Ellis County District Court Judge Blake A. Bittel has been chosen to hear the contested election case between 111th District Rep. Eber Phelps and Ellis County Commissioner Barb Wasinger.
Bittel was chosen Tuesday at a 2 p.m. hearing at the Kansas Supreme Court in Topeka.
Wasinger, who ran for the 111th on the Republican ticket, is fighting to keep her 35-vote win over Phelps for the seat in the Kansas House of Representatives. She is represented by Joshua A. Ney, Oskaloosa, the county attorney for Jefferson County.
Registered voters in the Phelps camp on Dec. 10 filed a Notice of Election Contest in Ellis County District Court. They are asking the court for another look at the Nov. 6 General Election results. They say, among other things, the county’s 12-year-old voting machines are insecure and unreliable.
Bittel’s first step is to set a hearing date to hear both sides of the contest, said attorney Vic Miller, Topeka, who filed the contest earlier this month. The 58th District representative in the Kansas House, Miller is now off the case pending his appointment to a seat in the Kansas Senate being vacated by Gov.-elect Laura Kelly. Attorney Casey Yingling, Wichita, now represents the Phelps’ camp, Miller said.
For election contests, names of the judges in the relevant district are presented to attorneys for the opposing sides. They take turns striking names until only one remains.
There are only two district judges in the Ellis County 23rd Judicial District, Bittel and Chief Judge Glenn R. Braun. The contestee, in this case Wasinger, always goes first, Miller said.
At the appearance Tuesday, Ney struck Braun, leaving only Bittel.
Bittel ran in 2016 as a Republican for the 23rd Judicial District. A WaKeeney native, he graduated from Ellis County High School and got his undergraduate at Fort Hays State University. He practiced in Oklahoma City for more than a decade.
Braun has been district judge since 2012 and chief judge since 2016. He was in private practice for 31 years and previously served as Ellis County Attorney, Hays city prosecutor and commissioner of the Kansas Racing and Gaming Commission.
Running as a Democrat, Braun was elected judge in 2012. In private practice he was with Glassman Bird Powell, Hays. One of the firm’s name partners, John Bird, is representing Phelps in questioning reliability of the voting machines and the Nov. 6 election.
Bird has been seeking the electronic voting data from the county’s 69 voting machines used on Election Day.
The county’s iVotronic touch screen voting machines, two of which were taken out of service election day, are no longer on the list of voting machines approved for use in Kansas by the Kansas Secretary of State, Miller has said, but have been grandfathered in.
Bird received the electronic files last week and passed them along for review by Duncan Buell, a voting machine expert from South Carolina. Buell is part of the Election Verification Network, a national network of leaders, experts and policy makers who put their election and voting machine expertise to use to solve election problems. Buell is the NCR Professor of Computer Science and Engineering in the Department of Computer Science and Engineering at the University of South Carolina, Columbia, S.C.
Buell received the data by email Friday and ran the ASCII text files through his programs, he told The Hays Daily News Tuesday. The largest file, the Cast Vote Record for each machine, was only 10 megabytes, while others, like the Event Log, were only 1 megabyte.
With Ellis County using an older version of iVotronic software, Buell said he had to tweak his programs to analyze the files. Ellis County software is a version that dates to 2004 or 2005, Buell said. The latest certified version, like the one used in South Carolina, dates to 2010, he said.
From his review, votes on the iVotronic, a product of Election Systems & Software, Omaha, Neb., seemed to add up, Buell said.
Most notably, however, there was no evidence the machines had been calibrated.
“I have never seen an instance before of no evidence of calibration,” Buell said.
In his home state of South Carolina, for example, poll workers get to the polls prior to opening, and take a few minutes to calibrate each machine before voting starts.
In addition, if a machine is cranky and acts up on Election Day, poll workers calibrate again to get it working properly, he said.
A Nov. 20 recount that confirmed Phelps lost did not alleviate Phelps’ concerns about the county’s voting machines.
Bird argued Nov. 20 to the Ellis County Canvassing Board that the county’s machines were not properly calibrated prior to or after the election, and that some malfunctioned, throwing doubt on the results.
In looking at the Event Log for each voting terminal, Buell said he expected to see Code 0169 “Select Calibrate screen.” But that was not the case. He did see codes for zeroing out any votes already on the machine, for initializing and opening the terminal, and for verifying the personalized electronic ballot, called the PEB.
“There is no event for calibration recorded,” Buell said. “I think that’s a huge deal, because calibration is known to be a problem with these terminals. …It takes 10 seconds to calibrate. So it’s not a huge deal.”
To do it, the person calibrating pops up the calibration screen, touches the four corners of the screen, and then one or two places in the middle, to make sure the machine records each touch in the right place.
It might be that in the software version used by Ellis County there is no event recorded for calibration. Buell considers that possibility very odd, and remote.
Typically the machines would be calibrated on Election Day.
“If you open the iVotronic on Election Day and calibrate, there’s less chance the calibration will slip or degrade,” he said.
In most states, Buell said, each night voting terminals are locked to prevent anyone from inserting malware capable of flipping votes in favor of a candidate. Effective hackers can readily do it without leaving a trace, he said.
Referring to Ellis County, however, Buell said “You all do something different from anywhere else I’ve seen.” Event logs show the machines are opened up two weeks before the election and left open. He found no evidence the Ellis County machines were locked.
“This would concern me,” he said.
Whether calibrated and locked or not, Buell considers the iVotronics unreliable, echoing the findings of a 2007 Project Everest voting study for Ohio that examined electronic voting machines for security vulnerabilities. That analysis found an abundance of technical weaknesses, structural flaws and security failures, which led the researchers to conclude that iVotronic and some other electronic voting machines in use lack basic technical protections needed to guarantee a trustworthy election, their summary said.
University of Michigan Professor J. Alex Halderman, as well as others, has notoriously hacked the iVotronics and other electronic voting machines.
“In my circle I think there is no one who would argue this is a system that ought to be used,” Buell said. “There’s only one computer scientist whose mortgage isn’t paid by a vendor who would say it should be used.”
Ironically, Johnson County’s $10.5 million in new ES&S machines encountered a massive failure in the August primary where a large voter turnout crashed machines and created election havoc.
“That’s how you test ‘at scale,’” Buell said. “You generate a very large number of votes electronically and bang against your software to see if it survives. That’s a no brainer. Obviously it wasn’t done.”
Besides Election Systems & Software, there are two other major manufacturers of electronic voting machines, Diebold and Sequoia.
Ellis County Clerk Donna Maskus, the county’s chief election officer, has defended the Nov. 6 General Election and recount process, but has said the county’s machines are old and need replaced.
Buell says that is not the answer.
In August the world’s oldest hacking conference, Def Con, saw hackers break into voting machines like the kind used in 18 states, without any tools, and get admin access in 120 seconds. That kind of vulnerability says it all, Buell indicated.
“All of the electronic systems are viewed as not appropriate for use,” he said.
Phelps, who represented the 111th District for 18 years, advocates paper ballots. Buell agrees.
“Solving the problem,” Buell said, “would require going back to hand-marked paper.”