DOWN FOR THE COUNT

by Andrew Gumbel

Riverside County?s outspoken registrar was a national poster child for touchscreen voting, but problems with the machines may have just ended her career

RIVERSIDE ? Late Monday, word came that Mischelle Townsend, Riverside County?s Registrar of Voters, had abruptly quit her job mid-term. She said she wanted to spend more time with her family, and nurse her father-in-law through his impending knee surgery. Worthy sentiments, for sure. But she didn?t mention anything about a controversial March 2 election for county supervisor that was still being contested, and the recount that had become entangled in problems attributable, in part, to the county?s electronic voting machines. Nor did she mention anything about potentially explosive new details regarding the possible manipulation of those machines. Likewise, no mention of the big list of questions to this effect from Los Angeles CityBeat sitting on her desk since last Saturday.

Instead, the state?s most outspoken champion of e-voting machines, who was leading a lawsuit against Secretary of State Kevin Shelley to try to revoke a list of 23 improved voting security measures imposed last month, is stepping down and vanishing. Townsend leaves not only a mass of unresolved questions about the contested supervisor seat, but also about the fate of e-voting in this state.

The Power of Incumbency

Elections can be brutal things, but shortly after the polls closed on the night of March 2, supporters of Linda Soubirous, an underdog candidate for the Riverside County Board of Supervisors, had reason to feel happy with her performance. She had gone up against three-time incumbent Bob Buster, in a county where incumbents rarely face serious competition. And she had given him a real run for his money, thanks largely to the support of law enforcement groups sympathetic to her nationally recognized campaigns on behalf of the families of police officers killed in the line of duty.

As the first official results came in, it looked as if the Soubirous campaign had forced Buster into a runoff, which was as much as she had hoped for. With 46 of the county?s 157 precincts counted, Buster was running at about 47 per cent ? three points below the 50 percent plus one he needed to win outright ? with Soubirous at 37 percent and a third candidate, Kevin Pape, at 15. But then some very strange things started to happen.

The expectation was that the rest of the results would come in very quickly. Speed, after all, was one of the big attractions of Riverside?s pioneering touchscreen computer voting system ? with its instant precinct-by-precinct vote tallies and ostensibly easy-to-operate system for centralized results tabulation. But the anticipated rapid-fire s simply failed to materialize. After the initial results posting at 8:13 p.m., there followed a long period of silence.

At around 8:50, Soubirous?s campaign manager, Brian Floyd, received a call from an election observer in Temecula informing him that the vote count had been stopped ? apparently by Registrar Mischelle Townsend herself. The reason was not made clear. So Floyd and another Soubirous campaigner named Art Cassel jumped into a car and drove to Townsend?s office to investigate. Sure enough, the counting area appeared to be near-deserted. But then they noticed two men huddled at one of the vote tabulation computers.

One, according to their account, was typing away on the computer keyboard, while the other was standing just next to him.

The two men turned out to be employees of Sequoia Voting Systems, the private company which manufactures Riverside County?s AVC Edge touchscreen machinery. Their presence was unusual, to say the least, and even the possibility that they might be making changes to the vote tabulation software in the middle of an election was alarming to Cassel and Floyd. Sequoia insists the two men?s activities were entirely benign ? merely generating lists of data to send to the Secretary of State?s office in Sacramento that had nothing to do with the tabulation software. Soubirous?s campaign staff has made no direct accusations, although it has strongly criticized the registrar?s office for allowing at least an appearance of impropriety at a time when the sanctity of the electoral process should have been paramount. Cassel and Floyd said the man at the keyboard, a Sequoia vice president called Mike Frontera, was wearing a county employees? ID badge ? something that has not been adequately explained by anyone. ?What they were doing there we?ll never know,? Cassel said.

When Floyd confronted Registrar Townsend directly, she denied that the vote count had been halted. But at 9:10, according to Cassel?s account, something seemed to have changed because county employees piled back into the counting area, and results from the outstanding precincts began to be posted shortly afterward. As the night went on, Buster?s lead over Soubirous steadily lengthened until he finished up a slender 92 votes over the 50 percent threshold he needed to avoid a runoff.

