Lawyers for the nation's largest manufacturer of electronic voting equipment are trying to squash legitimate criticism of their products—including one machine that was responsible for a 26,000-vote miscount and threw a one local election in Pennsylvania into doubt.
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 demanding that it "retract and correct" its criticism of the ES&S ExpressVote XL touch-screen voting machines—especially the group's effort to persuade the New York State Board of Election from certifying the machines for using in elections there. The state board is scheduled to take up the matter today (Jan. 28).
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 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.
Princeton University Professor of Computer Science Andrew Appel says 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." Appel was co-author of an authoritative study of electronic voting that was published last year.
ES&S previously defended their litigious approach, claiming they sue in order to keep competitors honest. But the company has a history of legally threatening 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 says 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."
None of which worked so well on Election Day 2019, when brand 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 received 26,142 votes and was the winner.
"The touch screens on these new machines are garbage," Paul Saunders, a judge of elections in Hanover Township, emailed the county less than an hour after voting began that day, citing difficulties voters were having.
Following the problematic Pennsylvania election, a joint news conference was held where ES&S acknowledged responsibility for the issues. ES&S Senior Vice President of Product Development Adam Carbullido blamed "human error" and 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."
The 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."
However, 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 also imply that other states certifying the machines is confirmation they are safe and secure claiming "ES&S's voting systems, has 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 University of South Carolina Computer Science Prof. Duncan Buell tried sharing his knowledge of the state's problematic history with ES&S.
Dr. Buell's concerns came 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 Dr. Buell was bumped from the agenda. South Carolina proceeded to purchase $51 million worth of new ES&S machines ahead of the 2020 election without hearing his 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-led 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."