"At the close of the polls, they realized they had a big problem," Skoglund said. "That's when they realized they had some races that had zero votes in them. And that's unlikely in any contest but especially when you have straight party voting. You press one button and vote for all Democrats, for example. You expect that some people showed up and did that [voted straight party tickets]."
The absence of any recorded votes occurred in a half-dozen races where more than one political party nominates the same candidate -- such as for judge.
"The only clue we have to go on so far is that every race where it happened and the only races where it happened were races where a candidate was cross-filed," he said. "That means that a candidate was both on the ballot as a Democrat and as a Republican. You are allowed to do that in Pennsylvania."
On election night, county officials scrambled to retrieve all of the printed ballot summary cards from the polls and brought them to one location. There they used other ES&S high-speed scanners (including some brought in from other counties and nearby New Jersey) to recount everything. They finished recounting before sunrise the next day. Since then, there has been much heat and little light.
Northampton County Executive Lamont McClure was unsparing in his criticism of ES&S -- after spending several million dollars on the new machinery -- starting with a press conference after being up all night. County officials have been waiting for ES&S to tell them why their wares failed. Some county council members and citizens have demanded refunds, although other local officials have defended ES&S and said the problems would be identified and solved.
McClure has not responded to Voting Booth's request for comment.
"We don't know" what happened, said Skoglund, "but my guess is it is a problem with the ES&S software. ES&S software did not handle that case correctly. The EAC [U.S. Election Assistance Commission, which certifies voting systems] didn't test for it. The Department of State in Pennsylvania, they told someone I know that they didn't test for it. And we know that Northampton didn't test for it. So this case, where someone can be cross-filed, seems to have never been tested anywhere along the line."
Skoglund and others have called on the state to decertify the ExpressVote XLmeaning it could not be used in 2020. On November 25, the Green Party filed a motion in federal court calling for that remedy, citing a settlement with the state following its incomplete and fraught 2016 presidential recount. The crux of the Green Party's argument is the ES&S device uses barcode printouts to record and count votes, which cannot be readand thus verifiedby voters.
"This [ES&S] voting system -- this all-in-one hybrid -- is really problematic," said Skoglund. "It is very questionable whether the touch screen registers the right vote. It's questionable whether it prints the right thing. It's questionable whether voters look at that and verify that it says the right thing before casting it. And now it's questionable whether it counts those ballots correctly."
Flawed Audits Too?
The Green Party's legal challenge is part of a wider campaign by election transparency activists to use human-marked paper ballots as a basis for more trustable and verifiable elections -- especially if post-Election Day challenges and recounts occur. However, the voting machine industry increasingly has pushed computer-printed ballot summaries as the new official election record. A computer printout removes the human element from ballot records, just as it removes the possibility for juries -- in this case, local boards in challenges and recounts -- to assess voter intent if ballots are sloppily marked (or misread by scanners).
States like Pennsylvania have tried to counter such criticisms by instituting a new form of vote-counting audit before the results are officially certified. Progressive election groups including Verified Voting, Common Cause and the Brennan Center at New York University Law School have promoted that process, called a risk-limiting audit (RLA). It uses a statistical method to estimate with 95 percent accuracy that the initially reported results are correct.
But while the state has recently touted its use of RLAs in the November 2019 election, local election integrity activists said that exercise in Philadelphia was a sham because the city maintained loose controls over its voted ballots.
As Rich Garella of Protect Our Vote Philly documented in a November 20 report that included photos that he took of unguarded and easily accessible boxes of ballots, one cannot estimate statistical accuracy if the inventory is incomplete, sloppy or questionable. (Garella literally walked into rooms with thousands of unvoted ballots in boxes near unlocked doors left piled on desks.)
"The Philadelphia Board of Elections failed to control blank ballot card inventory, failed to secure voting equipment and failed to guarantee the security of the voted ballots in the November 5 election," his report began. "Therefore Thursday's "risk-limiting audit" will not be able to confirm that the election results correctly reflect the intent of the voters."
In other words, whether at the starting line of Election Day -- opening the polls for people headed to work -- or with the performance of new machines used by voters, or with the counting at the finish line in complex races, or in the results-auditing process, there are a series of new problems tied to new devices and protocols.
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