February 28, 2024

Did NJ election officials fail to respect court order to improve security of elections?

Part 2 of 4
The Gusciora case was filed in 2004 by the Rutgers Constitutional Litigation Clinic on behalf of Reed Gusciora and other public-interest plaintiffs. The Plaintiffs sought to end the use of paperless direct-recording electronic voting machines, which are very vulnerable to fraud and manipulation via replacement of their software. The defendant was the Governor of New Jersey, and as governors came and went it was variously titled Gusciora v. McGreevey, Gusciora v. Corzine, Guscioria v. Christie.

In 2010 Judge Linda Feinberg issued an Opinion. She did not ban the machines, but ordered the State to implement several kinds of security measures: some to improve the security of the computers on which ballots are programmed (and results are tabulated), and some to improve the security of the computers inside the voting machines themselves.

The Plaintiffs had shown evidence that ballot-programming computers (the so-called “WinEDS laptops”) in Union County had been used to surf the Internet even on election day in 2008. This, combined with many other security vulnerabilities in the configuration of Microsoft Windows, left the computers open to intrusion by outsiders, who could then interfere with and manipulate the programming of ballots before their installation on the voting machines, or manipulate the aggregation of results after the elections. Judge Feinberg also heard testimony that so-called “Hardening Guidelines”, which had previously been prepared by Sequoia Voting Systems at the request of the State of California, would help close some of these vulnerabilities. Basically, one wipes the hard drive clean on the “WinEDS laptop”, installs a fresh copy of Microsoft Windows, runs a script to shut down Internet access and generally tighten the Windows security configuration, and finally installs a fresh copy of the WinEDS ballot software. The Court also heard testimony (from me) that installing these Guidelines requires experience in Windows system administration, and would likely be beyond the capability of some election administrators.

Among the several steps the Court ordered in 2010 was the installation of these Hardening Guidelines on every WinEDS ballot-programming computer used in public elections, within 120 days.

Two years after I testified in the Gusciora case, I served as an expert witness in a different case, Zirkle v. Henry, in a different Court, before Judge David Krell. I wanted to determine whether an anomaly in the June 2011 Cumberland County primary election could have been caused by an intruder from the Internet, or whether such intrusion could reasonably be ruled out. Thus, the question became relevant of whether Cumberland County’s WinEDS laptop was in compliance with Judge Feinberg’s Order. That is, had the Hardening Guidelines been installed before the ballot programming was done for the election in question? If so, what would the event logs say about the use of that machine as the ballot cartridges were programmed?

One of the components of the Hardening Guidelines is to turn on certain Event Logs in the Windows operating system. So, during my examination of the WinEDS laptop on August 17, I opened the Windows Event Viewer and photographed screen-shots of the logs. To my surprise, the logs commenced on the afternoon of August 16, 2011, the day before my examination. Someone had wiped the logs clean, at the very least, or possibly on August 16 someone had wiped the entire hard drive clean in installing the Hardening Guidelines. In either case, evidence in a pending court case–files on a computer that the State of New Jersey and County of Cumberland had been ordered to produce for examination–was erased. I’m told that evidence-tampering is a crime. In an affidavit dated August 24, Jason Cossaboon, a Computer Systems Analyst employed by Cumberland County, stated that he erased the event logs on August 16.

Robert Giles, Director of the New Jersey Division of Elections, was present during my examination on August 17. Mr. Giles submitted to Judge David Krell an affidavit dated August 25 describing the steps he had taken to achieve compliance with Judge Feinberg’s Order. He writes, “The Sequoia hardening manual was sent, by email, to the various county election offices on March 29, 2010. To my knowledge, the hardening process was completed by the affected counties by the required deadline of June 1, 2010.” Mr. Giles does not say anything about how he acquired the “knowledge” that the process was completed.

Mr. Giles was present in Judge Feinberg’s courtroom in 2009 when I testified that the Hardening Guidelines are not simple to install and would typically require someone with technical training or experience. And yet he then pretended to discharge the State’s duty of compliance with Judge Feinberg’s Order by simply sending a mass e-mail to county election officials. Judge Feinberg herself said that sending an e-mail was not enough; a year later, Mr. Giles has done nothing more. In my opinion, this is disrespectful to the Court, and to the voters of New Jersey.