Election fixes: Officials exploring how to proceed after report says vendor violated law

More details about the fixes put in place on Election Day in November when voting technology failed to perform have come to light, and officials are asking the county commissioners to adopt a detailed list of mostly technical and financial suggestions about what to do in the future.

Election Systems & Software is still the county’s election vendor, and will be providing services in the municipal elections in May and November of this year, according to its current contract with the county. But whether the county will retain the company for future elections has not been determined.

The three-member election board, including newly elected County Clerk Trena McLaughlin, met on Friday for the first time since the Nov. 6 election, when voters were left waiting in lines for hours because electronic tablets used to check voters in wouldn’t connect to a county-wide server.

The election board is recommending that the three-member Board of Commissioners follow the recommendations by a state oversight board outlined in an investigative report released by the Secretary of State’s Office. The election board also added its own additional recommendations, including having ES & S purchase a sufficient number of e-pollbooks from a vendor selected by Johnson County for the 2019 primary and fall elections at no cost to the county.

Ultimately, it will be up to the commissioners whether to stick with the county’s long-time vendor or choose another. The election board is urging them to decide by Jan. 31 to either make changes to its contract with ES & S or select another vendor.

The commissioners have called a special meeting for Wednesday.

One of the key findings in the report was that election laws were broken when a fix for the voting stall was put in place.

The Voting System Technical Oversight Program report said that ES & S “performed” and “employed” a work-around that disconnected the tablets from the server entirely, which would have sped up the lines but is against the law, according to the Secretary of State’s Office. That would have made it possible for voters to cast more than one ballot at more than one location.

McLaughlin and election board attorney Dustin Huddleston said on Friday that the county did not take that step.

Rather, for about an hour, voters were checked in locally, meaning at the vote center where they were casting a ballot, but not in the county-wide system that would let other vote centers see that a resident had already cast a ballot, said Scott Henry, the county’s IT specialist. Once the system was working again, information on all voters who had cast ballots was uploaded and available at all the voting sites, he said.

McLaughlin and Huddleston also said the county did not break any laws. But neither McLaughlin nor Dustin Huddleston were involved in every conversation that took place on Election Day. Two election officials who were involved in those conversations say they were warned by the election board’s attorney, Steve Huddleston, that the work-around was risky.

Election board chairman Phil Barrow and former county clerk Sue Anne Misiniec said on Friday they knew that the work-around was risky, but it had to be done.

The words “against the law” were never used, Misiniec said.

“I think, when we had that conversation, Trena (McLaughlin) wasn’t standing in that area, and Dustin (Huddleston) wasn’t there at all,” Misiniec said.

“Steve Huddleston is the one who brought that to our attention and we, as an election board, decided to take the risk. What we were to understand is it (the work-around) possibly would allow someone, if they had that knowledge, to go to another site and vote again. But people wouldn’t know.”

At the election board meeting on Friday, retired doctor Dick Huber asked the board what they planned to do in the future to get voters through the lines more quickly, and why, if the board knew they were possibly breaking the law, they allowed it.

“We are aware that we have mammoth turnouts at some of these sites, and I can assure you that we are going to have them staffed and try to communicate better and let someone know when they need to go to another poll site,” Barrow said.

Huber asked again.

“Am I understanding it right that you knew there was a disconnect on Election Day?” he asked. “That they were disconnected from one site to another?”

“Yes, we were made aware of that,” Barrow said.

“And you were aware that that was illegal?” Huber asked.

“Yes, we were aware of that,” Barrow said.

“My question then to the election board is when you find out something is being done illegally…” Huber started to ask.

Barrow cut him off.

“We have to weigh our options, which is what we did,” Barrow said.

“But we weren’t told it was illegal, no,” McLaughlin said.

Barrow continued: “I think the attorney probably said it was. But we had no choice. What are you going to do when you’ve got 500 people in line? Are you going to say, ‘I’m sorry. We’ve got to close up. You can’t vote?’”

Henry, the county’s IT specialist, said he didn’t know that the fix would violate election law, but he was aware, as was everyone involved, that the fix posed a risk, he said.

