, poll workers apparently gave conflicting instructions as to whether voters should undertake such a review. One voter told local reporter Shayla Patrick, for Fox 4 News of Kansas City, about his experience with a county election worker:
“What she had told me was that you had to print the card in order to review your selections, and then when I was standing there, I heard another election worker tell another individual that you can do it on the screen or on the card. And then someone else said that you had to do it on the screen otherwise there would be an issue.”
The ExpressVote training manual is equally unclear, describing the “post print verification” of the “summary cards” as “optional” and stating that the machines can drop the cards directly into a bin without voter verification:
“The voter can verify contest choices on the Verify Selections screen before printing the card. Once the voter verifies his or her choices, the voter can print the ballot summary card and either have it returned from the front slot or cast into a secure card bin for later tabulation. Additionally, ExpressVote has an optional post print verification that allows voters to visually validate the data scanned from their marked ballot summary card before the voter casts it into the secure card bin.”
As explained by Marks, “Even if a very conscientious voter attempts to verify that the card is a reflection of how she voted, there are very few voters with 100 percent recall of everything that was presented to them on the ballot. Therefore most voters do not and cannot verify that the print out is actually what was on their ballot. Simply put, the text summary of what voters purportedly voted is almost worthless from an auditing perspective. Voters must simply trust that the barcodes haven’t been erroneously or maliciously programmed.”
Another problematic aspect of the ExpressVote process that occurred on August 7 is that the candidate names couldn’t fit onto a single screen—voters had to push the “More” button to see them all. This problem also served to confuse voters in Johnson County.
In addition, touchscreens like the ExpressVote typically cause longer lines than hand-marked paper ballots because they limit the number of voters who can vote at once to the number of touchscreens at the polling place. Indeed, Metsker attributed last week’s long lines to the county having an insufficient number of machines.
Touchscreens, including the ExpressVote, can also disenfranchise voters if, due to a glitch or denial-of-service attack, they fail to work at all. In Johnson County, the Kansas City Star editorial board wrote, “some of the new machines simply didn’t work Tuesday, leading some voters to give up and go to work. Poll workers seemed unsure of a backup plan.”
ES&S, which accounts for about 44 percent of U.S. election equipment, is no stranger to controversy. The company (previously called American Information Systems) first raised eyebrows in 1996, when its chairman, Chuck Hagel, resigned a few weeks before announcing his intent to run for the U.S. Senate and then “surprised national pundits and defied early polls” to win the race by 15 points, even though pre-election polls had called the race a dead heat. In doing so, Hagel became Nebraska’s first Republican U.S. senator since 1972. Nebraska election officials reported that ES&S machines had counted about 85 percent of the votes in the race.
In 1997, ES&S’s founder, Bob Urosevich, became a vice president of voting machine vendor Global Election Systems. His brother Todd is a vice president at ES&S. Bob and Todd’s sister, Sueann Devereaux, née Urosevich, works in ES&S’s programming department.
In July 2000, Global promoted Urosevich to president and chief operating officer. Jeffrey Dean, a convicted cyberfelon, became a senior vice president in September 2000. Dean, who had previously “pleaded guilty to 23 counts of embezzlement involving sophisticated manipulation of computer accounting records,” also became the company’s largest shareholder.
Several months later, a Global machine lost 16,000 Gore votes in Volusia County, Florida, during the 2000 presidential election. The Volusia error was discovered only because an alert poll worker noticed Gore’s vote total going down. The error caused CBS News to prematurely declare Bush the winner and almost caused Gore to concede without a recount.
In 2001, Johnson County, Kansas, bought Global Election Systems’ AccuVote-TS touchscreen voting machines. It was later reported that the county’s election commissioner at that time, Connie Schmidt, appeared in marketing materials for the vendor, along with officials from Georgia, Maryland, and California.
Diebold acquired Global in January, 2002. In April 2002, the machines miscounted hundreds of votes in six different races in the county. Diebold reportedly “later attributed the glitch to a software error.”
