This multi-part series originally ran in successive editions of Nebraska Sunrise News, beginning in late January 2022.

Election Integrity - Part One

Joe Herring

The general election of 2020 featured an unprecedented number of seemingly inexplicable statistical anomalies, systemic changes made to election laws, rules, and long-established practices, all combining to bring America’s confidence in the accuracy of that election to an all-time low. 

Allegations of voting irregularities in numerous states led to a renewed interest among average citizens in the mechanics and function of our own election processes, leading to many questions about Nebraska’s election integrity. Nebraska Sunrise News will outline the areas of contention and examine allegations of wrongdoing. We will report the responses to those allegations in an effort to bring our readers a fact-based, comprehensive review of the integrity of Nebraska’s elections. This is the first in a series of articles on this subject. 

In late Summer 2021, the Nebraska Voter Accuracy Project (NVAP), a coalition of disparate grassroots voter integrity groups, launched an investigation into Nebraska’s 2020 general election. They contend to have discovered evidence indicative of fraud. They have been sharing their findings at public presentations across the state. 

Their assertions are striking, and if confirmed, would bring Nebraska into that sad fraternity of states where election corruption has displaced election integrity. 

When hot-button issues are involved, personalities and agendas can intrude, complicating the search for common ground. As frequently occurs at the intersection of grassroots organizations and government agencies, innocent missteps create unfortunate misunderstandings.   

Citizens unused to the vagaries of government protocol unwittingly make ill-advised or counterproductive decisions, leading to indifference, even resistance from the very government officials in the best position to help. 

The resulting discord is only magnified by an “us vs them” mindset too often shared by both sides. 

Much of this dates back to the days of the Tea Party movement. It stems from the broken promises of many members of the so-called Republican establishment who were given control of Congress by the very voters they soon ignored.  

Many elected and appointed officials today recognize this dynamic and genuinely seek to bridge the chasm of suspicion, only to find their efforts derailed by agenda-driven elements on both sides of the argument. The issue of election integrity is no different. 

In our digital age, the proliferation of time-saving tools like optical scanners and computerized tabulation machinery has led to the explosive growth of a voting technology industry serving myriad jurisdictions.   

Where the methodology and tools involved in an election were once endemic to the locale in which they were used, economies of scale lead many states to adopt the use of the same equipment as other states. They run the same software from the same companies. 

Consequently, a vulnerability in one state is no longer limited to that state alone, but may extend to all users of the same system.   

In the weeks following the 2020 Presidential election, a great deal of focus was directed toward voting machines, their potential for exploitation and the perceived “loyalties” of the companies that manufacture them.  

Nebraska uses voting systems from Omaha based Election Systems & Software (ES&S), the largest of three manufacturers who share more than 90% of the market between them. Dominion Voting Systems of Denver and Hart InterCivic of Austin, Texas, are the other two major players in the industry.  

ES&S is privately held so isn't subject to the same disclosure of ownership and investor information as a publicly traded entity. This lack of transparency gives rise to a great deal of speculation among critics and competitors alike. 

However, as regards to their ownership, the company has repeatedly asserted it is wholly American owned, with shares divided between an Omaha-headquartered and employee-owned investment holding firm known as McCarthy Capital, led by Omahan Michael McCarthy, and the various members of the ES&S executive team.  

Nebraska Sunrise News has been unable to find any evidence or indication of an international ownership stake or investment in ES&S. 

The responsibility for conducting elections in Nebraska is vested in our individual counties and administered by an Election Commissioner or County Clerk, depending on the population of the county. There are very few elements to a modern election that aren’t governed by either state or federal law, and county officials look to the Nebraska Secretary of State’s office for guidance and review. 

The Secretary of State (SoS) conducts oversight to ensure compliance with both state and federal law and to provide a clearinghouse of sorts for ideas. These may include innovative procedures, equipment, or the need for systemic reforms or adjustments to Nebraska statutes to respond to ever-changing circumstances. Our current Secretary of State, Robert Evnen, presently has a slate of election reform legislation pending consideration in the Unicameral. 

These proposed reforms include requiring Voter ID, banning the practice of “ballot harvesting,” as well as regulating the use of ballot drop boxes. Evnen would also like to see Nebraska become a “winner take all” state, where the winner of the popular vote statewide receives all of our state’s electors. Nebraska currently awards electors based on vote totals per Congressional district. 

The 2020 election saw an unprecedented influx of private money given to government election offices across the nation, ostensibly to assist with managing the added expenses brought on by the pandemic. 

Facebook founder Mark Zuckerberg gave nearly a half billion dollars to election-oriented nonprofit groups to be distributed as grants. Nearly all the money was funneled chiefly to the Center for Tech and Civic Life (CTCL), a voter outreach effort run by activists with a long history of agitating for election rule changes exclusively favoring Democrats.   