“What are the chances that when we’re doing this little work-around that somebody’s going to wait in line for two hours and then go down the road and wait another two hours? It was such an improbability that it made what to do a really clear answer,” Henry said.

Election officials were presented with the options about 11 a.m. on Election Day, decided to go with the partial disconnect about noon, and was able to reconnect to the cloud server by 1 p.m., Henry said.

Jeremy Burton, the state’s sales representative for ES & S, attended Friday’s election board meeting to apologize publicly.

“We let you down, and I apologize for that, and ES&S wants to make this right. We want to start to rebuild trust. We want to do everything we can to turn this around and be your partner in the future. But we recognize we failed you tremendously and we take sole responsibility for that,” Burton said.

“This isn’t just business for me. It’s also personal. I live in Johnson County, and have been working with you guys for seven years now … I take this personally. When we let the voters of Johnson County down, we let my neighbors down, so I’m upset as well. This is not who we are — ES & S. We are better than this, and I believe we’ll prove to you again that we are better than this.”

He would not answer additional questions when contacted after the meeting.

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The county election board is recommending that the county commissioners either enter into a new agreement with ES & S that is subject to the following changes, or choose another vendor that also meets VSTOP’s recommendations. Whichever decision the commissioners make, the election board urges them to make it and enter into an agreement by Jan. 31.

Here is a list of VSTOP recommendations:

Provide appropriate documentation of completed planning and load testing to mitigate the chance of similar future problems in Johnson County concerning e-pollbooks.

E-pollbooks load testing results should be provided to the clerk 60 days before the municipal primary.

E-pollbooks testing and simulation procedures should be reviewed to ensure that the load test results are closely aligned with the actual Election Day results.

Provide e-pollbooks tabletop exercises which play out a number of scenarios and solutions for Election Day equipment-related crises which should include fail-safe options and Johnson County personnel involved in elections and involve an onsite ES & S team as well as a complementary system support team.

Provide training to Johnson County election personnel on how to effectively resolve e-pollbooks problems that occurred on Election Day or any other type of catastrophic failure.

Provide strategies for catastrophic failures and crises management to Johnson County.

Provide a troubleshooting team, which should include representatives from the manufacturer of the e-pollbooks, to be present in Johnson County during the spring 2019 primary, the fall 2019 general election. This on-site team should be augmented by a e-pollbooks complementary system support team.

Revise and improve anomaly reporting processes so that anomalies and problems are reported in writing to Indiana Secretary of State and Johnson County within the legally required 48-hour period

Provide revised documentation production and retention processes and policies so that such internal reports are available to the Secretary of State and Johnson County in case of future problems and investigations.

Comply with state and federal guidelines concerning the 22-month retention period of election-related materials.

ES & S has also agreed to the following if the company is allowed to continue its contract with Johnson County:

Provide VSTOP and Johnson County with a full accounting of the technical issue and the corrective actions being taken to ensure that this does not occur in future election.

Eliminate total reliance on third-party partners for proper e-pollbook system functionality.

Credit Johnson County its 2018 CentralPoint software license fee.

Provide (at no charge) replacement e-pollbook stands that will provide a better experience in all future elections and that are compatible with your current e-pollbooks.

ES & S will provide (at no charge) 100 additional iVoltronic voting machines to replace the part of the county’s current voting machine inventory that is beyond repair due to age.

The election board would also like these amendments to be included in a new contract with ES & S if the county decides to stick with the vendor:

Purchase sufficient number of e-pollbooks from a vendor selected by Johnson County for the 2019 primary and fall elections at no cost to Johnson County.

Provide, at no cost to Johnson County, support services and testing for the new e-pollbooks for the 2019 primary and fall elections to the satisfaction of Johnson County.

Credit Johnson County $53,709.43 for support services.

Credit Johnson County its 2019 CentralPoint software license fee.

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WHAT: Johnson County Board of Commissioners special meeting

WHEN: 9:30 a.m. Wednesday

WHERE: Johnson County Courthouse Annex North, hearing room, floor 2

WHY: To discuss actions regarding the county’s election vendor