Diebold told the AP that Jeffrey Dean left the company in 2002. But election-integrity advocate and author Bev Harris obtained Dean’s court file, which included internal Diebold memos showing that Dean had remained as a consultant.
In 2003, a review in Ohio “reported security flaws” with the the type of machines used in Johnson County. But Schmidt—who has provided “consulting services to the U.S. Election Assistance Commission (EAC) and served as the co-project manager for the EAC’s Election Management Guidelines”—said she was not personally concerned, reasoning that the voting machines themselves don’t connect to the internet. There was seemingly no concern for the fact that all voting machines must receive programming before each election from centralized election management systems that can and often do connect to the internet.
In August 2004, as reported by bradblog.com, the United States Computer Emergency Readiness Team released a Cyber Security Bulletin concerning Diebold’s GEMS central tabulator, stating that “a vulnerability exists due to an undocumented backdoor account, which could [allow] a local or remote authenticated user [to] modify votes.”
The Guardian later reported that Dean, the convicted felon, had programmed the GEMS central tabulator system and that it had “counted a third of the votes in the Bush-Kerry  election in 37 states.”
In 2006, computer researchers analyzed a Diebold AccuVote-TS and reported that the machine is “vulnerable to extremely serious attacks. For example . . . an attacker could . . . create malicious code that spreads automatically and silently from machine to machine during normal election activities—a voting-machine virus.”
The same year, Voters Unite compiled a very long “partial list of documented failures” involving election equipment from ES&S, Johnson County’s current vendor, which was founded by the man who later became president of Diebold’s election division.
In 2007, researchers discovered that “a voter or poll worker with a Palm Pilot and no more than a minute’s access to a voting machine could surreptitiously recalibrate the [ES&S iVotronic] touch-screen so that it would prevent voters from voting for specific candidates or cause the machine to secretly record a voter’s vote for a different candidate than the one the voter chose.” This would require “no password, and the attacker’s actions, the researchers say, would be indistinguishable from the normal behavior of a voter in front of a machine or of a poll worker starting up a machine in the morning.”
In 2009, ES&S acquired Diebold and assumed the Johnson County contract. It was thus on ES&S’s watch that Johnson County’s election system caused a lengthy delay uploading the results of the 2016 election, a disturbing prelude to last week’s debacle. (A similarly lengthy reporting delay occurred in 2012 in Sedgwick County, Kansas.) Because the AccuVote-TS has no software-independent paper record of voter intent, there was no way to directly confirm the legitimacy of that election.
As in Sedgwick County, Johnson County Election Commissioner Ronnie Metsker chose the ExpressVote, ES&S’s latest touchscreen. Due to this decision, the precinct totals were provided courtesy of unverifiable barcodes. A recount cannot reliably establish whether those precinct totals were legitimate because most voters cannot verify the accuracy of the machine-generated text on their summary cards.
But the machines at each precinct may also have produced paper-vote total reports when the polls closed. If so, those reports could at least show whether the reported totals accurately reflected the precinct totals (regardless of whether the precinct totals were themselves legitimate). TYT has submitted a public records request for any such vote total reports and has not yet received a substantive response. Kobach, however, has rejected a prior similar request by Dr. Beth Clarkson, a Kansas statistician and engineer, for Sedgwick County’s vote total records from the 2014 election. Clarkson lost in the district court and filed an appeal. Although the appeal was briefed and argued last year, the court has yet to issue a ruling.
Meanwhile, it seems that Johnson County has not yet paid for the ExpressVote machines. It remains to be seen whether the county will return or keep them. For now, like his predecessors, Metsker is standing by his vendor:
“We need to give them space to make the corrections and I am assured that they will find that and that we will all be happy with this equipment for years and years to come,” Metsker said.
Jennifer Cohn is an election-integrity advocate. TYT has asked her to investigate the transparency and verifiability of last week’s voting in Kansas and write a first-person chronicle of her efforts. You can follow her on Twitter here.