Given the ideological bent of the groups involved, it’s unsurprising to find these grants went almost exclusively to Democrat-controlled counties, mostly in swing states. In Nebraska, only Lancaster County accepted the so-called “Zuckerbucks,” in an amount in excess of $400,000 dollars. Secretary Evnen finds this to be an unacceptable intrusion of electioneering and wants the practice made illegal.  

While Nebraska law permits individual county governments to enter into contracts for voting material and equipment themselves, the increasing costs of doing so independently has led to counties delegating this authority to the SoS for the purpose of enhancing purchasing power and saving taxpayer dollars.   

The SoS office researches and enters into contracts with election-related vendors on behalf of all 93 counties to harmonize equipment use and ancillary services.   

In this capacity, the SoS has engaged the services of ES&S for database management services, (contract available here) and voting systems and software for tabulating and recording votes, (contract available here).   

There are many areas of conflict between the NVAP and the Secretary of State’s office, including ballot handling, database access and vendor contracts. Some of these also involve individual County Election authorities, but all fall into one of three categories: 

●     Technology use, certification/verification procedures and safeguards

●     Data handling, reporting, verification and safeguards

●     Laws and regulations establishing election procedures/responsibilities 

Nebraska Voter Accuracy Project’s report is extensive, covering a litany of offenses they allege to have been committed in Nebraska. The entire report may be found at their website, www.nevoterap.com.  

The contracts between the State of Nebraska and ES&S have become a target of NVAP criticism. 

NVAP states in their presentation, the SoS and his technical team are “not contractually allowed by ES&S to review the hardware or software of our election counting machines and report any negative results” they might discover. NVAP characterizes this provision as indicative of “something to hide” on the part of ES&S and/or the Secretary of State, Robert Evnen. 

Secretary Evnen responded to this assertion saying, “Both contracts [for hardware and software] require that ES&S conduct penetration and vulnerability scans. We can negatively discuss ES&S or their equipment all we want. We cannot, however, release the results of those specific scans and reports.”   

At first blush this would seem to affirm the NVAP view of the ES&S contract, however Evnen clarified -  

“You wouldn’t publish on a website that your front door latch has a vulnerability to a specific bypass tool, where to find that bypass tool, and where your house is located, before you fixed your door latch, and you probably wouldn’t want to publish that prior vulnerability on your website even after it was fixed. It is not only a common practice, it is a best practice not to disclose results of penetration and vulnerability scans among all critical infrastructure industries.” 

The provision referenced in the NVAP presentation does not prevent the SoS from acting on any negative results discovered, nor does it prevent further investigation regarding such results. Additionally, Evnen noted, information like this can be exploited for political purposes, with ES&S suffering the economic consequences of potentially distorted reporting. This would appear to be a reasonable explanation for including restrictions on disseminating test results in their contract for services.  

ES&S is not alone in including provisions like this in their contracts. It is standard practice among their direct competitors, and more generally, among other major players in the tech industry. 

NVAP also asserted “that in Nebraska we don’t check the ES&S systems,” however a provision in the contract between ESSVR, LLC (Election Systems & Software Voter Registration) and the State of Nebraska, [found on page 14] appears to contradict that interpretation. 

By signing this agreement, ESSVR warrants that: 

aa. Assistance will be provided to the Customer by ESSVR in performing an

investigation to determine the nature of any security issues that are discovered or

are reasonably suspected. This investigation can include security scans made at

the Customer's discretion. 

As Secretary of State Evnen explained in an email response to my inquiries -  

“We have the right under our contract to have DHS (Department of Homeland Security) or independent third parties inspect the ES&S equipment. We run three separate test decks of ballots through every counting machine in the state shortly before every statewide election. There are numerous other penetration and vulnerability scans conducted by DHS and the state Office of the Chief Information Officer (OCIO). We use an Albert monitor for our voter registration database, which is backed up and separately stored daily.” 

An Albert monitor is a sensor-based Intrusion Detection System (IDS) that provides enhanced monitoring capabilities and notifications of malicious activity by scanning traffic through the sensor, searching for indicators of malicious activity.   

Evnen continued, “The machines are kept by the counties. No one has access to the machines other than county officials, state officials, and ES&S technicians upon request by the county and/or state or with the permission of the county and/or state in accordance with contractual maintenance requirements.” 

The election processes conducted by machines and software are legion; the security of these is paramount. In continuing coverage of election integrity, we’ll address those specific processes and the potential vulnerabilities identified by NVAP, and examine the position of the SoS and others on each.