Philly Controller: Probe reveals ‘serious flaws’ in voting machine procurement

City Controller Rebecca Rhynhart speaks during a press conference on Wednesday, Sept. 25. — (Philadelphia Tribune photo by Michael D'Onofrio)

By Michael D’Onofrio

PHILADELPHIA — A Nebraska-based voting machine company spent six years and more than $425,000 lobbying city officials before it was awarded a $29 million contract.

City Controller Rebecca Rhynhart said her office’s investigation of the city’s voting machine procurement process revealed “serious flaws.”

“This process was not done right,” Rhynart said. “This process was opaque, predisposed toward one vendor and raised conflict of interest concerns.”

The investigation revealed that City Commissioner Chairwoman Lisa Deeley and City Commissioner Al Schmidt, the only members to cast votes to award the contract, had benefited from campaign contributions from Election Systems & Software LLC (ES&S). City Commissioner Anthony Clarke did not vote on the contract.

Rhynhart said Deeley and Schmidt should have recused themselves from the vote, but she found no criminal wrongdoing by ES&S or the commissioners. Deeley, a Democrat, and Schmidt, a Republican, stepped down from the Board of Elections after the vote because they are seeking re-election in November.

ES&S has delivered 3,700 ExpressVote XL voting machines to the city in preparation for the November election. Last week, Rhynhart released more than $6 million in payments that the city had withheld from ES&S during the investigation.

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Katina Granger, a spokeswoman for ES&S, defended the company’s contract in an email, saying the process was documented. She reiterated that the company’s omission of its lobbying efforts was based on a mistaken interpretation of the city’s disclosure laws.

“We appreciate the city’s thorough review of this process and are eager to continue with implementation of the city’s new voting equipment that will be in place for the November 2019 election,” Granger said.

Deeley pushed back against allegations of conflicts of interest raised in the investigation.

“There was no issue with my voting for this voting system,” she said in an interview.

Schmidt said Wednesday in an email that he had not yet reviewed Rhynhart’s report. “Thus, it would be inappropriate to comment at this point on her findings.”

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The city commissioners chose ES&S, one of the largest voting machine suppliers in the nation, using the city’s “best value” procurement process, which allows more leeway when selecting a vendor and does not rely on price alone.

The report Rhynhart released Wednesday broadens the findings she revealed in August that showed ES&S violated the city’s anti-pay-to-play laws for failing to disclose lobbying activities and campaign contributions to Deeley and Schmidt in 2017 and 2018.

The new report shows ES&S has spent $428,032 on lobbying efforts since 2014.

ES&S reportedly began lobbying Philadelphia officials in 2013 — a year before the city first began attempting to replace its voting infrastructure.

Schmidt, a commissioner since 2012, visited the company’s headquarters in July 2013. He did not seek reimbursement and stated in the report that he visited ES&S on his own accord, but he could not recall who he met at ES&S or what they talked about.

Schmidt’s visit to ES&S’s headquarters was the only visit a city commissioner made to a potential voting machine vendor’s office, the report said.

Later in 2013, Schmidt benefited from $2,000 in campaign donations from Duane Morris, an ES&S lobbying firm, according to the report. ES&S did not disclose those donations at that time.

In a 2014, a Schmidt deputy outlined the commissioners’ budget request for voting machine funding and listed 12 examples of voting machines using a newer type of technology — all of which were ES&S machines, according to the investigation.

ES&S spent more than $27,856 on “direct communications” with Schmidt, specifically, throughout the procurement process, according to the report.

The payoff was in February when the Board of Elections, made up of three city commissioners, voted to award ES&S the lucrative city contract to supply the new voting machine system for the November election.

At least two members of the selection committee for the voting machines said they felt representatives from the city commissioners’ office were “putting pressure” on the committee to select ES&S, according to the investigation.

There was a “greater emphasis on the ES&S voting machine,” according to one member of the selection committee cited in the report, and the commissioner’s office provided a disproportionate amount of information about ES&S in contrast to other vendors.

The controller’s report also said Deeley and Schmidt took in campaign donations before their vote, which should have disqualified them from serving as members of the Board of Elections under state law.

When issues with the process came to light in August, the city slapped ES&S with a $2.9 million fine. Still, the Board of Elections, which included two appointed members filling in for Deeley and Schmidt, voted to maintain the contract with ES&S.

Community activists continue to voice opposition to the contract.

Protect Our Vote Philly called for law enforcement to investigate the city controller’s findings in a statement released on Wednesday.

“Deeley and Schmidt are unfit for office,” said Murielle McCarthy, a resident and member of Protect our Vote Philly. “This is such a violation of the public trust.”

Michael D’Onofrio is a reporter for the Philadelphia Tribune, where this story first appeared.

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