This article was first begun in June 2006, following a conversation with then-Nevada Secretary of State Dean Heller but was placed on hold, then died from lack of interest and a change in employment status. In this conversation Heller and I discussed the new electronic voting machines the state had purchased from Sequoia Voting Systems, a company based in California and later acquired by the Canadian company Dominion Voting Systems in June 2010.
At the time, Sequoia was being sued by a New Jersey company called ‘Avante’, alleging infringement of two of its patents covering direct recording electronic (DRE) voting machines and optical scanners. I wanted to find out from Heller how the suit might effect Nevada.
Unfortunately, notes to that meeting have long been discarded and Dominion is currently at the center of another U.S election debacle.
You may have noticed atop your Nevada ballot: “Copyright © 2020 Dominion Voting Inc.” This means the ballot design which was created by Dominion and counted using the company’s proprietary equipment is technically its intellectual property.
Unusual as it may seem, this isn’t uncommon: Most voting technology used throughout the U.S. is covered by intellectual property law. That means the touch-screen you might have tapped on to vote could be patented. The software used to process your vote could be copyrighted. Before you even got to the voting booth, your ballot was likely designed on copyrighted software.
And one election-security expert predicted it would cause a nightmare after Nov. 3.
“We’re going to wind up with a thousand court cases that cannot just be resolved by just going into the software and checking to see what happened, because it’s proprietary,” said Ben Ptashnik, co-founder of the National Election Defense Coalition.
In most elections, the intellectual-property laws that surround the machinery of the US electoral system prove inconsequential in determining who won or lost a campaign, and software isn’t central to most contested-election scenarios, such as late-arriving ballots or issues with access to polling locations. But in instances where the vote tally itself is in question, analysts could need access to voting machines’ underlying code to determine if potential security flaws, errors or even purposeful tampering are behind the irregularities.
Nevada is in the middle of that nightmare…
It’s been two-decades since pregnant and dangling chads in Florida caused one of the biggest political rifts in U.S. history. Those faulty Florida ballots also directly led to the passage of federal legislation in 2002 that outlawed punch-card voting machines and allocated billions of dollars in federal funds for states to purchase expensive new electronic voting machines.
Now new questions are being raised about who was responsible for the faulty punch cards in that election. Those fingers are pointing to Sequoia Voting Systems, which not only makes e-voting machines that replaced punch cards but also created the punch cards that failed in Florida.
Several former employees of Sequoia revealed that in 2000 the company changed the paper stock it used for punch cards to paper made by Boise Cascade and that they knew before the election that the punch cards that Sequoia was producing would cause problems. In fact, pre-election testing by Sequoia showed that the cards were not punching cleanly and that dangling chads were going to be a likely problem in the election.
More than 50,000 Sequoia punch cards were discarded as invalid because voters appeared to have overvoted, and on 17,000 of the Sequoia cards, voters seemed to have voted for three or more presidential candidates.
After the 2000 election problems, Florida required its counties to replace punch-card voting systems with touch-screen systems, some of which were purchased from Sequoia. However, there were some major problems with touch-screen systems, and in 2007 Florida ordered the counties to replace them with optical-scan systems in July 2008.
In early 2008, New Jersey election officials announced that they planned to send one or more Sequoia Advantage voting machines to Professors Edward Felten and Andrew Appel, both of Princeton University for analysis for analysis.
In March 2008, Sequoia sent an e-mail to Felten asserting that allowing him to examine Sequoia voting machines would violate the license agreement between Sequoia and the county which bought them, and also that Sequoia would take legal action “to stop… non-compliant analysis… publication of Sequoia software… or any other infringement of our intellectual property.”
Shortly after this, Sequoia’s corporate web site was hacked. Ironically, that hack was discovered by Felten.
The following month, Hart InterCivic attempted a hostile takeover of Sequoia. Court documents revealed that Smartmatic still retained some financial control over several aspects of Sequoia.
Further, Smartmatic held a $2 million note from SVS Holdings, Inc., the management team which purchased the company from Smartmatic. In accordance to the acquisition contract, Smartmatic also retains ownership of intellectual property rights for some of Sequoia’s currently deployed election products in the US, and held the right to negotiate overseas non-compete agreements.
