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Orange County supervisors – after intense public debate and being warned of a “tremendous risk” to the March election – backed off efforts to pick a lower-ranked, uncertified vendor for voting and ballot counting machines in next year’s high-stakes elections.

Over the course of an hour last week, Supervisors Andrew Do and Michelle Steel repeatedly questioned the county’s top election official to see if they could pick Election Systems & Software (ES&S), which offered a lower price but scored second in the county’s competitive bidding process. Its voting machines have not been certified by the state for use in elections, and a decision one way or the other isn’t expected until this month or next month.

“It seems like this board can make a decision, and [it] sounds like you can make it work, either way,” Do said at the Tuesday, Sept. 10 meeting.

The elections official, Registrar of Voters Neal Kelley, warned that could put the election itself at risk.

He said it was unclear if the state would approve the ES&S system, which he said had inferior paper ballot backups to ensure votes are counted correctly. And even if it was ultimately approved, he said the short timeframe before the March primary means the county likely would have to use its existing machines, which are 15 years old and at risk of failing.

“The system that is currently in our warehouse that has been used since 2003 is end of life. If I put that back out on the street, in the configuration that it is today, there’s tremendous risk to the election. And I think that is something that you should take into consideration as well,” Kelley told supervisors after an hour of questioning at the meeting.

“[The risk is] that the systems could fail. That there would be no parts to keep the motors running in the printers. The [software] platform that it is operating on is currently not even supported by Microsoft. They will not take a phone call on it,” Kelley added.

It could lead to problems with tallying up votes, and candidates contesting election outcomes, he warned.

“There are experts in this field, from MIT and Stanford, that are saying the exact same thing I am. This is not just your election official saying this. There are risks associated with this. And I just want to be very emphatic about that with your board,” said Kelley, who previously served as president of the nationwide association of county election officials.

The discussion came as Orange County decided on purchasing new voting machines for the next several years. The county is also moving to a “vote center” model in which there’s fewer places to vote in person, but voters will be able to vote once anytime in the 10 days before Election Day.

Kelley asked the board to start the bidding process for new machines more than two years ago, which the board rejected in June 2017 without public discussion.

“I have been on record for years talking about this issue, and planning since 2014 for this transition. And sir, that’s why in 2017 I came forward [with] that [request],” Kelley told Do at the Sept. 10 meeting.

Do said he was right, and stopped pressing for the uncertified vendor.

“You did. You’re right. You did raise that concern before. I’m done [with my questions],” Do said.

“Now I’m kind of backtracking,” he later added. “I have to take into consideration when [Neal Kelley] tells me that the integrity of our voting process is at risk. I know you enough, Neal, that I take what you say at face value, and I know you don’t things like that out lightly. And when I hear that kind of thing, now I’m taking a step back.”

Do and Steel then joined the two other supervisors present in moving forward with the top-ranked firm, Hart InterCivic, for a $15 million contract for new voting and ballot counting machines.

An ES&S executive told supervisors the company was able to deliver the voting system in the five months before the March election. But Kelley said the uncertainty around when their machines would be certified – if at all – meant officials would have to consider using the existing machines that he said would create a risk to the election.

Supervisor Lisa Bartlett said she was “really torn” about which way to go, but ultimately said she was voting for the top-ranked firm to ensure there’s “a secure process for the March primary and beyond.”

Among the four bidders, ES&S was the only firm to hire a county lobbyist, according to the county lobbying registry. The firm hired as its lobbyist Anthony Patrick Munoz, a lawyer with Rutan & Tucker who also serves as the city attorney of Dana Point and Twentynine Palms.

Orange County has emerged as a central battleground for control of Congress, with all four Republican seats flipping to Democrats last year and Republicans aiming to win them back next year.

Local races are also in play, with competitive races expected for state Assembly, Senate, county Board of Supervisors, and city councils.

The county’s bidding process involved having seven experts review the four companies’ proposals for voting machines and scoring them.

For the voting system, Hart scored 85 points and ES&S scored 68.

For the ballot counting system, Hart scored 81 points and ES&S received 71 points.

Among other reasons Hart scored higher, bid reviewers found Hart’s system to be more user friendly for voters, Kelley said.

“That was lot of the comments that I heard from the panel – that the intuitiveness, and the user friendly aspect of the Hart system far outweighed the ES&S solution,” Kelley said.

The panelists also found Hart’s system did a better job with generating paper ballots to verify the machines were accurately counting election results, he added.

Hart’s paper backups look like the ballots on the screen, while ES&S’s don’t, Kelley said. The bidding panelists found that “could cause confusion for our voters,” he said.

“Having [a] human-readable paper ballot that you can go back to in the event of a security breach or a cyber incident, and re-create the election, and prove who the winners were – without question is a recommendation across the United States, from national organizations,” Kelley said.

“And that is something that I wholeheartedly support.”

Nick Gerda covers county government and Santa Ana for Voice of OC. You can contact him at ngerda@voiceofoc.org.