Over the next few days, as the totals from absentee and mail-in ballots were added, the margin shrunk down to a tantalizing 45 votes. And that part of the count remains highly contentious, too. On March 4, Floyd and Cassel saw the second Sequoia employee, Eddie Campbell, return to the registrar?s office and watched him pop into his pocket what looked like a PCMCIA card similar to those used to store votes on individual touchscreen machines. The Sequoia AVC Edge machines do not make a paper record of individual votes, and any record of total votes for a potential recount ? vital in a race ? separated only by 45 votes ? would only be stored on that kind of card.

Floyd shouted out: ?Where are you going with that?? But he received no answer.

Accompanied by different county employees, Campbell walked all the way to the vote tabulation terminals where, according to Cassel, he sat down at the same computer he and Frontera had used on election night. Cassel says he saw the head of the registrar?s information technology department, Brian Foss, log Campbell on to the computer ? presumably with his own password ? and then leave the room. Campbell, now on his own, called up a screen that Cassel said he recognized as the WinEds tabulation software used on the Sequoia system.

What happened next is less than clear. According to Cassel, Campbell began moving from terminal to terminal ? as though he was having difficulty being accepted by whatever system he was trying to enter. Floyd, meanwhile, was anxious for an explanation and tried to track down Mischelle Townsend. It took him all day to find her, and when he did she at first said that Eddie Campbell was not authorized to be in the system and then, in the presence of Brian Foss, changed her tune and said he was.

For the moment, we have only Cassel and Floyd?s version of these events. CityBeat gave Townsend a long list of written questions outlining their account and inviting her to rebut it with her own. At first she said she would be glad to answer, but she missed a mutually agreed deadline, and failed to respond to messages left at her office. Eventually reached on her cell phone, she said she had been advised by her lawyers not to contribute to an article that ?obviously was not going to be factual.? Pressed on what she meant by this, she ended up answering some questions, but would not be drawn in on the specifics of Cassel and Floyd?s allegations.

She also failed to mention that she had just quit her job. The next morning, as this article was going to press, the Riverside Press-Enterprise reported that she was retiring early. Perhaps she really is concerned about her father-in-law?s upcoming knee surgery, but her detractors in Riverside County have their doubts. Indeed, the fallout from the Buster-Soubirous race suggests it is a textbook case of how not to conduct an election in just about every respect.

Recount Follies

Given the closeness of the supervisor?s race, the Soubirous campaign requested a recount in early April. Because of the alarm bells raised by the initial count, Linda Soubirous also hired a lawyer, who drafted a closely worded formal request for 44 separate items that would cast maximum light on the workings of the Sequoia voting machines, and cross-check the voting totals on the individual touchscreen machines with the tallies tabulated at the registrar?s headquarters. As pointed out by the growing chorus of critics of touchscreen machines, none of these safeguards constitutes a full recount exactly, because there is still no independent paper record of ballots confirming each voter?s intentions. If the machines or alter data ? either because of a software glitch or some kind of malicious intervention ? there is no way of knowing because they can print out only the information stored inside them, not the information as originally entered.

Touchscreen advocates like Townsend, however, argue that there is plenty of backup in the event of a vote-counting dispute. Townsend?s own website boasts of ?an extraordinary number of safeguards,? including redundant storage of votes in two different places and a paper ?audit trail.? It was this kind of information that Soubirous?s lawyer requested, based on his interpretation of his client?s rights under the California election code. But in almost every instance, Soubirous got neither answers nor materials.

Of the 44 items requested, only five were provided. Others were offered at different times, but in the end the recount went ahead without any examination of redundant data, audit logs, error reports, or any information documenting the chain of custody for data passed around on cartridges or over Intranet systems. The county is legally obliged, for example, to print out ?zero tapes? proving that each touchscreen machine and cartridge or card is completely clear of votes before the polls open. Those zero tapes, in turn, are supposed to be made available to the public at a reasonable cost if anyone should ask for them. But they have not materialized.

Gregory Luke, the Santa Monica-based lawyer representing Soubirous, called the recount ?a process that only Katherine Harris could love.?

?We were subjected to a reprint, not a recount,? he said, calling it ?an empty formality suitable only for banana republics or dictatorships.?

After he wrote to Townsend expressing his dismay at her refusal ?to provide information which has already been generated, and should have been retained by you in the ordinary course of your official business,? her lawyers wrote back that the materials requested were ?not relevant to the counting of ballots? and, in many cases, did not exist ? for reasons they did not elaborate. The materials, the lawyers argued, would become relevant only if it could be shown that they had been subject to fraud or error ? an argument that turns the issue on its head because, of course, the only way to find out if anything is wrong is to inspect the materials first.

