When the NC Board of Elections meets Friday, it will make decisions about voting equipment for 2020 elections that could determine the security of the state’s election process and how much confidence voters can have that the system records and tabulates their votes as they intended.
Security experts, federal research agencies and the US Senate agree on best practices for secure election equipment. They recommend that most voters use hand-marked paper ballots, count the ballots using digital scanners and audit the paper ballots for correctness before election results are made official.
Most North Carolinians already vote this way.
However, 23 of the state’s 100 counties use touch screens to cast their ballots, a system that experts consider insecure and outdated because it cannot be effectively audited.
For that reason, North Carolina is set to decertify those systems by Dec. 1.
This week, the state board of elections will consider certifying replacement systems. The decisions the board makes will have a domino effect of consequences for the security, privacy and accessibility of elections across the state.
What the board will decide and how it got here
The state Elections Board will meet Friday, with a brand new chair of the board sitting in on his first meeting. On the surface, the board will make two decisions.
The first is whether to modify the certification requirements for voting systems. The next is to decide which of three systems to approve for use in the state.
The implications for election security and public trust in elections have drawn members of the public and advocacy groups to the half-dozen Elections Board meetings conducted since the end of July.
Tomas Lopez, executive director of Democracy NC, a nonprofit organization that advocates for increased voter participation, told Carolina Public Press that the Board of Elections’ role should be to help the public understand the details of election administration that may be beyond common public knowledge.
“This is deeply technical stuff, and we’re really wading into some sort of deep water, and my hope is that the board will provide the public good guidance on this,” Lopez said.
But members of the board themselves have been apparently unaware of the consequences of their votes.
Moments before the vote to certify the new election systems on July 28, board member Stella Anderson proposed a motion to change the certification requirements for voting systems.
Her concern was centered on a ballot design by voting machine manufacturer Election Systems and Software that would use a bar code to tabulate votes on a ballot rather than a mark that a voter could understand and verify was correct.
Fellow board member David Black voted to approve the motion, supplying the third and decisive affirmative vote. Given its proximity to the vote to certify systems, Black said he did not understand that the motion to change certification requirements would pertain to the systems at hand rather than to systems considered in the future.
A meeting was scheduled to rescind this vote, but the attempt failed due to the resignation of the then-chair of the board, Robert Cordle, for telling a misogynistic joke at a conference of election officials. Without Cordle’s vote, the motion stood.
On Friday, the state board will vote on Anderson’s motion, but this time with the new board chair Damon Circosta, an appointee of Gov. Roy Cooper. The success or failure of the motion hinges on Circosta’s vote.
Circosta told CPP that he did not discuss his upcoming vote with the governor or the NC Democratic Party at any point during his nomination and appointment process and that he is still gathering the facts that will shape his vote.
Public comment to the state Board of Elections, made by activists and advocacy organizations like Democracy NC and the League of Women Voters, has been favorable of Anderson’s motion.
What could change based on board vote
The modification in question is about acceptable ballot designs and how machines count the votes on the ballots.
If approved, the last-minute change would exclude equipment from ES&S, which has had a monopoly in North Carolina since 2006. The company would still be able to do business in the state with the systems it already has certified but would not be allowed to bring in its new touch-screen voting machine, resulting in fewer sales and fewer profits.
Each vendor under consideration — including Clear Ballot, ES&S and Hart InterCivic — uses a version of touch-screen voting machines called ballot-marking devices. On BMDs, voters input their choices on a touch screen, then the BMD prints out their selections.
Unlike the other vendors, the ES&S voting machine would create a “summary card” ballot that is shaped differently from a standard-sized paper ballot. It uses bar codes to count votes rather than recognizing a filled-in oval next to candidates’ names as on standard ballots.
In effect, a bar code ballot has two votes on it — the summary text of the voter’s choices and the bar code that is read by the scanner.
The “bar code ballot” problem has been a flashpoint of public outcry around the country due to concern over election security. A bar code can scan in different votes from the text represented on the summary card, which is the portion voters can read. This could create an avenue for election fraud that the voter cannot catch.
Audits would be able to find this kind of fraud, but North Carolina does not conduct such audits, nor has there been any movement to implement them by 2020. The audits would also be more complex than if standard-format ballots were used.
The audits, though, would only identify errors if the voters correctly verify the text on their ballots — that is, if they review their ballots to make sure the machine prints them properly and are able to catch any errors. Research on multiple kinds of voting procedures shows that even when voters check their ballots, they often miss errors.
