Recent Texas elections have been tainted by touchscreen voting & hash validation problems involving voting machine vendor ES&S
By Jennifer Cohn
In 2018, Beto O’Rourke, a Democratic member of the U.S. House of Representatives, tried to unseat Ted Cruz, a Republican member of the U.S. Senate.
The race between O’Rourke and Cruz received significant media attention and was the most expensive U.S. Senate election in history up to that point.
O’Rourke, a Texas native and Columbia University graduate, had been elected to the U.S. House of Representatives in 2012.
When he decided to shift gears and run for the U.S. senate, no Democrat had been elected to statewide office in Texas since 1994, the longest losing streak in the country.
During the 2018 midterm election, O’Rourke consistently drew large crowds in Democratic strongholds and even in conservative districts that Trump had won.
His video explaining his position on “take a knee” and police brutality against unarmed black men went viral.
In June 2017, O’Rourke received his first major organizational endorsement from End Citizens United.
In the third quarter of 2018, O’Rourke’s campaign raised $38 million, more than three times the amount brought in by Cruz. It was an all time fundraising record for a U.S. senate campaign. O’Rourke said the donations had come from 802,836 individual contributions, mostly from Texas.
Ted Cruz had raised only $12 million during the third quarter of 2018.
Cruz, a graduate of Princeton University and Harvard Law School, had first won his senate seat as a “Tea Party” Republican in 2012. His victory in the Republican primary that year was considered one of the greatest upsets of 2012. Here is how the Washington Post described it:
“Wednesday we are handing out the Fixy — the coveted political awards that we, well, made up — for the biggest upset of 2012. While there were several good options to choose from, one stood above the rest: Ted Cruz’s upset of Lt. Gov. David Dewhurst in the Texas Senate Republican primary. His upset was a true grassroots victory against very long odds.”
Four years later. Cruz was the top pick of the Religious Right for the 2016 Republican presidential nomination. But it was Trump who shocked the world by winning both the nomination and the presidency.
Cruz, who went back to the senate, became one of Trump’s closest allies in Congress, even though Trump had nicknamed him “Lying Ted” and insulted his wife’s looks during the primary.
In the runup to the 2018 race between Cruz and O’Rourke, a September 19 Ipsos online poll done in conjunction with Reuters and the University of Virginia showed O’Rourke leading Cruz by two points.
In late October, however, Ipsos favored Cruz by 5.
Nate Silver gave Cruz a 7 in 9 chance of winning.
RCP’s polling average gave Cruz a 6.8% lead.
O’Rourke hoped for the kind of upset that Cruz had enjoyed in 2012.
On October 25, the state’s two largest newspapers, the Dallas Morning News and the Houston Chronicle, endorsed O’Rourke.
But during the election, there were numerous reports that Hart eSlate voting machines throughout the state were switching voters’ selections in the senate race. (Texas uses voting machines supplied by Hart and ES&S, not Dominion Voting.)
A Texas voter and writer named Leah McElrath captured the problem on her cell phone and posted it to Twitter, where it went viral.
The Texas Civil Rights Project heard reports of vote-switching from 21 voters in seven counties: Harris, Travis, McLennan, Montgomery, Tarrant, Matagorda, and Fort Bend.
The vendor (Hart) and the Texas Secretary of State dismissed the problem as “user error.”
O’Rourke set a record for the most votes cast for a Democrat in Texas history. But the official result showed that Cruz had defeated O’Rourke by less than 3 percent.
Even if the official margin of victory had been smaller, a statewide manual recount would have been impossible because, according to Verified Voting’s Verifier tool, about half the state used paperless voting machines.
In February 2018, the Center for American Progress (CAP) had given Texas a D grade on the issue of election security, citing its continuing use of these paperless voting machines.
Without paper ballots (preferably marked by hand), there is no software independent record of voter intent that can be hand counted (in an audit or recount) to confirm the legitimacy of the electronic result.
Thus, in March 2018, Trump’s own Secretary of Homeland Security, Kirstjen Nielsen, had agreed with Senator Ron Wyden that paperless voting machines constitute a threat to national security.
O’Rourke did not attempt to challenge his loss, which disappointed some of his supporters.
The following year, the Republican-led Texas legislature rejected a bill that would have banned Texas’s paperless voting machines.
In December 2020, the Atlantic reported that “Texas is the only state that has continued to buy unauditable insecure paperless DREs after they were called a national security concern by the Trump DHS,”
In March 2021, I reported for WhoWhatWhy that Texas counties had allowed ES&S to conduct its own hash validation testing, the crucial process that election officials are supposed to use to confirm that a vendor hasn’t supplied them with malicious software. As one election-system examiner remarked, having ES&S conduct its own hash testing is the “ultimate ‘fox watching the henhouse’ scenario. It is them [ES&S] self-certifying systems for use.”
Despite Texas’s own glaringly insecure voting system, both Cruz and Texas Attorney General Ken Paxton (also a Republican) had the audacity to object to the certification of other states’ votes in the 2020 presidential election because those states had elected Biden rather than Trump. To my knowledge, neither Cruz nor Paxton has lifted a finger to improve the security of elections within the state of Texas.
In the run-up to the 2020 election, Democrats had proposed an election-security bill called the SAFE Act, which would have banned paperless voting systems (like those used in Texas) and required robust manual election audits for all federal races. But the Republican party blocked it only to complain about election-system “insecurity” when the outcome of the presidential race didn’t go as they had planned.