Still, the recount was not without hiccups. Almost 300 paper ballots that had not been counted the first time suddenly turned up ? Townsend said the marks on them had been too faint to be picked up by the counting machines ? shaving Bob Buster?s share of the vote down to 50.07 percent, or just 35 votes above the runoff threshold. The Soubirous campaign continued to demand its 44 items, but Townsend then threw in some Catch-22 logic of her own. Having conducted and completed the recount her own way, she decreed that Soubirous could no longer ask for any materials because that would be tantamount to holding a second recount, which she wasn?t about to grant.

Riverside was the first California county to embrace touchscreen, or Direct Recording Electronic (DRE) voting. The experiment began in 1999, at the height of the dot-com boom, and came to look little short of a coup de g?nie by the time the 2000 presidential election rolled around, exposing the country?s aging punchcard technology to international ridicule. Townsend was held up as an example to be followed everywhere, and won high praise from Wired magazine, the Bible of the digital age, as some kind of visionary for the new century.

In truth, though, the system was beset with problems from the outset. Although little reported at the time, election night in November 2000 was a near-disaster, as the tabulation software overloaded and started deleting votes from the tallying system. The system was righted, at least according to Sequoia, but Riverside?s results were not published until two hours after San Bernardino County, then still using punchcards. The man who headed Sequoia?s resuscitation team in Riverside, southern sales manager Phil Foster, was subsequently indicted in Louisiana for ?conspiracy to commit money laundering and malfeasance? ? charges later ped in exchange for his testimony against Louisiana?s state commissioner of elections.

Long before the current controversy over the safety and reliability of touchscreens, Riverside ran into difficulty over the legal requirements for providing paper audit trails of the ballots inside each individual voting machine. The issue was discussed at length when California considered the Proposition 41 bond measure that overhauled the state?s voting systems and rewrote the state elections code. Because of concerns about Riverside and other emerging e-voting counties, Section 19234 (e) of the new Elections Code specifically called for a paper version of every ballot cast ? something that Riverside has always been reluctant to provide. (Evidence from the original purchase orders suggests a large number of Riverside?s 4,250 Sequoia Edge machines do not have printing capabilities, although Mischelle Townsend denies this.) Riverside?s difficulties were swept away, however, thanks to then-Secretary of State Bill Jones, who in late 2001 declared that printers on touchscreen machines were now ?an optional item? and opted for an extremely loose interpretation of Section 19234 (e). After he left office in 2002, Jones went on to become a paid consultant to Sequoia ? following two former staff members who also hold senior positions in the company.

As the tide of public opinion turned against DRE machines, Townsend found herself increasingly in the spotlight because she, more than any other California county registrar, had grown almost messianic in her advocacy of touchscreen technology. In 2002, she and the county were taken to court by a Palm Desert resident, Susan Marie Weber, who had grown suspicious after a local ballot measure which had failed twice using the old voting technology passed the first time with Sequoia?s machines. Weber sued for the introduction of a voter-verified paper trail, arguing that it was the only way to guarantee the integrity of the system. Her suit was thrown out by the federal appeals court last year, largely on the grounds that Sequoia?s AVC Edge system contains adequate safeguards ? the very same redundant data, multiple storage points and ballot images that the registrar?s office has now refused to show to Linda Soubirous and her lawyers.

That court victory was a fortuitous piece of timing for Townsend, because barely a month later the new Secretary of State, Kevin Shelley, ordered the introduction of the very voter-verified paper trail Weber had been after by January 2006. That, in turn, led to a virtual state of war between Townsend and her ostensible masters in Sacramento, culminating in a lawsuit in which she is seeking to have a number of Shelley?s rulings struck down. The fate of that lawsuit is far from clear in light of her resignation.

Her credibility was not exactly helped by the Soubirous controversy. And she was further rocked by a string of damaging revelations on conflict-of-interest issues, raising troubling questions about the good-old-boy nature of Riverside County politics and the way loose-knit political allies choose to interpret the rules of public office.

Revelation number one was her failure to file a statement of her personal economic interests, as required by state law, for four of the past six years. She hastily submitted the relevant forms to the county clerk?s office as soon as the news hit the papers at the end of March. Copies obtained by CityBeat (complete with stamped date of receipt) show that parts of the forms ? particularly regarding her husband?s employment with a private government contractor called Maximus, Inc., which has done business in Riverside County ? are left blank. Next to her signature she put the date the forms should have been filed, as opposed to dates corresponding to when they actually were filed.

