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Cover Story
Buyers’ remorse
Miami-Dade officials await inspector general’s report on whether to scrap costly, cumbersome es&s touch-screen balloting system
February 3, 2003
By Matthew Haggman
Last week, the search committee to find a replacement for outgoing Miami-Dade Elections Supervisor David Leahy met for the first time to discuss launching a national search for a new elections chief. Leahy resigned under pressure in the wake of the massive election problems the county experienced in the September 2002 primaries due to the expensive new touch-screen voting system he acquired.
The committee, which is headed by Leahy, discussed where to advertise, the minimum qualifications of applicants, whether to hire an executive search firm, and what questions to ask applicants. Then Lida Rodriguez-Taseff, chair of the Miami American Civil Liberties Union and a member of the committee, asked whether candidates would be open to considering new voting technology other than the high-tech touch screen machines it used last fall.
“It’s a state requirement — there is only touch-screen and optical scan,” First Assistant County Attorney Murray Greenburg shot back. “And the county has already spent $25 million on touch screen.”
The issue of what to do — if anything — about the county’s embattled voting system has overtaken any discussion related to elections. The county inspector general, who has already been critical of the procurement process that led to the current system, will soon release a report with recommendations to the County Commission about what steps to take to fix the controversial system. One possibility: Scrapping the iVotronic system that has already cost the county $24.5 million.
While county officials like Greenburg are hostile to the idea, as Miami-Dade prepares to select a new elections supervisor, some think that the first and biggest election issue is whether to retain the Electronic Systems & Software iVotronic system. In Broward County, where the system also failed and has been the subject of criticism, county leaders are focused on ousting embattled Elections Supervisor Miriam Oliphant, who ironically opposed selection of the ES&S voting technology but was overruled by the County Commission.
The iVotronic system was installed last year in Miami-Dade and Broward as the hoped-for solution to the massive problems of the presidential election of 2000.
Sources familiar with Miami-Dade Inspector General Christopher Mazzella’s thinking predict that his long-awaited report will be highly critical of the machines and the process by which they were purchased — and may even recommend that the county ditch the machines and try to get its $24.5 million back, or else sell the 7,200 machines to another county.
Problem is, the contract language negotiated by Miami-Dade appears to give the county little leverage to get its money back, experts say. The situation is similar in Broward.
Miami-Dade and Broward experienced huge problems with the ES&S machines in the Sept. 10 primary vote, which many observers think helped swing the Democratic gubernatorial nomination from Janet Reno to Bill McBride. It’s widely accepted that the system only worked well in the November general election as a result of a massive and costly mobilization of public employees in the two counties to run the election.
In his Jan. 22 report on the fall election woes, Miami-Dade County Manager Steve Shiver concluded that the county spent an extra $5 million to ensure the November election went smoothly after the disastrous primary election snafus. In the report, he wrote that the November election “did not establish an organizational model for a sustainable election process.”
Inspector General Mazzella, whose report may come out later this month, told the Daily Business Review that there is a “deficiency in the voting equipment” but declined to give any details about his forthcoming report. The County Commission “should wait for our report before doing anything so they get the complete picture,” he said.
A number of Miami-Dade County commissioners have been critical of the ES&S system and have raised the idea of ditching it. “There are serious questions with the level of performance, which probably would allow us legally to get out of the contract,” said Commissioner Jimmy L. Morales, who sits on the commission’s elections subcommittee. “I wouldn’t be surprised if the inspector general recommended we scrap the contract.”
“I have a concern of how [the contract] was dictated to us,” said Commissioner Sally Heyman. “If this is good as we get for $24 million, I don’t think the people of Miami-Dade County got a good deal.”
At least one county commissioner in Broward, Ben Graber, also has been sharply critical of the iVotronic contract and system. Broward spent $17.2 million for 5,200 machines, even though Elections Supervisor Oliphant favored acquiring a rival system manufactured by Oakland, Calif.-based Sequoia. At one point, Graber urged the county to consider getting out of the contract with ES&S.
But now Graber says he’s resigned to keeping the problem-plagued system, as the county manager says there’s no way for Broward to get out of the contract with ES&S. “We invested a lot of money and I’ve been told that we don’t have any recourse unless the machines completely fail,” Graber said.
Omaha, Neb.-based ES&S, the largest voting machine manufacturer in the country, did not return repeated calls for comment for this article. The company’s influential Florida lobbyist, attorney and former Republican legislator Miguel DeGrandy of Miami, who was instrumental in winning ES&S its contract with Miami-Dade, declined to speak on the record without permission from the company.
