With No Guarantee Of Its Future Certification, County Pays $32M For Voting System

Just as it did more than a decade-and-a-half ago, the San Bernardino County Board of Supervisors this week risked a substantial amount of taxpayer money on an electronic voting system, the continued viability of which is subject to the capricious continuing approval of the California Secretary of State’s office.
In 2004, that gamble ended in chaos and the essential squandering of $13.9 million. After the Sequoia Touchscreen Voting System was acquired by the county at the end of 2003, it was utilized in one election cycle. Thereafter, at the insistence of the state, which had previously approved it, the computerized voting system was virtually discontinued, and for a decade-and-a-half the county’s voters returned to using a primitive but relatively foolproof and verifiable manual voting system. That faux pas with the Sequoia system was attributable to the indecision and misdirection from the California Secretary of State’s office, then headed by Kevin Shelley, after Shelley and other state officials made conflicting, confusing and ultimately contradictory demands that county election offices up and down the state adopt direct recording electronic voting machines. Nevertheless, blame for what occurred was locally laid at the feet of then-San Bernardino County Registrar of Voters Scott Konopasek and his second-in-command, Assistant Registrar of Voters Steve Trout, who were scapegoated by the board of supervisors and fired less than a month after the 2004 election.
In the current go-round, San Bernardino County Registrar of Voters Bob Page, the principal management analyst in County Chief Executive Officer Gary McBride’s office who was abruptly saddled with what was then considered to be the temporary assignment of heading the county’s elections office when the board of supervisors last summer without any explanation of its action 109 days before the November 2018 election terminated Mike Scarpello as registrar, has now found himself in the unenviable quandary that was visited upon Konopasek in 1983 and 1984. In this case, however, Page, without any more assurance than Konopasek had, is gambling not with $14 million but rather more than twice that, just under $32 million.
On February 27 of this year, California Secretary of State Alex Padilla, in a fashion that was reminiscent of Shelley’s 2003 mandate, issued an edict calling for voting officials throughout the state to transition to voting systems that are in compliance with the California Voting System Standards adopted in 2015, and that they do so in time to conduct polling in conjunction with the March 3, 2020 California Primary election. Padilla insisted that the revamping take place in order “to strengthen the security of California’s election infrastructure,” which was again virtually indistinguishable from the rationale that Shelley had used in strong-arming counties to abide by his order. Further emulating Shelley’s action, Padilla initiated the process for withdrawing certification or conditional approval of voting systems that were not tested or certified under the most recent state security standards.
Padilla tentatively signaled that three systems would be acceptable: Dominion Voting Inc.’s Democracy Suite 5.2, the County of Los Angeles’ Voting Solutions for All People Tally 1.0 and Hart Intercivic’s Verity Voting 3.0.1. At the same time other companies were working toward getting their systems qualified. Padilla also gave indication he would consider granting waivers on the requirement until December 2020 to those counties which could show they are unable to meet the earlier 2020 deadline if they were to request an extension by April 5, 2019, conditional upon them then making a bona fide hardship demonstration. San Bernardino County applied for such an extension.
Nevertheless, perhaps self conscious that San Bernardino County is yet using a paper ballot system considered by many to be the most antiquated system in the state as well as concerned that Padilla might not grant San Bernardino County the extension, Page damned the torpedoes and pushed ahead with finding a system the county could work with.
In a report to the board of supervisors dated July 9, Page said that his department received proposals from Dominion Voting Systems and Hart InterCivic. Dominion said its system would be available for an upfront purchase price of $9,575,829, together with an ongoing maintenance cost of $814,670 annually, according to Page, while Hart InterCivic’s system was available for $10,792,279 and an annual upkeep charge of $1,126,598.
“An evaluation team facilitated by the purchasing department, including staff from the department and the information services department evaluated the proposals based on qualifications and experience, technical review, cost, references, and system demonstration,” Page wrote. “The evaluation committee recommended Dominion for a contract based on the overall best value to the county. Hart InterCivic, Inc. was notified of the recommended award to Dominion by e-mail on May 23, 2019, and did not appeal the recommended award. The [registrar of voters] department and [the] purchasing [department] negotiated a contract with Dominion that resulted in a higher initial purchase cost than Dominion’s cost proposal amount of $9,575,829. During the evaluation process, the committee reviewed the cost of Dominion and Hart equipment with similar functionality. Once the committee recommended [making the] award to Dominion, the department requested the purchase of an additional type of proposed equipment and increased quantities of evaluated equipment to better meet the department’s needs. The department recommends the purchase of eight Dominion high speed ballot scanners; Hart InterCivic did not offer a comparable scanner. The recommended contract also increases the not-to-exceed amount of system servers, polling place ballot scanners, and workstations for processing ballots, as well as adds costs for delivery, taxes and a contingency. The recommended contract includes a non-standard provision that limits Dominion’s liability, in the aggregate, to the total dollar amount of the contract excluding Dominion’s indemnification obligations. The county standard contract terms do not include a limitation of liability. This liability cap provision is commonly requested by software vendors.”
