Investigation: County election vendor violated state law, says problem will not be fixed by May primary

On Election Day in November, the county’s election vendor had poll workers disable a system that syncs the 20 vote centers to make sure voters do not cast more than one ballot, an investigation has revealed.

The fix, which is a violation of state law, allowed poll workers to check in voters locally at each site where electronic poll books had slowed or stopped working, which is what was causing the hold up, without logging the voter into the shared cloud system, according to an investigation ordered by the Indiana Secretary of State into what happened in Johnson County on Election Day.

The work-around was against the law, according to the Voting System Technical Oversight Program (VSTOP) at Ball State University, which conducted the investigation, and the Secretary of State’s Office, which oversees all elections in the state.

Election Systems and Software, the vendor who was responsible for the problems, under-estimated the server capacity needed on Election Day. The cost of adding more resources was at least one reason, the investigation found.

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"The problems which occurred in Johnson County was a source of negative publicity for the county," the report said. "In addition to embarrassment, the more important impact was on voters who did not understand what was occurring and this likely created voter anxiety, impacted confidence in the electoral process, and probably discouraged voters from continuing to wait to cast a ballot. The work around offered on Election Day was not in compliance with Indiana Election Code."

The Secretary of State’s Office ordered an investigation on Dec. 7 into what happened on Nov. 6 in Johnson County, which left some voters waiting in line for hours and others not voting at all.

"In Johnson County, the problem caused stress, confusion and a crisis in confidence in ES & S by county election officials. The negative election publicity may have also impacted voter confidence and was embarrassing for the county."

Now the county has to decide what, if any, action to take. The decision is up to the county’s three elected commissioners.

“Clearly what happened is unacceptable and we are working to resolve the issue as quickly as possible,” Johnson County Clerk Trena McLaughlin said. The county clerk administers all elections in the county, but McLaughlin did not take office until Jan. 1.

On Monday morning, the commissioners and three-member election board will meet in executive session, which means it is closed to the public, to discuss possibly filing a lawsuit against ES & S, the county’s decades-long vendor, who failed to warn them and prepare them for potential problems. The election board will meet publicly at 1:30 p.m. on Friday to discuss the preliminary report, McLaughlin said.

What this means for the May municipal election is unclear.

ES & S told investigators the problem will likely not be solved in time for the May primary, the report said.

"The situation which occurred in Johnson (County) is unacceptable for any Indiana electronic poll book vendor. The responsibility for what occurred rests on the shoulders of ES & S," the report said.

"There is no established timeline of an alternate solution at this time. If/when pursued, it would benefit all customers, not just Johnson County, but will likely not be in place for the 2019 municipal primary," ES & S told VSTOP.

The Voting System Technical Oversight Program, which the state uses to certify all election equipment used in Indiana counties, outlined multiple significant problems, concerns and violations of federal or state election laws and guidelines in its report.

Among the findings:
<li>Problems with voting in Johnson County in May 2018 and in early voting in the fall in Howard County were not reported to VSTOP, which is required.</li>
<li>Other Indiana counties use ES &amp;amp; S and had problems during 2018 voting. VSTOP was not informed until inquiring during the Johnson County investigation, which is a violation of Indiana law. The other counties are Carroll, Brown, Howard, Elkhart, Hancock, Monroe and Porter counties.</li>
<li>An ES &amp;amp; S official had learned about the potential for a problem in Johnson County on Election Day during early voting, but it had been determined that it was likely too late to implement a fix. The county was not informed of the issue.</li>
<li>Logs that would show electronic activity, diagnostics, access and performance on Election Day were not saved by ES &amp;amp; S or Microsoft. State and federal guidelines say that all election-related materials must be saved for 22 months.</li>
<li>Results from tests during the May primary were not saved. ES &amp;amp; S told the investigators that the company "is certain load tests were performed prior to the May primary, however those results are not retained."</li>
<li>Server records show an abnormally large number of error codes on Election Day in November, much higher than from the primary election.</li>
<li>The Election Day error, the investigation determined, was with the vendor’s cloud service, Microsoft Azure Web Application Firewall. ES &amp;amp; S made the switch from the Amazon Web Service, or AWS, in October 2017, and the county experienced similar problems in both the May primary and the November general elections. VSTOP had not been informed, as required, of this change in the cloud service.</li>
The county knew about the problem during the primary, former county clerk Sue Ann Misiniec has said, but they were assured it would not happen again.

McLaughlin said she received a call on Thursday from Jeremy Burton, the county’s long-time sales representative for ES &amp;amp; S. He apologized again and offered to work with Johnson County in any way he can to help "make it right for us," McLaughlin said.

“They are accepting full responsibility for what happened at this point,” she said.