But at an Oct. 21 meeting held by the Miami-Dade County Commission Election Task Force, an ES&S official defended the company by saying the primary election problems were due to untrained poll workers, poor procedures and the county’s lack of familiarity with the system, rather than being due to defects in the iVotronic system.
“It is primarily around people and procedures,” said Michael P. Limas, executive vice president and chief operating officer of ES&S. “The failure to insert memory flash cards correctly, a lot of issues around power and battery problems, terminals not being plugged. Frankly, in the experience of both Miami-Dade and Broward, the equipment performed very well.”
Poorly written contract?
In 2001, the Florida Legislature mandated the elimination of the punch card system, which was blamed for the presidential election voting debacle of 2000. A year ago, Miami-Dade County purchased 7,200 state-of-the-art touch-screen voting machines from ES&S, the largest voting machine purchase in U.S. history.
But the September 2002 primary elections in Miami-Dade and Broward featured long lines and delayed poll openings. The problems were attributed to incorrectly programmed voting machines and workers’ failure to turn them on at the right time.
The result, observers say, was that thousands of people who voted or turned out to vote did not have their votes counted, particularly in heavily black precincts. An Oct. 20 report by the ACLU found that a study of 31 precincts in Miami-Dade in the September primary showed that the votes of 8.2 percent of all voters who went to the polls in those precincts were not counted.
Some now say the new high-tech system, which was associated with so many problems in the September primary, only injects a host of new difficulties into the two counties’ seemingly endless election headaches.
Furthermore, critics say Miami-Dade was negligent in failing to protect its rights under the contractual bond provisions after the failures of the system became evident. It signed a contract that allowed the performance bond to expire after the November election was certified, which critics say was not the proper benchmark for the success of the system. That gave the county limited legal recourse against ES&S.
“It’s unusual to have such a short trigger,” said Jorge Luis Lopez, a lawyer-lobbyist and partner at Steel Hector & Davis with experience in government contracts who was not involved in the ES&S deal. “The only time you know there would be problems would be after an election. It does not give parties time to identify problems. Without the performance bond it makes things much harder.”
Wrong for the location?
The Miami-Dade Election Reform Coalition has accused the county of spending taxpayer monies on “unproven and complex technology.” Others have criticized the selection of the iVotronic machines as a poor choice for large urban counties like Miami-Dade and Broward because the machines require a large corps of well-trained, computer-literate and organized poll workers.
Critics like the Miami-Dade Election Reform Coalition and Broward Commissioner Graber say ES&S provided inadequate training, did not properly calibrate the voting machines and failed to provide proper logistical support.
Of Florida’s five largest counties, only Miami-Dade and Broward had trouble in the September primary. The three next largest counties, including Palm Beach County, used a touch-screen system by Sequoia that puts lesser demands on poll workers. Unlike the ES&S devices, the Sequoia machines arrive at the polling place ready to use and do not require poll workers to reset the machines each time someone votes.
But the most important critic of the ES&S touch screen machines may turn out to be Inspector General Mazzella, who told the Review that “we are examining whether these machines are adequate for elections in this county or not.”
The inspector general previously expressed skepticism about the ES&S system. In a Sept. 20 statement announcing his investigation, Mazella wrote: “I want to stress that the [Office of Inspector General] is not comfortable with the iVotronic System procurement process and the performance of the contractual obligations of the vendor. As such, it has initiated a separate inquiry to examine this contract.”
Mazzella told the Review that “these machines make elections much more expensive than they’ve been.” Running a countywide election with the ES&S machines require so many poll workers and so much technical support that it costs as much as five times more than conducting an election with the old punch-card voting system, he said. “I don’t think this was really explored during the procurement process.”
Lobbying free-for-all
The issue of which voting system to use was prompted by the Legislature’s decision in 2001 to decertify punch-card machines and order most of Florida’s 67 counties to upgrade to touch-screen or optical-scan voting technology by the 2002 elections.
ES&S, Sequoia and Ohio-based Diebold, among other companies, lobbied intensely to get their voting systems quickly certified by the Florida secretary of state’s office in hopes of winning contracts with contracts throughout the state.
ES&S lobbyist Sandra Mortham, a former Florida secretary of state and briefly a running mate of Gov. Jeb Bush in 1998, convinced the Florida Association of Counties to endorse the ES&S system in exchange for the association receiving a fee each time the company won a county contract. Mortham could not be reached for comment.
David Leahy, who headed the Miami-Dade committee that selected the ES&S system, says the Florida Association of Counties endorsement had no bearing on his decision to choose ES&S.
