Tarboro voter 2018
Yashika Jones casts her ballot Tuesday at the Edgecombe County Administration Building in Tarboro, while precinct assistant Dell Everette looks on. Calvin Adkins / Wmforo

Amid threats of litigation from all sides, the North Carolina State Board of Elections voted 3-2 Friday afternoon to certify a voting system that experts say is insecure, voting rights groups advocated against and many public comments opposed.

Chairman Damon Circosta, a Democrat, in his first meeting after being appointed by Gov. Roy Cooper, voted against a motion to make voting system certification requirements more stringent. The board’s two Republican members, David Black and Kenneth Raymond, voted with Circosta.

The new certification requirements, proposed by Dr. Stella Anderson and supported by fellow Democrat Jeff Carmon III, would have precluded one voting-machine vendor, Election Systems and Software (ES&S), from having its system certified.

The room for Friday’s meeting was packed with voters and advocates from civil rights and voting rights organizations, such as Democracy NC, which seeks to improve voter turnout in elections.

“This is disappointing,” Democracy NC executive director Tomas Lopez said. “But the decision on what ultimately gets purchased is with the counties, and with the county boards of elections in particular.”

Two counties, Davie and Transylvania, submitted letters to the board asking that existing certification requirements not be changed. Both counties use voting-machine-for-all systems, using old technology that the state will decertify on Dec. 1.

Guilford and Mecklenburg county election officials have also expressed interest in replacing their current voting-machine-for-all systems using newly certified technology, according to Anderson.

All four counties have indicated the desire to use the newly certified ES&S voting machine for every voter.

Circosta referenced the positions of county election directors as a deciding factor for his votes, though he did not name the county officials with whom he had contact.

Expect lawsuits over voting systems

But the decision to purchase voting machines for every voter will likely trigger litigation against counties and potentially the state.

The president of the North Carolina chapter of the NAACP, Rev. Dr. T. Anthony Spearman, indicated that his organization would consider litigation if any county approves a voting-machine-for-all system.

Marilyn Marks, the executive director for a nonprofit, election-integrity watchdog group Coalition for Good Governance, is currently suing Georgia in federal court over that state’s voting system, addressing similar issues of security brought up in North Carolina.

“The Coalition for Good Governance would feel an obligation to immediately launch a legal challenge any decision to purchase barcoding ballot marking devices in NC,” Marks wrote in a statement to Wmforo.

“Barcode balloting cannot pass constitutional muster… There are numerous other constitutional violations of the barcode balloting systems that courts must address if election officials prefer to favor vendors over voters.”

Protect Democracy, which is currently in litigation with South Carolina over an insecure voting system, is going to carefully consider the systems the NCSBE certified today, according to attorney Jessica Marsden.

Protect Democracy will research legal options and will advocate counties to adopt hand-marked paper ballot systems on a county-by-county basis, she said.

“The Board of Elections today opened the door to unproven new voting technology that cannot be properly audited,” Protect Democracy wrote in a statement.

“Fortunately, today’s decision does not mean that any voter will have to use that system. It’s now up to each North Carolina county to ensure that its voters have access to a secure and reliable voting system based on paper ballots.”

The North Carolina chapter of the League of Women Voters and Common Cause NC both indicated that their organizations would advocate on a county-by-county level for the adoption of hand-marked paper ballot systems.

What’s at stake with voting machines?

The pushback against using voting machines for all voters is two-fold: cost and security.

Analyses from Georgia and Pennsylvania show that voting-machine-for-all systems are more expensive than systems with hand-marked paper ballots.

Reports from the Senate Intelligence Committee, the National Institute of Standards and Technology, several state review boards, and the consensus of election security experts identify that the most secure elections are run using hand-marked paper ballots and checked using a risk-limiting audit.

Voting machines that produce paper ballots, like the ones certified today in North Carolina, would be available to the limited number of voters with disabilities who cannot mark a paper ballot by hand. These voting machines are called ballot-marking devices (BMD) because they mark the ballot instead of the voter doing it themselves.

ES&S’s device is different than those of other vendors seeking voting system certification in the state, Clear Ballot and Hart InterCivic.

First, ES&S proposes its system be used as a BMD-for-all system, much as its previous machines were used for all voters.

Clear Ballot and Hart InterCivic advertise their systems as using BMDs only for voters who prefer the technology and for voters with disabilities.

The second difference is that ES&S’s BMD, called an ExpressVote, does not print a full-faced ballot. Clear Ballot and Hart InterCivic do.

Instead, the ExpressVote prints a “barcode ballot,” which is shaped differently than a hand-marked paper ballot and uses barcodes to record voter selections. The ballot also has text of the voter’s selection lower down on the card, though it is the barcode that holds the official tally of the vote.

The combination of BMD-for-all and barcode, summary-card ballots create a number of security concerns with ES&S’s system, which were outlined in public comments and research submitted to the board by members of the public.

Why the chairman voted to certify ES&S barcode system

After the meeting, a reporter asked Circosta if he agreed with the security concerns.