Revelation number two came in her 2003 filing, which showed that she had accepted more than $1,000 worth of travel ? and hotel expenses from Sequoia to appear in a promotional video in Florida. Not only did the amount exceed Riverside?s $340 gift limit for public officials, it also triggered demands from a former Banning councilman, Joe Lucsko, for Townsend to be suspended from her job pending an investigation by the state Fair Political Practices Commission.

Revelation number three concerned the hiring of the Sacramento law firm Bell, McAndrews & Hiltachk, which is now representing her in the Soubirous recount controversy. County documents show that the request to retain outside counsel was submitted to the Board of Supervisors on April 8 and approved on April 13. However, the contract establishing the terms of the law firm?s activities on Townsend?s behalf ? obtained by CityBeat ? is dated April 7. In other words, the lawyers appear to have been hired first and approved only later (at a cost to the taxpayer of $2,000 a day for work in Riverside County, and at least $350 an hour for everything else).

Townsend has denounced much of the above as ?groundless and politically motivated innuendo.? At one point in April, she went to the Riverside District Attorney, Grover Trask, and asked him to open an investigation into the allegations against her regarding the Soubirous-Buster election. But here, too, was a possible conflict of interest. Trask had openly endorsed Bob Buster in his election campaign. Both men had ties to the same political consulting group, O?Reilly Public Relations. One of O?Reilly?s other clients also happens to be Sequoia Voting Systems. To the surprise of nobody in the county, the district attorney came back after a few days and announced that the election had been in perfect accordance with state and federal law. Art Cassel and Brian Floyd said the district attorney?s office reached its conclusion without talking to either of them.

The Myth of Proprietary Software

Much of the opprobrium thrown at the makers of touchscreen voting machines has focussed on Sequoia?s rival, Diebold Election Systems. In fact, when Diebold?s source code was left lying around on the Internet and found sorely wanting by a team of computer scientists who analyzed it last year, Sequoia gloated that ?while Diebold relies on a Microsoft operating system that is well known and understood by computer hackers, Sequoia?s AVC Edge runs on a proprietary operating system that is designed solely for the conduct of elections.? Mischelle Townsend offers her own testimonial in similar terms on the Sequoia company website. ?Sequoia?s software is proprietary,? she writes, ?not sold off-the-shelf and available to anyone, making it much more secure.?

However, these claims are at best misleading and, at worst, entirely bogus. Sequoia?s statement omits the fact that its WinEds vote-tallying software ? as opposed to the vote-gathering part of the operation ? runs on a Microsoft operating system and uses a Microsoft database. At least in the version in use until late last year, WinEds was written in a computer language called Visual Basic, which is notorious for its popularity with virus writers. VB is banned under the Federal Electoral Commission?s 2002 voting systems standards; WinEds, like much of the software in use in computer voting machines in this country, is certified under the pre-Internet age 1990 FEC standards.

It is not true, either, to say that the software used to run the touchscreen machines is ?proprietary? and ?not sold off-the-shelf.? According to a 2001 report by Wyle, an independent testing lab that analyzes voting software as part of the federal certification process, the AVC Edge machine has, ?at its core,? a commercially available operating system called pSOS.

We are learning much more about the architecture of Sequoia?s computer codes because they, too, showed up on an unguarded File Transfer Protocol site on the Internet last year and are now being studied in earnest. Jeremiah Akin, a Riverside County computer scientist and anti-touchscreen campaigner, has discovered a way of writing modifications into the WinEds ballot management software in such a way that all trace of outside intervention vanishes automatically. (Sequoia did not respond to messages seeking comment.) ?You can change the code, run it, save it and then, when you close down the system and you bring the system back up, all the modifications you made will be rewritten,? Akin said. ?The system will set it back to the original code.?
Sounds like a handy way of rigging elections. A similar flaw was noticed in a Technical Security Assessment Report commissioned by the state of Ohio last year, which noted: ?There is a risk that an unauthorized person with access to the administrator account ? might use any Operating Database Connectivity compliant product to access the Sequoia server and access or modify the database.? The Ohio report didn?t consider this very likely because it assumed some basic security procedures would be in place at county registrars? offices. Ask Linda Soubirous?s friends whether it could happen in Riverside County, though, and they might not be so skeptical.