These arrangements were agreed upon under the scrutiny and approval of the Committee on Foreign Investment in the United States (CFIUS) of the U.S. Treasury Department, which had been investigating whether there were any ties between Sequoia, Smartmatic, and the government of Venezuela.
CFIUS dropped the investigation when Smartmatic agreed to divest Sequoia, in a deal whereby all of Sequoia’s shares were sold off to SVS Holdings for an undisclosed price.
Oddly, Smartmatic and Sequoia were competitors for a contract to provide voting machines and services to the May 10, 2010 national elections in the Philippines, a bidding process that saw Sequoia disqualified and Smartmatic the winner.
Five days before the elections, petitions were made to postpone the elections due to technical malfunctions with the electronic voting machines. However the Supreme Court rejected the petitions, affirming the vote would go ahead as planned. Following this several cities and provinces encountered several problems, postponing the election, leading to violence.
The All Filipino Democratic Movement released a critique of the election stating: “On March 4, 2010, [The Commission on Elections] issued Resolution 8786 dated March 4, 2010, essentially disabling the use of digital signatures. Thus, the electronically transmitted votes from the precincts no longer bear digital signatures.”
In June 2010, Dominion Voting Systems Corporation, an international company based in Toronto, Canada, with its US headquarter in Denver, Colorado, acquired Sequoia.
As for Smartmatic, the multinational company, headquartered in London, UK, is still in operation and specializes in building and implementing electronic voting systems. The company also produces a product called ‘smart city’ meant for government applications.
Smart city uses different types of electronic methods and sensors to collect date. This data is then used to manage assets, resources and services efficiently; and is meant to improve the operations across the city that is using the system. Data collection comes from both citizens and various electronic devices throughout the area being measured.
Antonio Mugica is the founder and CEO of Smartmatic and graduated from the Universidad Simon Bolivar in Caracas, Venezuela, where he earned an Electrical Engineering degree. He the formed company out of the SBC organization that was owned 51 percent by Smartmatic, 47 percent Venezuelan state telecommunications organization CANTV and 2-percent by an affiliated company, Bizta, also owned by the owners of Smartmatic, with a board member from the Bolivarian government during the time an industry-fostering loan from a government institution was in force.
In 2004 Smartmatic was granted a contract worth $128 million with Venezuela’s National Electoral Council to acquire its automated voting system, voting machines and support services for the Regional Elections scheduled for that year’s 2nd semester. But then, after collecting the required number of citizens’ signatures, the 2004 Venezuelan recall referendum was activated to remove Hugo Chavez from the presidency, Smartmatic hastily tailored its voting system to the changed requirements.
Much of this is but a history, meant as background into how Nevada came to have sixteen of it’s 17 counties using Dominion Voting Systems during elections. The only county not to have a Dominion machine is also the home of Nevada’s capital, legislature, assembly and judiciary.
According to Secretary of State Barbara Cegavske’s official webpage, Carson City County uses Elections Systems & Software. In 2018 Cegavske was the only Republican to win state-wide after she reauthorized the Dominion Voting System throughout the state.
Interestingly, in 2004, shortly after the state agreed to a $9.3 million contract to buy 1,935 new electronic voting machines, Heller and then-Carson City County Clerk Alan Glover had a very public argument outside of city hall over the legality and safety of the incoming Sequoia machines.
“As clerks we do not want to have a part of the voting system that is not certified and I don’t think that the paper trail can be certified because there are no standards to test against,” Glover said.
The agreement eventually added to the 2,926 machines Clark already had, bringing the total number in use for that year’s elections to more than 4,800, making Nevada the first state to go completely electronic with printers designed to let voters verify the machine recorded their ballots properly.
In 2003, Diebold’s CEO Wally O’Dell caused a controversy when he became a top fundraiser for George W. Bush and promised to help Ohio “deliver its electoral votes to the president.” While there is no evidence the CEO actually manipulated his company’s machines to alter the vote in Ohio — it went for Bush — the dispute and a host of issues involving the effectiveness of its technology led Diebold to sell off the voting business in 2009.
Then saying that Gaming Control Board experts have confirmed his fears about the security of Diebold Inc. electronic voting machines, Heller made Sequoia his official selection and then decertified the punch-card machines still used in seven Nevada counties, including Douglas and Carson City.
