Candidate sues DuPage Election commission for records

 
 
Updated 10/9/2018 3:53 PM
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  • Jean Kaczmarek

    Jean Kaczmarek

A county clerk candidate has filed a lawsuit against the DuPage Election Commission to obtain the serial numbers of optical scan voting machines the agency received as part of a settlement with a former vendor.

Jean Kaczmarek, the Democratic challenger for county clerk in the Nov. 6 race against incumbent Republican Paul Hinds, says she wants the serial numbers to track the origin of the "antiquated, castoff machines" the commission got from Liberty Systems LLC.

Liberty Systems gave the commission 118 voting machines to replace devices damaged during this year's primary election.

"Where did these used voting machines come from?" Kaczmarek said in a statement. "The machines may have been purchased on eBay or from an e-cycling firm. However, they most likely are trade-ins from downstate Illinois counties who are clients of Liberty Systems. Citizens deserve to know. It is clearly a matter of accountability."

The Glen Ellyn resident originally sought the information in June through a Freedom of Information Act request, which the commission denied.

But according to the lawsuit filed Tuesday, the commission previously released serial numbers in response to FOIA requests in 2007 and 2008.

"What is it about these particular machines that DuPage doesn't want us to know?" Kaczmarek said. "What are they hiding?"

A total of 167 optical scan voting machines were damaged by ballot-like cards provided by Liberty Systems for the spring primary. The so-called "ender cards" were too thick to run through the voting machines that read paper ballots -- a mistake officials didn't discover until after the polls closed on March 20.

As a result, it took more than eight hours to count all the ballots, leaving some candidates uncertain about the outcome of their races until early the next morning. The blunder also caused widespread embarrassment for the county.

Of the machines that were damaged, 57 were repaired by Liberty Systems as part of a settlement agreement that also terminated the company's contracts with the commission.

Kaczmarek said 110 machines the commission bought in 2001 were broken beyond repair; Liberty Systems in June delivered 118 "like kind" models to the agency.

Daniel Massoglia, Kaczmarek's attorney, said his client wants to see if DuPage "got a bad deal" with the used machines

"We believe that the illegal withholding (of the serial numbers) is designed to avoid scrutiny on this issue, not out of good faith application of the law," he wrote in an email to the Daily Herald.

The two-count lawsuit is alleging violation of FOIA and willful violation of FOIA. In addition to the release of the records, the lawsuit seeks attorney's fees, a statutory penalty of $2,500 to $5,000 for each violation and "any other relief the court should deem appropriate and just."

Reached by phone on Tuesday, Pat Bond, the commission's attorney, said he hadn't seen the lawsuit.

"The election commission's priority is maintaining the integrity of the election process," he said. "We're not going to disclose any information, including serial numbers, that can jeopardize that."

Previously, Bond said the commission couldn't release the serial numbers "to protect and preserve the integrity" of the machines.

But Massoglia said the commission doesn't have a legitimate reason why releasing serial numbers is a security threat.

"The commission's position that the numbers are non-FOIAable 'private information' is completely out of line with the statute, which considers private information as relating to personal privacy, not pieces of equipment," Massoglia said.

The winner of the Nov. 6 election between Kaczmarek and Hinds will oversee the clerk's office when it's merged early next year with the election commission. State law was changed to allow the commission to be dissolved after Jan. 1 and its functions transferred to the clerk's office.

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