“I disagree,” Circosta said. “I fundamentally disagree.”

Members of the board were asked to identify the information and experts they used to come to their decisions. CPP asked Circosta for references to the research he used to form his decision. He did not respond, but instead provided, through the board’s press secretary, links to the Davie and Transylvania county statements advocating that system certifications not be changed.

“We believe it is important to cover all sides of this issue,” the email read.

It is unclear why some counties prefer BMD-for-all systems.

A reporter asked Circosta why he voted against Anderson’s motion, which would have prevented the use of ES&S’s barcode ballot system.

“When I took the oath, I promised to do what’s best for the voters,” Circosta said.

“I honestly believe we needed to do this to move forward. I am 100 percent committed to a paper ballot election in 2020 and beyond. This was the best way to get there right now.”

The state legislature is set to consider a bill that would extend the use of the old voting machines, which do not produce a paper ballot, through 2020.

On a call last week involving NC Board of Elections staff – including Anderson, election director Karen Brinson Bell, acting general counsel Katelyn Love, voting system manager Brooks Jones, chief information officer Brian Neesby and others, Circosta characterized the worst possible outcome being the continued use of the old voting machines in 2020, according to Anderson.

Circosta felt that the failure to certify ES&S would be the trigger for the state legislature to delay decertification of the old machines, an ES&S product called iVotronics, through the 2020 elections.

But when CPP asked Circosta whether his vote was motivated by a fear that the legislature would push back decertification of iVotronics depending on the outcome of today’s vote, Circosta had a different answer.

“I have heard nothing in that regard,” Circosta said.

Circosta also commented on the security of ES&S’s system.

“Every time you introduce technology into any system, you’ve got a technology concern,” he said.

“We have to do everything we possibly can to mitigate that. But I don’t believe that we as a state or as a community are going to remove CPUs or microprocessors from our election systems. We use them in our pollbooks. We use them in our tabulators. We use them in our ballot-marking devices.”

Despite these remarks, this is not what advocates and voters present at the meeting argued.

None of them advocated for the removal of all technology from an election. Instead, the discussion was over the most secure use of technology.

A question of auditing

When using hand-marked paper ballots, the ballots are read by a machine – a scanner that tabulates the votes.

The reason hand-marked paper ballot systems are considered more secure is that hand-marked paper ballots offer the best opportunity for meaningful audits of the results that are calculated by the machines.

Election expert’s concern over BMDs, and especially over ES&S’s ExpressVote BMD, is whether they create a trusted paper trail. Philip Stark, an election expert and statistician at University of California Berkeley that helped create the gold-standard election audit, called risk-limiting audits, has published several papers showing that the audits cannot produce trusted results using BMD ballots.

Regardless, Circosta said the state board will move quickly to implement risk-limiting audits. For counties using hand-marked paper ballots, this will be a step forward for election security.

Anderson, who votes in Watauga county, is fully confident in the outcome of her county’s elections. They use hand-marked paper ballots. But Anderson said she cannot be confident in statewide elections, when counties like Mecklenburg use machine-for-all systems.

The problem with the use of BMDs is collective, not individual. A meticulous voter who checks the ballot that a BMD prints may be reasonably sure her vote will be cast and counted correctly. But research has shown across voting systems that voters rarely check their ballots in this way, and even when they do, they often do not catch errors.

The security – and effective auditing – of an election is not based on whether some voters can be confident their votes were counted correctly. The security is based on whether a vast majority of voters can be sure their ballots were cast with the votes they intended and counted accurately.

“We can’t audit our way out of this problem,” Anderson said.

ES&S’s barcode ballots complicate election audits, even beyond Stark’s position that BMDs in general do not produce the trusted paper trail necessary for good audits.

A standard audit would check that what the scanner counted as a vote matched the human-readable text on a ballot.

In a barcode ballot, an audit would have to check that the barcodes were accurately scanned in the initial count and that the text of the ballot matches the selection in the barcode. That two- step process requires a different audit procedure than for full-face ballots.

In order to properly deploy risk-limiting audits, North Carolina would have to use different audit procedures for counties using ES&S’s ExpressVote and counties relying on hand-marked paper ballots.

The state board has not yet put forward a proposal or public statement that it is considering multiple types of audits to account for the barcode ballots.

To increase confidence in elections using BMDs, the state and county boards of elections should be putting policies in place to encourage voters to rigorously check their ballots, Anderson said.

Policies should also be put in place to address the potential situation of several voters finding errors on their printed ballots, indicating a machine may not be printing ballots reflective of voter choices, she said.

Neither policy point has yet been under discussion, according to Anderson.

Elections around the world are run on hand-marked paper ballots. Gerald Givens Jr., President of the Raleigh-Apex branch of the NAACP, served in Iraq during a national election.

“I was there when the Iraqis voted and voted on paper ballots,” Givens said. “We secured their vote. We should have the same security in the United States of America.”

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Jordan Wilkie is a former Report for America corps member and former reporter at Wmforo. To reach the newsroom, email us at [email protected].

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