Computer scientists also highlight an additional problem with bar code ballots not often addressed by the public. Bar codes are essentially a coded data input into a computer, and researchers have been able to hack computers using bar codes to manipulate bar code scanners.
Some of the public comments submitted to the state board opposing the use of bar code ballots overstate the security risk. This perceived risk, however, should also be accounted for by the state board, according to interviews with both Anderson and Lopez.
“One of the big factors here is, do people believe that their voting system works for them?” Lopez said. “Now, part of that is a public education job, but our expectations also have to come with the understanding that election administration is really complicated.”
Anderson’s motion would prevent any voting machine vendor on North Carolina from using a bar code ballot in any of its systems.
By the nature of the voting systems being considered, if Anderson’s motion passes, it would have two consequences Anderson did not intend but would bring North Carolina in line with consensus best practices for election administration and security.
First, the entire state would move to a hand-marked paper ballot system. ES&S was the only vendor selling a system that was advertised to use a voting machine for every voter. Most North Carolina counties currently provide a single voting machine per precinct for use by voters with sight, cognitive, motor or other disabilities that preclude them from filling in a hand-marked paper ballot. The vast majority of voters mark their ballots by hand, and that system would be preserved in Clear Ballot’s and Hart InterCivic’s proposed systems.
Independent assessments of voting systems in Georgia and Pennsylvania show that hand-marked paper ballot systems are significantly cheaper than machine-for-all systems. The NC Board of Elections has not yet completed the cost analysis for the proposed systems.
Effects for voters with disabilities
The second consequence of approving Anderson’s motion would be to ensure that ballots cast on voting machines would look identical in format to ballots cast by hand. This is a particular concern to voters with disabilities and is the reason that Lawrence Carter, president of the Raleigh/Wake Council of the Blind, wrote to the Board of Elections. No other disability rights group has issued a public statement to the board on this issue.
If the ballots of voters with disabilities look different from the ballots of other voters, it could ruin the secrecy of those voters’ ballots or target those ballots for manipulation. This is the nature of a recently filed lawsuit against the Maryland Board of Elections by the National Federation of the Blind.
The secrecy of the ballot may not be a major concern in North Carolina, as ballots are already tied to all voters who vote early or mail in their ballots. Early and absentee voters account for over 60 percent of North Carolina voters. The crux of the problem, in this case, would be the differential treatment between voters with and without disabilities that require the use of a voting machine.
Anderson did not start out with a mission to have hand-marked paper ballots for all, she said, or even to have the ballot styles match between the BMD and hand-marked ballots.
“I really did start out thinking that if there’s a vendor that has a solid voting system that uses a ballot marking device if the county wants to deploy it countywide, if it’s a certified piece of equipment, they should get to,” Anderson said.
Technically, it could still be possible for counties to request voting machines for all voters from either Clear Ballot or Hart InterCivic, though Anderson said she does not expect that counties would use those vendors’ systems in a way that is not advertised.
In an email to CPP, Hart InterCivic said it would sell a machine-for-all system if requested. Clear Ballot did not respond. ES&S also did not respond to requests for comment.
Anderson updated the motion early Tuesday to include language explicitly requiring ballot-making devices to produce ballots identical in format to hand-marked paper ballots.
That would mean moving all North Carolina counties, given the current systems under consideration, to voting using hand-marked paper ballots for 2020. Anderson also included a requirement that, even if a North Carolina county were to adopt a voting-machine-for-all system, that system would also be required to provide an option for voters to cast paper ballots by hand if they prefer.
Consequences of board vote for no change
If Anderson’s motion does not pass, ES&S will be at a clear competitive advantage over Clear Ballot and Hart InterCivic.
CPP interviewed the election directors of Guilford, Mecklenburg, New Hanover and Wake counties. Each expressed a preference for ES&S’ equipment, either due to a familiarity with the vendor or because the county has already purchased the equipment ES&S has certified in the state.
Switching to another vendor could be prohibitively expensive, especially since voting machine purchases tend to happen in 10- to 15-year cycles.
Counties like Wake, which recently purchased more than $1.8 million of ES&S ballot scanners, will not be able to purchase new BMDs for voters with disabilities without switching over their entire system to a new vendor.
Gary Sims, director of Wake elections, said that though the county’s current BMDs are old, they are in good shape. Not many voters use them, and they are well-maintained. Sims said he expects to be able to use the machines, called AutoMARKs, indefinitely.
Charlie Collicutt, Guilford County elections director, said he thinks that if ES&S’ new voting machines are certified, they would be used in the same ways that the current, outgoing systems are used — a mix of using the BMDs for all voters, just for voters with disabilities, or for all voters during early voting then for a limited number of voters on Election Day.
