Philly’s voting-machine contract will move forward despite vendor’s failure to disclose its use of lobbyists

Philadelphia’s acting board of elections voted Thursday to keep its current contract for new voting machines, days after the city’s legal department notified elections officials that the vendor had failed to disclose its lobbying activities.

“In my opinion, the continued implementation of ES&S’s voting system … is the right decision for the city,” Judge Giovanni Campbell said at a meeting in City Hall, reading from a piece of paper.

His comments, before voting to keep the contract, drew hisses and jeers of protest from dozens of people, many of whom had spoken during the meeting to urge him and the two other sitting board members to scrap the deal.

“What’s the point of public comment?” one shouted. Another followed: “This is a charade!”

Campbell, unmoved, stuck with his decision.

“I do not believe that this process should be overturned or restarted,” he said, despite the revelation that Election Systems & Software (ES&S) had bid for the city contract without disclosing its use of lobbyists and those lobbyists’ donations, including to elections officials’ reelection campaigns. In a meeting and letter, the city solicitor told the elections board that the contract was now voidable and that ES&S is liable for a $2.9 million fine, equal to 10% of the contract.

But the city’s procurement commissioner also warned in a letter that the process was far along and going smoothly, and that restarting would risk not having new voting machines in place by the April 2020 presidential primary election.

On Thursday, the two judges serving on the board of elections agreed.

“The position of the Philadelphia procurement commissioner … is well-stated, well-reasoned, and credible,” said Judge Vincent Furlong. “My vote is to maintain the contract.”

The howls of protest that followed the judges’ votes led to a handful of people being asked to leave the courtroom. They stood outside, chanting.

The two city judges were appointed to replace City Commissioners Lisa Deeley and Al Schmidt as they run for reelection. Right before recusing themselves from their duties in February, Deeley and Schmidt voted to select ES&S’s ExpressVote XL machines, a touchscreen system that prints voters’ choices on a paper ballot. Many of the protesters, who have attended other meetings of the commissioners, advocate hand-marked paper ballots, arguing that voters have more confidence when they pencil in their choices. The machines, they say, are costly and not secure.

The third commissioner, Anthony Clark, did not participate in February’s vote and has since spoken out in opposition to the contract, saying the selection process should begin anew. Clark abstained from voting Thursday.

City Controller Rebecca Rhynhart said she was disappointed the board did not take her advice and postpone its decision while her office continues its investigation. Rhynhart’s office was the first to flag the disclosure violation, notifying the city’s lawyers.

“These findings are only a small part of what my team has been looking into as part of this investigation,” she told the acting board at Thursday’s meeting, asking members to wait for her to finish the probe, in a few weeks.

Thursday’s meeting was called after the city solicitor, Marcel S. Pratt, reviewed Rhynhart’s findings and agreed that ES&S had violated the bidding procedure by failing to disclose its use of Duane Morris LLP and Triad Strategies LLC “to assist ES&S with obtaining the contract.” The two firms had also made contributions, including to Deeley’s and Schmidt’s reelection campaigns, that were not disclosed at the time of the bidding.

That made the contract voidable, and the board had to decide whether to move forward with the current contract, restart the process anew, or postpone a decision.

ES&S released a statement Thursday from Eric Anderson, its chief legal counsel, after the judges decided to keep the current contract. In it, Anderson said the filings “were inadvertently omitted.”

“We sincerely regret the oversight and have taken every measure to amend ES&S’ disclosure as part of the bid process,” he wrote in the statement. He emphasized that the company and the lobbyists had filed campaign-finance disclosures with the city’s board of ethics; at issue is an additional disclosure required as part of the bidding process.

The company has agreed to pay the $2.9 million fine.