No move to replace expensive system of no-bid contracts.
Editor’s note: This coverage is made possible through Votebeat, a nonpartisan reporting project covering local election integrity and voting access. The article is available for reprint under the terms of Votebeat’s republishing policy.
In 2009, New Jersey’s Department of the Public Advocate published a startling report detailing how the makers of voting machines had gamed the state’s patchwork electoral system for profit.
The report showed how counties across the state engaged with a handful of powerful companies, such as Sequoia Voting Systems, in one-sided contracts that soaked taxpayers with exorbitant fees for items like long-term service and software licensing.
There were “unconscionably” short hardware warranties and liability disclaimers that exposed counties to legal damages if machine errors fouled up elections.
“Ten years later, not much has changed,” Flavio Komuves, a former state official who helped write the report, told New Jersey Spotlight News in a recent interview. “Even at this point, I don’t see any wholesale movement toward a better system in the near future.”
As virtually every other state in America has embraced substantial reform, most New Jersey counties are still clinging to touch-screen voting machines that rely on 1980s technology proven to be bug-prone and open to hacking.
Why does New Jersey, so proudly progressive in so many areas, lag the nation in such a fundamental chore of good government: counting votes?
Do companies take advantage of home rule in NJ?
Politicians and state bureaucrats routinely offer answers that cite the expense, saying that it would cost $100 million, or more, to revamp the state’s fleet of some 11,000 voting machines. But interviews with reform groups and elections officials, as well as a review of state records, show that the answer is less about the cost of buying better machines than about the power of voting machine makers to take advantage of New Jersey’s home-rule political system.
In the 2009 study, for example, the Public Advocate found that taxpayers could benefit substantially if counties negotiated collectively with machine makers, or at least sought standard contract terms for minimum warranties, software licenses and other items. The report suggested a model contract and recommended that counties band together under a central purchasing office.
“We could have a uniform system of voting machine standards and contracts, and a state purchaser who gets everything cheaper,” Komuves said. “But this is New Jersey. Everything is local. You end up with a lot of expensive, no-bid contracts.”
Renée Steinhagen, a public interest lawyer who is executive director of the nonprofit advocacy group New Jersey Appleseed, traces the roots of New Jersey’s voting dysfunction straight to what she said is a “self-serving” political class that buy the machines, run the elections and even design the ballots.
Protecting ‘narrow, parochial interests’
“We’ve got a deep history in this state,” she said. “Local political parties control how we vote, where we vote and who we vote for. County election officials run as political candidates. They all do what they need to do to protect narrow, parochial interests.”
Using new machines based on paper ballots marked directly by voters, Steinhagen argues, would bring a “scary” level of accountability that party bosses may not be ready for.
Throughout New Jersey, as in most states, candidates for primary elections are reviewed by local and county political chairs who eventually endorse and campaign for the office seekers they see as most fit. But unlike other states, Jersey allows county political organizations to design primary ballots to give preferential placement to their favorites.
Such “county-line” candidates almost always win over the unendorsed also-rans who end up being listed in a corner of the ballot. Efforts to reform this system have gone nowhere. Reformers says a paper ballot like that used elsewhere — with orderly rows and columns of candidates grouped together — would open the system to newcomers unbeholden to party bosses.
Who’s afraid of paper ballots?
“The paper ballot helps fix all these abuses,” Steinhagen said. “The fact that we haven’t seen more paper ballots shows that local party leaders find reform scary. The voting machine makers know this.”
The voting machine makers have worked to cement their power in New Jersey.
Since 2016, the two leading machine makers, Omaha-based ES&S and Dominion Voting Systems of Canada, the firm formerly known as Sequoia, have spent more than $300,000 to lobby Trenton officials and oppose voting legislation such as the New Jersey Voting Security Act, which promoted the use of paper ballots.
The firms have hired some of New Jersey’s top lobby groups, including Public Strategies Impact and the 1868 Public Affairs firm, which until 2019 featured Ocean County Republican leader George Gilmore as a partner. Gilmore was listed as a lobbyist for Dominion from February 2016 to January 2019, according to state records.
