Philly voting-machine vendor lobbied for years to win contract, city watchdog’s investigation finds

Philadelphia City Controller Rebecca Rhynhart released the results Wednesday of her investigation into the selection of controversial new voting machines.

A student tries out the new voting machines that will be used in Philadelphia during a voter registration drive at Community College of Philadelphia on September 24, 2019.Read moreMICHAEL BRYANT / Staff Photographer

by Jonathan Lai

Published Sept. 25, 2019, 3:55 p.m. ET

The vendor that won a $29 million contract to supply Philadelphia with new voting machines engaged in a years-long effort to lobby elections officials, who then rushed an opaque process that was biased toward that company, the city’s elected watchdog said Wednesday.

City Controller Rebecca Rhynhart said her office’s seven-month review of the selection process found that Omaha, Neb.-based Election Systems & Software, or ES&S, first contacted city commissioners in 2013 and that since January 2014 has spent more than $428,000 in its lobbying efforts “related to the City of Philadelphia.”

Rhynhart said these findings raise questions about the fairness of the bidding procedure and whether the commissioners — who are elected to oversee Philadelphia’s elections — acted ethically when they chose ES&S’s touchscreen ExpressVote XL machines to be used beginning this November.

“This process was not done right,” Rhynhart told reporters before releasing the 27-page report. “This process was opaque, predisposed toward one vendor, and raised conflict-of-interest concerns.”

Lisa Deeley, chair of the commissioners, said in a phone interview that she followed the proper process and did nothing unethical.

“It’s ridiculous,” she said of Rhynhart’s findings. “I don’t have any conflict of interest. I did my job, to the fullest of my ability, with complete integrity.”

Al Schmidt, the other commissioner who voted for the new machines, said in a statement Wednesday afternoon that he had not yet reviewed the report, which Rhynhart did not share before releasing it. “Thus, it would be inappropriate to comment at this point on her findings.”

For months, Rhynhart has called for scrapping the decision and restarting the bidding process. She opened a formal investigation in April.

The ethical questions raised by the investigation’s findings “should be looked at” by other officials, Rhynhart said, suggesting involvement by law enforcement. It was not immediately clear whether any law enforcement agencies had opened investigations.

Nick Custodio, deputy commissioner under Deeley, said his office had not been contacted by any law enforcement officials regarding the voting-machine selection.

Rhynhart’s investigation focused on the selection of the new systems, not on the integrity of the machines themselves.

That selection was conducted under a “best value procurement process” in which bids are evaluated on the basis of more than cost alone; a selection committee with confidential membership evaluated bid proposals before giving them to the commissioners to make the ultimate decision.

“Best-value guidelines are to avoid favoritism, are to avoid ethical misconduct, and to promote transparency. Those are the three guiding principles,” Rhynhart said. “I would say they violated best-value guidelines.”

For example, she said, the commissioners did not substantively engage the public in the selection, as other counties have, with demonstrations of various systems.

The best-value process involves scoring proposals on a number of criteria, which Rhynhart and other critics say were designed in this case to bias the selection toward the ES&S system. Two members of the selection committee told investigators they felt pressured to select ES&S.

“One committee member explained that there was a greater emphasis on the ES&S voting machine, and that representatives from the commissioners’ office provided a disproportionate amount of information related to the capabilities of the ES&S machine in comparison to the information provided on the other vendors,” the report reads.

That fit a pattern, Rhynhart said: City Commissioner Al Schmidt personally paid to visit the company’s headquarters in July 2013 but did not visit other companies; ES&S’s lobbyists donated to both Schmidt and Deeley over the years; representatives from Schmidt’s and Deeley’s offices last year visited counties in West Virginia and Missouri that use ES&S systems; a 2014 email from a former aide to Schmidt gave 12 examples of voting machines used in other places, of which all were ES&S systems.

“It’s really frustrating, honestly. I think this process wasn’t done right,” Rhynhart said.

Katina Granger, a spokesperson for ES&S, said in a statement that the company’s voting machines came out on top “through a documented process” and that “the selection was made on quantitative scoring.”

“We appreciate the city’s thorough review of this process and are eager to continue with implementation of the city’s new voting equipment that will be in place for the November 2019 election,” Granger said. “We have seen an overwhelming positive response from Philadelphians across the city who already had an opportunity to use the new machines through several public demonstrations.”