Meanwhile, Sequoia Voting Systems was the brand Clark County had been using for most of the decade prior.
Heller further said that the report by Marc McDermott, of the Gaming Control Board’s Electronic Services Division, was the key. McDermott’s report claimed that the Diebold system’s computer code has been published for any hacker to see on the Internet, and thus was no longer secure.
“When the Gaming Control Board’s Electronic Services Division reports to me that one system is superior to another, I’m going to place my confidence in that equipment,” Heller said.
He said the state will buy, with federal money, the necessary machines for every county except Clark, which already has some 3,000 of them. He said the state will also help Clark add hard-copy printers to its existing system and pay for training and other costs of the change-over statewide.
“I believe it’s important for the state of Nevada that everybody on election day votes in the same manner,” he said.
That is no longer the case.
Then Patricia Axelrod of Reno sued Sequoia Voting Systems Inc., claiming her vote in the 2004 general election was not counted because of a defective machine.
In her Washoe County District Court complaint Axelrod said she discovered her 2004 vote was neither registered nor counted after she accessed her voting record on the county Registrar of Voter’s Diebold Election Management System computer. She also questioned an independent laboratory’s certification of Sequoia’s AVC Edge with VeriVote Printer voting machines used in Nevada.
One of the lab’s reports listed anomalies with test machines, including a failure to operate when subjected to electrical surges, electromagnetic radiation and electrostatic discharges, Axelrod said.
But to lay this at the feet of Heller alone, isn’t fair. Questions have been asked time and again including in 2010 where it was widely believed by poll watchers that Harry Reid had inside help in winning his final election in the US Senate.
There was ‘glitch’ which after a few minutes delay saw Reid’s vote tally jump ahead to a 50.2 percent-44.6 percent margin after being down some 4 percentage points.
Almost immediately there were charges that voting machines throughout Clark County were rigged to place check marks next to Reid’s name before a person even had voted. These weren’t the first charges leveled as in late October, during early balloting, for example, a number of voters in Boulder City complained that Reid’s name already was checked.
According to one eyewitness, Joyce Ferrara, the problem was rampant.
“Something’s not right,” she said. “One person, that’s a fluke. Two, that’s strange. But several within a five-minute period of time – that’s wrong.”
But then-Clark County Registrar of Voters Larry Lomax didn’t see evidence of vote fraud and neither did Nevada SEIU spokesman Nick Di Archangel, who also dismissed the possibility of fraud, saying, “The machines cannot be compromised.”
Sharron Angle didn’t benefit from these apparent mishaps.
Actually, the pre-election tally marks were very likely the doing of a local of the Service Employees International Union (SEIU.) According to the organizations collective bargaining agreement (CBA) between Clark County and SEIU Local 1107 the union was put in “charge of servicing all voting machines.”
“The County hereby recognizes the Union as the sole and exclusive collective bargaining representative of the County employees assigned to the classifications listed in Appendix A who are eligible to be represented by the Union except as limited by Section 2 of this Article. The Union shall be notified of additions to the list of classifications (Exhibit A) within seven (7) days of posting for the position classification and shall receive 30 days advance notice of any deletions.”
Exhibit A, in this case, and as described on page 75 of this agreement indicates “Voting Machine Technician” to be a classified SEIU position.
Although the CBA expired on June 30, 2010, it may still remain in force because of language in Article 43 which grants a year-to-year extension until one party deems it unworkable. Given that SEIU Local 1107 technicians run Clark County voting machines, any glitches in the end must be the responsibility of these workers.
Finally, a state probe into voter registration fraud in connection with the 2008 elections yielded evidence that dozens of ACORN-hired canvassers from a state prison release program had submitted hundreds of suspect, if not phony, registration cards. Former Las Vegas ACORN Field Director Christopher Edwards eventually pleaded guilty to two gross misdemeanor counts.
Secretary of State Barbara Cegavske met with the Nevada Supreme Court to officially certify the state’s election results Tuesday, Nov. 24, determining Democrat Joe Biden as the winner of the presidential vote. Nevada law requires that certification be completed by the fourth Tuesday following the election.
Biden won Nevada by 33,596 votes, according to results approved by elected officials in Nevada’s 17 counties. Biden got 50.06% of the vote and Trump received 47.67 percent.