The use of the BMDs across entire counties, especially large counties, would make it impossible to properly audit election results across the entire state, according to elections systems expert Philip Stark, a statistics professor at the University of California.
Stark, who was central in developing the gold-standard election audit, the risk-limiting audit, or RLA, wrote a paper with two other elections experts describing why elections using ballot-marking devices cannot create a trusted paper trail.
“Those counties that primarily have hand-marked paper will be able to get the highest confidence that an RLA is confirming the actual result rather than confirming some other result,” Stark said.
The concern is that the ballot may be inaccurate to what the voter intended either due to machine error, the result of hacking or insider manipulation.
“The problem is the reliability with which a BMD printout reflects what voters indicated to the machine,” Stark said.
If a voter does find a problem, the paper states, there is no mechanism by which a voter’s concern will be translated into effective action by the state. There is currently no policy in place for translating a voter’s complaints about a malfunctioning machine into an investigation.
Moreover, if one machine is faulty, others are likely to be faulty. And, if a proper investigation were conducted and an error or wrongdoing was found, the consequence would be to run an entirely new election – perhaps on the same machines.
According to Stark, BMDs introduce uncertainty into elections, regardless of whether or not they print a bar code summary card as a ballot. However, having accessible voting machines like BMDs is necessary to provide voters with disabilities their constitutional right to a vote.
“The hope would be that by keeping the number of votes cast on these devices relatively small, that, one, they’re a less attractive target for hacking and malware,” Stark said. “Two, any problems with them are less likely to affect the overall outcome of an election. Three, those users who use it use it in a more careful, mindful fashion so the paper trail is more accurate as a result of that.”
Running out of time
Regardless of what systems are certified, counties have a small window to put them into place before 2020. Counties must demonstrate the system to its residents and must do “acceptance testing” by using a new system in at least one precinct in a real election – which will likely be the November municipal elections in most counties.
Collicutt, like many other county election directors, has been prepared to bring in new voting equipment for years. Delays by the legislature and the state Board of Elections have pushed the possibility of certifying new voting systems in time for 2020 to the brink.
“Now it’s at the 11th hour, and we’ve been told that we’ve waited too long,” Collicutt said.
“Well, we’ve been told we were going to have something for a very long time. It’s like, you have the wedding venue and the bride never shows up.”
There is a chance that the domino that started it all — the decertification of the current electronic voting machines in use in North Carolina — may be pulled back. The state legislature is considering again delaying decertification of the old equipment, extending its use until 2021.
An elections watchdog group, Protect Democracy, submitted a letter to the state Board of Elections threatening litigation if the old machines were used in 2020. The letter claims that the continued use of the old machines is a violation of the “constitutional rights of voters to access a reliable voting system that will ensure that their votes are properly counted.”
Similar lawsuits challenging the constitutionality of voting on the old technology are active in federal court in Georgia and state court in Tennessee.
The judge overseeing the federal case in Georgia, Amy Totenberg, issued a ruling on Aug. 15 that could set a precedent for similar cases around the country.
“(A) wound or reasonably threatened wound to the integrity of a state’s election system carries grave consequences beyond the results in any specific election, as it pierces citizens’ confidence in the electoral system and the value of voting,” she wrote in the order prohibiting Georgia from using its outdated election machines in 2020.
The constitutionality or practicality of the widespread use of BMDs remains an open question.
To view ballot styles
To see the different styles of ballots that would be used by the various types of machines, try these links:
Editor’s note: This article was updated at noon on Tuesday, August 20, several hours it was initially posted, to address a change that NC Board of Elections member Stella Anderson made Tuesday to her own motion. This change is reflected in additional information that now appears at the end of the section on voters with disabilities.
You can strengthen independent, in-depth and investigative news for all of North Carolina
Carolina Public Press is transforming from a regionally focused nonprofit news organization to the go-to independent, in-depth and investigative news arm for North Carolina. You are critical to this transformation — and the future of investigative and public interest reporting for all North Carolinians.
Unlike many others, we aren’t owned by umbrella organizations or corporations. And we haven’t put up a paywall — we believe that fact-based, context-rich watchdog journalism is a vital public service. But we need your help. Carolina Public Press’ in-depth, investigative and public interest journalism takes a lot of money, persistence and hard work to produce. We are here because we believe in and are dedicated to the future of North Carolina.
So, if you value independent, in-depth and investigative reporting in the public interest for North Carolina, please take a moment to make a tax-deductible contribution. It only takes a minute and makes a huge difference. Thank you!