In a poetic stroke of irony or coincidence, the contract with Dominion is to last for 15 years, which is equal to the amount of time that San Bernardino County went without a computerized voting system as a consequence of the fiasco with Sequoia and the California Secretary of State’s office.
“The total not-to-exceed cost of the recommended contract with Dominion Voting Systems, Inc. consists of $15,880,164 in one-time costs in Year 1 and ongoing costs totaling $16,058,881 over the term of the Contract, which reflects $1.1 million annually, subject to a 3% increase per year beginning in year 8,” according to Page’s report.
The $31.93 million cited does not represent the total cost of making the transition.
“Ongoing contract costs consist of annual licensing, extended warranties, and support services for the new voting system, including an allowable inflation increase of costs of no more [than] 3% each year beginning year 8,” Page’s report states. “Additionally, the department and the information services department will determine the level of information services department support required to assist the department with maintenance of the Dominion system and develop an ongoing cost estimate for information services department support. The total Dominion contract cost constitutes a significant portion of the voting system replacement project, but not the entire project. The approved one-time funding for the project will also be expended on additional implementation costs, including those incurred to purchase new ballot-on-demand printers, mail ballot sorters/scanners, electronic poll books, supporting workstation hardware, and furniture/fixtures for workstations and voting equipment storage and delivery. Execution of the Dominion contract will also result in additional ongoing costs that will have to be accounted for in future recommended department budgets, including lease and utility costs for new warehouse space to store and stage the voting equipment.”
Page indicated the State of California was amenable to covering a portion, roughly 18.4 percent, of the cost of acquiring and maintaining the Dominion Voting System hardware and software. There was no state guarantee of the replacement cost if the system proved inadequate, however.
“The county entered into a revenue agreement with the Secretary of State [on] March 19, 2019 that will reimburse the county up to $5.9 million in one-time expenditures related to the purchase and implementation of the new voting system,” Page’s report states. A further state subsidy is possible but not assured, Page said. “The adopted 2019-20 state budget includes more funding for counties to update voting systems, which could provide an additional $2.95 million to the county for one-time costs of this voting system replacement project,” according to the report. “A potential amendment to the revenue agreement with the Secretary of State would be presented to the board at a future date.”
Neither Page nor anyone at the county, however, was willing to joust with Padilla to get an ironclad assurance that the Secretary of State’s office would not withdraw its approval of Dominion’s Democracy Suite system. Page and those officials know such an eventuality is possible, and that without an agreement in writing containing an indemnification clause, the county is putting the $32 million at risk. In this way, Page is following in Konopasek’s footsteps.
In 2003, Konopasek was faced with a mandate, articulated by both the State of California and then-Secretary of State Kevin Shelley, that San Bernardino County upgrade its voting system. Shelley said any of three systems available on the market at that time, touchscreen systems manufactured by Maximus and Hart Intercivic, Sequoia Voting Systems and Diebold Voting Systems, would meet his requirements. After carrying out his own analysis, Konopasek recommended that the county purchase, at what ultimately turned out to be a cost of $13.9 million, a touchscreen voting system manufactured by Sequoia Voting Systems. The county had committed to using that system in the 2004 Primary, which was held that year in California in March. Prior to that election, however, Shelley withdrew his certification of electronic voting machines throughout the state because, he said, they had uncertified software upgrades which could be vulnerable to tampering. Konopasek confidently went ahead with using the newly-purchased machines in that year’s elections, asserting they had been previously certified. The county backed Konopasek, going to court to get a ruling that the county could use the Sequoia machines. Nevertheless, less than two weeks after the November 2004 election, Konopasek and Steve Trout, Konopasek’s right-hand man, were relieved of their positions as the county’s registrar of voters and assistant registrar of voters, respectively.
It is of historic note that Shelley did not serve out his entire four-year term as California Secretary of State, announcing his resignation after two-years and one month in office in February 2005, with his resignation becoming effective the following month.
Page in March told the Sentinel he would not venture a guess as to whether or not Secretary of State Padilla can be counted upon to stand by his current certifications of the voting machines he has deemed acceptable for use in California elections.
“Questions about Padilla and his goals should be directed to the Secretary of State,” said Page.
Efforts by the Sentinel to get a statement from Padilla to the effect that he would not renege on his certification of voting machines once they were given were unsuccessful.
If Padilla does go crosswise on the county, the outcome for Page, one of the foremost up-and-coming prospects in county government’s executive suite, would not be good. On May 3, the board of supervisors appointed Page to the position of registrar of voters, removing the qualifiers acting or interim from his title. The title, however, will afford Page no more protection than the lines of crosswalk provide to a pedestrian about to be leveled by an oncoming bus. Members of the board of supervisors over the last two decades have proven very sensitive about any problems whatsoever surfacing at the county’s elections office and have shown no hesitancy to hold the registrar of voters responsible for any snafus, even when there has been a suggestion that some level of responsibility for those foul-ups might lie with the board itself.