Gilmore, who in 2019 was convicted on federal tax evasion charges and sentenced to a year in prison, was a close ally of former Gov. Chris Christie and known for his strong influence over Ocean County government.
Ocean County’s fleet of more than 850 Dominion voting machines is among the oldest in the state, although many other counties also use similar vintage models made by the firm. Reformers have pointed out that New Jersey has historically represented a large share of Dominion’s business, and the firm has lobbied hard to maintain the status quo here.
‘…depends on influencing state and local officials’
“The voting machine companies have a business model that depends on influencing state and local officials,” said Princeton University computer science professor Andrew Appel, a voting security expert who has studied New Jersey’s machine system for some 15 years. “They will do what they have to keep up the power they have.”
Another machine firm with a long history in New Jersey, ES&S, was fined $2.9 million in 2019 for failing to disclose lobbying activity to influence Philadelphia officials who were considering a $30 million voting machine contract with the firm. An investigation by the city controller found that ES&S had spent $400,000 to wine and dine city officials over a period of four years.
ES&S eventually was awarded the Philadelphia contract over the objections of watchdog groups and some city officials who said the machines were less safe than other models.
In 2019, ES&S also provided new voting machines to Union County, at a cost of more than $5 million.
Criticism of new Union County machines
Critics say the Union County touch-screen machines, which electronically produce a paper receipt of voters’ choices, are far from ideal because the paper record is not “hand-marked” by the voter. They fear that other counties will follow Union’s lead.
“There is a real herd mentality in the state when it comes to these decisions,” Steinhagen said. “Everybody wants to follow the leader and get the same kind of new toy.”
Union County officials say that despite some early glitches with the new machines in a 2018 pilot run, they have performed well. They say ES&S has proven to be a dependable and responsive vendor, and say their long-term contract with the firm is vital.
“Anything we need, they are right there,” said Nicole DiRado, administrator of the county elections board. “I’ve got everyone’s cell number.”
Neither ES&S nor Dominion returned calls seeking comment. The firms are among a set of just four voting machine companies certified to sell voting machines in New Jersey. The situation is similar in most other states, records show.
“These firms have power because they are the only game in town,” said Brendan Gill, an adviser to Gov. Phil Murphy who is also a member of the Essex County freeholder board. “It’s hard to go in another direction.”
Hard to change NJ’s political culture?
Three years ago, Gill led a successful effort to replace Essex County’s voting machines with the kind of inexpensive equipment that is not offered by the major machine firms. Now, Essex is the first county in the state where voters mark their choices directly on paper ballots and then scan them into simple optical scanners, which record the tallies.
The system costs about one-third as much as the latest machines by the major makers that use touch screens to produce a paper record. Voting security experts say those touch-screen machines are flawed because voters often do not read the paper record — a grocery-store-like receipt of paper with small print and bar codes.
“We bit the bullet and got it done,” Gill said.
But New Jersey’s entrenched system of home political rule, Gill said, could very well stymie efforts in other counties even as the state moves into an era when voters demand more security and greater access to the ballot via changes like early in-person voting.
“In the end, the voting system here reflects the political culture of New Jersey,” Gill said. “We know how hard it is to change that.”
Penny Venetis, a professor and director of the International Human Rights Clinic at Rutgers Law School, has been working for almost 20 years to safeguard the New Jersey ballot and promote better voting systems.
Landmark lawsuit came up short
In 2004, she filed a landmark lawsuit in Superior Court seeking to compel the state to replace machines that, even then, were widely recognized as flawed and unreliable. New York state, as far back as the late 1980s, cited safety concerns in rejecting use of the very same voting machines that still dominate in New Jersey.
But after a legal fight that lasted more than a decade, through the administrations of four governors, the effort of Venetis and a host of reformers and experts who worked with her came up short. Although the case exposed many security flaws in the state’s system, the court declined to order the state to make fundamental change.
“I thought it was going to be the easiest lawsuit I ever filed. I thought it would be over in two weeks,” Venetis told New Jersey Spotlight News in a recent interview. “All the evidence, all the science, was on our side: Voting machines in New Jersey failed on every count.”
“Why do we keep resisting change in this state? I’ve been racking my brain about that for a very long time.”