Home>Feature>N.J. attorney general to probe ES&S vote tabulation errors that caused some ’22 election results to be double counted

A voting machine manufactured by Election Systems and Software. (Photo: ES&S).

N.J. attorney general to probe ES&S vote tabulation errors that caused some ’22 election results to be double counted

Matt Platkin not ready to accept narrative from voting machine manufacturer

By David Wildstein, January 24 2023 8:19 am

New Jersey Attorney General Matt Platkin announced  an investigation today into failures of Monmouth County’s voting machine vendor, Elections Systems & Software (ES&S), that led to the double counting of votes in the November 2022 general election, the New Jersey Globe has confirmed.

ES&S, the largest U.S. manufacturer of voting machines, admitted last week that a fail-safe system failed after a “human procedural error” during a July software installation missed a step set up to prevent flash drives that transfers election results from voting machines to tabulation systems from being loaded more than once.

Platkin’s decision to initiate a probe of ES&S signals that the attorney general’s office is not prepared to simply accept the company’s narrative without conducting a complete examination.

The results of at least once contest, a race for a school board seat in Ocean County, is now in question.  An informal tally that has not been released publicly shows Steve Clayton, who was certified as the winner of the November election and was sworn in earlier this month, now trails incumbent Jeff Weinstein by one vote.

“Because the database was not optimized, the user was not notified when the USB flash media were loaded twice into the results reporting module,” said Katina Granger, a spokeswoman for ES&S.  “USB flash media were loaded twice during post-election results compilation.”

Platkin, a Democrat, will designate an outside law firm to conduct the investigation to obviate any appearance of a conflict since the attorney general’s office is the legal counsel to the Monmouth County Board of Elections.

The probe will be lead by former New Jersey Attorney General Peter Harvey and staff at Patterson, Belknap, Webb, and Tyler LLP .  A former federal prosecutor, Harvey has led internal investigations for the National Football League and ran the New Jersey State Police compliance of a U.S. Department of Justice consent decree.

“Protecting New Jerseyans’ right to vote in a free and fair election is paramount to our democracy, and ensuring the integrity of that process is essential,” Platkin stated. “Based on public reports regarding the 2022 General Election in Monmouth County, a full investigation is warranted to encourage and preserve public trust in our elections, including recommendations for reforms to benefit the conduct of contests statewide.”

Sundeep Iyer, the director of the state Division of Civil Rights, said that “elections are the cornerstone of our democracy, and our elections must always be free and fair.”

“It is critical that our elections comply with all applicable civil rights laws. Voters in New Jersey deserve no less,” said Iyer.  “I am grateful for Attorney General Platkin’s continued leadership in protecting the right to vote.”

Senate Majority Conference Leader Vin Gopal (D-Long Branch) called on Platkin to investigate how the Monmouth County Board of Elections failed to produce accurate election results.

This is a civil investigation, the New Jersey Globe has learned, although the attorney general’s office has not closed the door to criminal investigation against ES&S, depending on what they find.

Granger told the New Jersey Globe that ES&S is ready to cooperate with the inquriy.

“We welcome the investigation and look forward to further review and verification,” she said.

In a statement, the Monmouth County Board of Elections, the Superintendent of Elections and the County Clerk said they “welcome and support any investigation by the New Jersey Attorney General into Election Systems & Software’s (ES&S) election software issue.”

“We have already been working with the Attorney General’s Office on this problem. Monmouth County Election Offices have also called on the State of New Jersey to require recertification of election systems – including election machines and software – both annually and whenever there is a modification to the election software. Monmouth County Election Offices also ask the State to create a new state mandated test and checklist to perform before elections to ensure the election software works properly,” the election officials said.  “Again, our top priority is ensuring the integrity of the voting process for the residents of Monmouth County.”

In order to wall off the attorney general from county election officials, it was Executive Assistant Attorney General Shirley Emehelu, not Platkin, whose name appeared on a lawsuit filed on Friday evening seeking a recount and recheck of some voting machines in four Monmouth County municipalities affected by the ES&S errors.   Superior Court Judge David F. Bauman scheduled a hearing for February 1 and an expedited briefing schedule.

It’s unclear whether the attorney general’s office will take physical possession of the USB drives and other records as part of their investigation, but it does appear that the Monmouth County election management system has already been altered after an ES&S employee reinstalled the software last week.

Monmouth County has two small elections today: a special fire district referendum in Millstone and a special school referendum in Manasquan.

About half of voters nationally use voting machines made by the Omaha-based ES&S.  Seven New Jersey counties have opted to use ES&S equipment.

The New Jersey Globe was first to report the election irregularities last week.

The New Jersey Globe also confirmed last week that some election officials in Monmouth County were aware that there were problems with vote totals as early as November 21, when former Belmar Councilman James Bean noticed inconsistencies with his hometown election results and filed a request with the Monmouth County Superintendent of Elections office to get more information.

Deputy Attorney General Susan Scott and New Jersey Secretary of State Tahesha Way were advised of the ES&S tabulation issues two weeks ago.

The double counting occurred in six districts in Belmar, Fair Haven, Ocean Township and Tinton Falls, but election officials have not yet disclosed which districts are involved.

The probe follows Platkin’s 2022 Voter Protection Initiative to identify and address obstacles to voting.

As part of the investigation’s mission, the attorney general’s office is also expected to propoe new election reforms.

Republican State Chairman Bob Hugin called out Platkin for investgating Monmouth, a Republican county, and not doing the same in blue Mercer County, where voting machines malfunctioned in Election Day last year.

“What we are seeing today is a ‘Tale of Two Counties,” said Hugin. “In Monmouth County, an isolated incident receives prompt attention from the Attorney General at the demand of a Democratic Senator, while in Mercer County, where there was a countywide failure of voting machines, the NJGOP has yet to receive a response to its November request for an investigation. Keep in mind: this total abdication of duty follows Governor Murphy’s stunning refusal to appoint a Deputy Superintendent of Elections – a Republican position – before Election Day.”

Hugin added, “These parallel systems of justice demonstrate just how nakedly partisan the Attorney General’s office has become in Phil Murphy’s woke administration. This incident only further emphasizes the need to elect a Republican check on Murphy’s reign of terror this November.”

This story was updated at 9:30 AM with comment from Platkin, at 9:35 AM with comment from ES&S, and Iyer, at 12:51 PM with comment from Monmouth election officials, and at 4:05 PM with comment f

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