In the odd-year election held in November 2001, a programming error with the computer used to scan and record the votes on the punch card ballots then in use resulted in the county initially declaring as winners 13 candidates who were ultimately later determined to have lost in that year’s election. An election office worker was initially being blamed for that miscue, but ultimately, the then-registrar, Ingrid Gonzales, was let go by the board of supervisors, amid calls for ending the county’s use of paper ballots. The board eventually settled on hiring as her replacement Konopasek, who had held an election office post in Washington State. Konopasek’s unfortunate experience with the Sequoia touch screen voting system doomed him after two years in the position. Subsequently, Konopasek, who has now gone on to become the assistant registrar of voters in Contra Costa County, said that ballot stuffing was taking place in San Bernardino County.
Konopasek was replaced on a temporary basis by Donna Manning, a top tier assistant in the registrar’s office. Manning, perhaps wary of what had happened to the two previous registrars, balked at moving into the role of the full-fledged registrar. In 2007, Kari Verjil, who had been the registrar of voters in Riverside County, came to San Bernardino County to serve as registrar of voters. She was in place four years. Sensing displeasure from the board over her suggestion that the Sequoia system could be augmented with software patches to eliminate its vulnerability and transition the county to a digitized voting system, Verjil elected to return to Riverside County in 2011 rather than raise further hackles with the board of supervisors and risk getting fired. Scarpello was brought in to replace her.
Like Verjil, Scarpello recognized that the State of California was not likely to long tolerate the county’s use of the simpler methodology for voting the county had adopted, which involved oversized cardboard ballots, which voters mark with a black ink pen. Scarpello, remarking that the California Secretary of State eventually recertified the Sequoia system conditional upon the incorporation of software patches intended to enhance its security and protect it from cyber attacks and hacking, had suggested that the county explore such a solution. The board, however, was unwilling to make the $2 million investment to bring that about, and had consented to the Sequoia touch screen machines in San Bernardino County being used only in the context of having one at each polling place for use by handicapped individuals.
Based upon Scarpello’s effort to usher the county toward use of a digital system, which now in the light of Padilla’s February 27 mandate appears prescient, and some other issues the board has not disclosed, Scarpello was shown the door last summer, a year ago next week.
Though it is now clear that Page is being pressured, if not outright stampeded, by the board of supervisors to just hurry up and get it over with and comply with Padilla’s mandate, that consideration will cut him no slack if Padilla reverses course and decertifies the Dominion system. It goes without saying that in the face of such an eventuality Page is to fall on his own sword so the board members are not seen as having been cavalier with the expenditure of tax dollars, and County Chief Executive Officer Gary McBride will send Assistant County Administrative Officer Leonard Hernandez to Page’s office at 777 East Rialto Avenue in San Bernardino to personally hand him his pink slip.
David Wert, the county’s official spokesman, this week said of the decision to go with the Dominion system, “The contract requires Dominion to provide the county with a fully certified voting system throughout the term of the contract. If during the term of the contract any portion of Dominion’s voting system were to become decertified, there are provisions for dispute resolution. Additionally, the contract requires Dominion to provide their most current certified system software; updates do not cost extra. The contract also requires Dominion to refresh computer hardware at the county’s request one time during the contract period at no additional cost to the county. Finally, the contract includes a provision for the county to sell back and swap out equipment used at voting sites during the first five years for a percentage of the original purchase price.”
Wert further said, “You should note that the agreement with Dominion is a not-to-exceed contract; Dominion is not guaranteed $31,939,045. The potential maximum amount that could be spent in the first year for hardware, software, training, support, shipping and sales tax is $15,880,164, which includes a contingency amount of $2,903,550 (10% of the contract) that might never be spent. The registrar of voters team will meet with Dominion over the next two weeks to determine the quantity of equipment that will be ordered for delivery prior to the March 2020 Presidential Primary Election.”
As to the county not pinning Padilla down to prevent a recurrence of what happened when Kevin Shelley was California Secretary of State, Wert said, “I don’t believe secretaries of state would be able to make such a guarantee. It seems that would put them in the position of allowing use of a system they have determined to be unsuitable. Perhaps you saw in the agenda item that the Secretary of State is reimbursing the county $5.9 million and may provide an additional $2.95 million.”
Wert added, “Also, I have no idea where you got the idea that Konopasek and Trout’s departures had anything to do with the Sequoia decertification. There would have been no conceivable need or motive to ‘scapegoat’ anyone over the Sequoia equipment situation as it was very clear to everyone what had happened, as you outlined.”
-Mark Gutglueck

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