Editor's note: An initial version of this article incorrectly stated the Cook County Clerk's office and Chicago Board of Elections had ceased using Sequoia voting equipment and had severed ties with Smartmatic and Sequoia after 2006. This article has been revised to reflect information showing the county and city had continued using Sequoia epuipment until 2018.
A court fight between voting machine maker Smartmatic and Fox News has splashed over into Cook County court, where Fox News is demanding Cook County and the city of Chicago divulge details over alleged past possible problems with voting systems that may have led the local election authorities to sever ties with a former Smartmatic subsidiary.
Last month, attorneys representing Fox Broadcasting and Fox News filed subpoenas in Cook County Circuit Court, seeking a collection of documents from both the Cook County Clerk’s office and Chicago City Hall.
Neither the county nor city are being sued.
The document requests, rather, center on potential issues the county clerk and the Chicago Board of Election Commissioners may have experienced in the mid-2000s with voting machines and systems manufactured and supplied by Sequoia Voting Systems, which was formerly owned by Smartmatic.
Specifically, the subpoenas demand the county and city turn over all communications and documents pertaining to the March 2006 primary election and “any concerns, decisions or recommendations” from the county or the city concerning their experiences with Smartmatic and Sequoia stemming from that election or any others in which the local election authorities may have used voting technology from those companies.
Smartmatic first sued Fox. In its lawsuit, Smartmatic took aim at reports aired by Fox News on claims from former President Donald Trump and his supporters that Smartmatic voting machines played a role in allegedly enabling unproven voter fraud that Trump says cost him the election to current President Joe Biden.
Those election fraud claims have been roundly thrown out of court.
Fox News has claimed it was within its First Amendment free press rights, as a news organization, to report on statements and claims asserted by a former U.S. president during a time of political turmoil.
Smartmatic, however, said those news reports amounted to defamation against the company, because Fox News allegedly knew the claims were not true, but reported them.
Smartmatic said the reports allegedly cost it $2.7 billion.
A judge earlier this year denied Fox News’ attempt to dismiss Smartmatic’s lawsuit.
Fox has countersued, claiming Smartmatic has massively inflated its loss claims, as they claim an analysis revealed Smartmatic was losing millions of dollars annually before 2020.
Both actions remain pending.
It was against that legal backdrop that Fox’s lawyers filed their subpoenas demanding information from the Cook County and Chicago City clerks’ offices.
The subpoenas point to past problems, particularly with Sequoia voting machines.
In 2005, Cook County and Chicago contracted with Smartmatic to provide electronic voting machines, as the local election authorities sought to transition from its traditional punch card voting systems to digital systems. Those transitions were ordered nationwide by Congress in the wake of the turmoil following the 2000 presidential election contest between former President George W. Bush and former Vice President Al Gore.
Cook County and the city of Chicago, however, moved to distance themselves from Sequoia after the machines experienced problems during the 2006 election. According to published reports, the machines severely delayed the reporting of results, which produced concern from commentators and government officials alike that election integrity could fall into question if results were still not known for days following the actual Election Day.
The problems in Chicago also caught the attention of national news commentators, particularly CNN’s Lou Dobbs. In on-air commentary, Dobbs pointed to concerns over Smartmatic’s ties to Venezuela, and the use of the company's technology in elections in that South American country that observers have claimed were rigged to bolster the regime of dictator Hugo Chavez.
The claims and concerns triggered investigations from the federal government, and may have played a role in prompting many U.S. election officials, including Cook County and the city of Chicago, to ditch the companies’ systems.
Smartmatic eventually sold Sequoia.
Following the 2020 election, Trump and his surrogates were citing the past claims related to Venezuela and Chavez to support claims of election fraud.
When Fox News reported on those claims, Smartmatic sued them.
Fox has also been sued by Dominion Voting Systems for $1.6 billion, which also claimed the broadcasters’ reports on the vote fraud accusations damaged its reputation and business.
A spokesperson for the Cook County Clerk’s office said the clerk's office "has had no involvement with the Sequoia company since approximately 2006."
The county clerk, which oversees elections in Cook County’s suburbs, currently uses equipment from Dominion Voting Systems, and has since 2010, the spokesperson said.
Following initial publication of this article, a spokesperson for Smartmatic told the Cook County Record that the clerk's office and the Chicago Elections Board did not stop using Sequoia products in elections until at least following the 2018 elections.
According to website Verified Voting, which tracks election facts in U.S. states, counties and cities, Cook County and Chicago used Sequioa Voting Systems equipment in every election from 2006-2018.
Regarding the subpoena,tThe clerk’s spokesperson said the clerk is aware of the document requests and “is in the process of searching for any documents that would be responsive to the request and will tender any responsive documents when that process is completed.”
In the subpoenas to the city of Chicago, Fox is demanding the city turn over documents and communications related to the March 2006 election; a City Council hearing on the matter that occurred in April 2006; and anything surrounding a letter sent by the Board of Election Commissioners in January 2008 concerning Smartmatic’s sale of Sequoia.
The city clerk’s office did not reply to an email requesting comment.
Fox is represented in the action by attorney Steven Mintz and others with the firms of Mintz & Gold, of New York; Clement & Murphy, of Washington, D.C.; and Kirkland & Ellis, of Chicago and Washington, D.C.