Sequoia lobbyist Courtney Cunningham of Coral Gables-based Barretto Cunningham and May said the selection process was “probably done on merits, but the merits were wrong.”
“Factors that should have gone into determining selection, didn’t,” he said. “Like a simple question, have they ever done this in a county of this size? It’s a simple question. … The elections supervisor in Palm Beach, Hillsborough and Pinellas picked us. Broward didn’t and Dade didn’t: look what happened there.”
The chief executive of Sequoia, Peter Cosgrove, who lost out to ES&S in Miami-Dade and Broward, said he felt the Miami-Dade selection process was fair. But he calls the Broward selection process “appalling.” His firm, he said, was given just 15 minutes to present the Sequoia system to the Broward county commissioners.
Commissioner Heyman said she’s still angry that Miami-Dade was given so little time by the state to select an election system and fumes over the aggressive role of the lobbyists.
Other Miami-Dade commissioners also are critical of the iVotronic machines and how the county handled the contracting process. They are anxiously awaiting the inspector general’s report before taking a position on whether to dump the ES&S system.
Commissioner Dennis Moss said the massive effort the county made to prevent problems, which included the deployment of more than 3,000 county employees in the November election is “unsustainable.” He said he would prefer to correct the problems with the ES&S system rather than scrap it, but is willing to consider alternative systems.
“If things can’t be cured, then we need to look around,” said Moss, who chaired the election task force that helped mobilize county resources for the November election and who serves on the election subcommittee. “If there are problems, then maybe we’ll try to recoup the money spent. The IG report will be very, very important.”
No contractual recourse?
While Miami-Dade is still considering its options, Broward County has concluded that it has no breach of contract claim against the company. In a September memo, Broward County Administrator Roger Desjarlais concluded that ES&S did not violate any of its contract terms. Instead, Desjarlais pinned the blame on Supervisor of Elections Oliphant. “ES&S election services are intended to support the supervisor of elections, who is responsible for conducting the election,” Desjarlais wrote.
Even if Miami-Dade ultimately decides it has a valid claim against ES&S, the prospect of recovering the millions spent on the machines would be dicey.
Already, according to the Department of Finance, the county has paid $23.3 million of its $24.5 million contract with ES&S and has limited recourse in getting any of its money back. Under the contract, the performance bond was fully disbursed to ES&S when the November election was certified shortly after Nov. 5.
Supervisor of Elections Leahy, who spearheaded the decision to select the ES&S system, said the contract was negotiated by the county Department of Procurement, which is headed by Theodore Lucas. Neither procurement officials nor County Manager Shiver returned calls for comment.
‘Can’t go back in time’
Hindsight may be 20/20, but Miami-Dade and Broward may well have been spared a lot of agony if they had made the same election system choice as Palm Beach County.
That county’s supervisor of elections, Theresa LePore, who in 2000 approved the infamous butterfly ballot design that many think swung the presidential election to George W. Bush, said she’s delighted with her county’s selection of the Sequoia system. That system places much less responsibility on poll workers. By nearly all accounts, the fall 2002 elections in Palm Beach County went smoothly.
Unlike the ES&S system, the Sequoia technology previously had been tested in a large jurisdiction. Since 2000, Sequoia has provided voting equipment to Riverside County, a Los Angeles suburb that has a population of 1.5 million. In contrast, prior to Miami-Dade and Broward, ES&S had never provided equipment to any county with a population of 1 million or more.
“I wanted a company whose product had been used in jurisdictions comparable to Palm Beach County,” LePore said of her county’s selection of Sequoia.
Leahy still defends his choice of the iVotronic machines. He projects that the boot-up time of the computerized machines, which was a huge problem in the 2002 elections because it took as long as four hours, will be reduced to one hour. “Next time, poll workers will be much more familiar with the system and [ES&S] is planning on certifying new software which will speed the boot up process,” he said.
While acknowledging that the cost of operating the machines was higher than expected, Leahy predicts that the costs will drop because fewer county workers will be needed to provide technical help in the polling places. On Nov. 5, there were three county employees assigned to each of the county’s 553 polling places; eventually, that will be reduced to one worker.
“I am satisfied with ES&S and the enhancements coming up in the near future,” Leahy said. “You can’t go back in time and say if we had picked another we would have been better off. It’s idle speculation.”
Nevertheless, the fate of the iVotronic system — and the prospect of a contentious new voting machine selection process — may well rest on the upcoming report by Inspector General Mazzella. “With baited breath I wait to read it,” Commissioner Heyman said.
Matthew Haggman can be reached at mhaggman@floridabiz.com or at (305) 347-6649.
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