West Henderson High School senior Vivian Rodriguez assists Roy Presley in voting in the March 15, 2016, primary election at Mills River Elementary School in Mills River. Ari Sen / Carolina Public Press

Clear Ballot, one of three companies certified to provide election systems to North Carolina counties for 2020, formally withdrew from the state on Thursday, citing certification and marketing rules that Clear Ballot said perpetuate a virtual monopoly by competitor Election Systems & Software.

Jordan Esten, chief executive officer of Boston-based Clear Ballot, told Carolina Public Press on Thursday that he has asked the N.C. Board of Elections to look into whether ES&S improperly capitalized on its presence in North Carolina with older generations of election equipment, marketing its elections systems to counties before the state certified it this summer.

Separately, N.C. Rep. Verla Insko, D-Orange, issued a letter to the state Board of Elections calling for the board to “to delay this use of (ES&S’ systems) until after the 2020 election.” She pointed to many questions that have been raised about ES&S and its newly certified ballot-marking devices.

Anti-competitive rules and practices?

North Carolina and Indiana are the only states that prevent elections systems makers from marketing systems prior to certification.

Clear Ballot CEO Esten said he thinks this is a foolish law, but his company has followed the rule. Esten said he remains suspicious about ES&S’ compliance because many counties rapidly adopted its new electronic voting system almost immediately after it was certified.

N.C. Board of Elections member Stella Anderson told CPP Thursday that she also had concerns about ES&S having an uncompetitive advantage.

She observed that many counties have chosen to go with ES&S systems even though she felt its product wasn’t strong. “I haven’t met a person yet who thinks the ES&S Express Vote is good technology,” she said.

When asked for comment on Esten’s remarks, ES&S public relations manager Katina Granger told CPP that the company disagreed with Clear Ballot’s assertions about North Carolina.

“Our experience tells us that the market is very competitive – in North Carolina as well as every state and jurisdiction,” she said.

Asked specifically about whether the company or its contractors had marketed systems before certification, in apparent violation of North Carolina law, Granger said, “ES&S absolutely complies with every law and regulation in North Carolina. Competition is strong.”

CPP again asked Granger whether ES&S or its contractors marketed election systems in North Carolina before they were certified. She did not respond prior to publication of this article.

Concerns about competitiveness affecting the choices available to North Carolina counties for election equipment are valid, according to Eddie Perez, a Texas-based voting machine and industry expert who previously worked for election technology and services company Hart InterCivic for 15 years.

Perez is now the global director of technology for the Open Source Election Technology Institute, a nonpartisan, nonprofit organization that is a national leader in increasing the integrity and security of election technology.

If there are no additional changes to state policies along the lines Rep. Insko has addressed, Clear Ballot’s withdrawal will mean county election boards will now have a choice between only two election systems, provided by ES&S and Hart InterCivic.

“There should not have been an unnatural narrowing of choices,” Perez said, expressing concern that politics and anti-competitive policies were having a harmful effect on “something as critical as selecting election technology.”

Withhold electronic voting systems in 2020?

Insko’s letter to the state board warned that too much is at stake in 2020 to proceed with doubts about the integrity of election systems.

“Too many parties have justifiable, serious concerns about (ES&S’ system),” she wrote.

Insko also pointed to issues raised nationwide about ES&S, which was the subject of a highly critical report from NBC News on Thursday and several recent CPP reports. “Board members, as well as members of the public, have not had time to review concerns raised by voters and candidates in other states,” Insko said.

“Your process is being rushed to meet deadlines for the 2020 election when there are other options that can be accomplished quickly for very little money.”

Insko also warned that using ES&S systems while they are under suspicion would make the state vulnerable to contested outcomes.

Instead, Insko called for the state to use optical scan ballots, an option that several counties have selected rather than using touch-screen electronic voting systems in 2020.

“Twenty counties … have already decided to use hand-marked paper ballots that will be counted by optical scan machines,” she said, referencing the choice made by several counties that had previously been using iVotronics electronic voting systems that the state will no longer allow.

“This is the most reliable way to ensure that the vote that is counted is the vote that was cast. With an ample supply of optical scan counting machines, it is also the least expensive substitute. A majority of voters have had some experience using hand-marked paper ballots. For those who haven’t, the instructions are easy to understand, and the actual voting is easy to do.”

Insko told CPP late Thursday that she discussed her concerns with Gov. Roy Cooper earlier this year. In that conversation, the governor expressed concern that losers of close races could use doubts about voting equipment to challenge election results, Insko said. She thinks that’s exactly why the ES&S equipment shouldn’t be used in 2020.

Clear Ballot leaving for now

In its letter to the state Board of Elections, Clear Ballot described a process that has seemed to favor ES&S this year.

“While we looked forward to bringing modern technology to the state and its voters, we have been disappointed with the state’s lack of transparency over the past two years,” CEO Esten said.

He described months of unexplained delays in certifying Clear Ballot’s system, during which the company could not legally market its equipment to North Carolina counties. Esten told CPP that he finds that aspect of North Carolina law “ridiculous.”

In the letter, he described its effect on competition. “Because North Carolina prohibited companies with uncertified systems from selling or marketing in the state, Clear Ballot was unable to communicate with counties for (a) two-year span, giving ES&S a marketing monopoly in the state.”

Additional questions about a modification to Clear Ballot’s system, which Esten told CPP were brought to the state’s attention months ago, had further delayed final approval of its systems and were on the calendar for Friday’s state Board of Elections meeting.

Board of Elections spokesperson Pat Gannon said that matter would be removed from the meeting agenda in light of Clear Ballot’s decision.

So far, only Onslow County had planned to go with Clear Ballot’s system. The election director there was unable to respond to CPP’s request for comment on Thursday.

“We will continue to reevaluate our status in North Carolina over the next year,” Esten said in his letter, “and one day look forward to competing for the business of North Carolina counties, ultimately providing them with technology that works best for their voters.”

Speaking to CPP later, Esten said, “We really do hope to be back.” He described a “great relationship” with election officials in the state and in Onslow County.

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Frank Taylor is the managing editor of Carolina Public Press. Contact him at ftaylor@carolinapublicpress.org.

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