[Published in NC Policy Watch - A project of the NC Justice Center July 30, 2019 by Melissa Boughton]
The North Carolina State Board of Elections plans to move forward with certifying new voting machines ahead of the 2020 elections after a member mistakenly voted Monday night to delay the process to create stricter requirements out of concern for cyber security.
The reversal of course came as a surprise to voting rights advocates and citizens who had praised Board members last night for postponing certification in the name of voter integrity.
Board members had voted 3-2 for the postponement in order to adopt more stringent requirements for digital voting systems at a later meeting in mid-August (a meeting for which they would have provided 15 days’ notice to the public).
However, another meeting notice sent out Tuesday by the Board stated that the group planned to consider a motion this Thursday morning to “rescind [the] decision to notice meeting to amend NC Election Systems Certification Program.”
“Board Member David Black said he misunderstood the motion of Board Secretary Stella Anderson and was not aware it would stop the present certification in its tracks,” said Board Chairman Bob Cordle in an email. “He did not realize that, so he wants to set that vote aside and move ahead with certification. Some board members believe it’s not fair to try to change the requirements at this late date — more than two and a half years after the process started.”
Black is a Republican member of the Board and Cordle is a Democrat. Anderson, another Democratic member of the Board, was the one who made the motion Monday to delay certification.
“Voter trust and confidence in the security and the integrity of any voter system that we put in use in North Carolina is absolutely vital, and I think that has been paramount,” she said at the time.
She proposed delaying the vote so the Board could add this certification requirement: “An electronically assisted marking device or other ballot marking equipment shall produce human readable marks on a paper ballot. A voter must be able to identify his or her intent as evidence by the mark on the ballot.”
Cordle and Republican Board member Ken Raymond voted against the motion. They were outnumbered though when Black and Jeff Carmon, a Democrat, voted with Anderson.
“I have heard from all of you that sent your emails and phone calls,” Carmon said on Monday, remarking on the number of people who advocated to the Board for safer voting systems. “I want to be able to say ‘we the people’ with confidence.”
Cordle and Raymond speculated it could cause problems for the counties that need to make a decision about which machines to purchase before their older devices are decertified at the end of the year.
“I think the counties are going to be running into a real problem,” Cordle said.
He did not hide his displeasure with the vote Monday night.
The other item on Thursday’s agenda is for the Board to again consider certifying new voting machines. The meeting is scheduled for 11 a.m. Thursday in the boardroom on the 3rd Floor of the Dobbs Building, 430 N. Salisbury Street, in Raleigh.
Members of the public can attend in-person or listen to audio of the meeting by calling 213-929-4212 (code 757-613-568).
Democracy North Carolina, an outspoken opponent of certifying new touch-screen voting machines, criticized the State Board on Tuesday about its change of plans.
The group encouraged North Carolinians to reach out to Board members ahead of the Thursday meeting to ask them to only certify machines that tabulate hand-marked paper ballots and limit other new devices for use, at most, by voters with disabilities.
“We’re disappointed that the N.C. State Board appears to be waffling on its decision to only certify those voting machines that allow voters to verify their choices,” said Executive Director Tomas Lopez. “This week hundreds of voters contacted the Board in support of certifying only machines that allow for hand-marked paper ballots or delaying certification until pro-voter modifications could be made to the current certification program.
“Now’s the time for the Board to keep its promise and move forward with the important first step to require that voting systems produce a paper ballot that is reviewable and verifiable by the voter. Alternatively, the Board should certify the machine tabulators for hand-marked ballots generally, and ballot-marking devices with the stipulation that they are used by voters with disability needs.”
The State Board had already postponed the approval of new voting systems in mid-June and amended its certification program to require vendors seeking certification to disclose information about company ownership.
The vendors responded with their ownership information, and the U.S. Department of Homeland Security evaluated it for any potential national security concerns related to foreign ownership. It did not raise any red flags, according to the State Board.
Only voting systems certified by the State Board may be used in North Carolina elections. The certification of new voting systems would empower the 100 county boards of elections to choose equipment that best serves their voters in 2020 and beyond.
Some voting machines used in North Carolina are more than a decade old. About one-third of the state uses touch screen systems, including large, urban counties like Mecklenburg, Guilford and Forsyth.
Currently, Election Systems & Software (ES&S) is the only certified voting systems vendor in North Carolina. Its products have been used in all state elections in recent years. They include the DS200 and M100 precinct tabulators, which read and tabulate paper ballots, as well as the iVotronic, a touch-screen, direct-record-electronic (DRE) machine used on Election Day in about 20 counties.
The real-time DRE technology is what’s being phased out in favor of machines that result in paper ballots for everyone, according to Josh Lawson, former counsel to the State Board.
One concern revolves around the fact that some of the touch-screen machines that could be certified only produce a barcode that does not correlate to a voter’s individual selections on a ballot. This means that voters can’t verify their choices before tabulation.
“You kind of have to trust that that barcode is really what you voted [at the machine],” Lawson said in a phone interview Monday.
Lawson also expressed worries about creating another technology-dependent system at at time of growing cyber security concerns for elections across the country.
The Brennan Center for Justice recently reported that in the 2016 election, Russian hackers compromised election software in North Carolina, opening a gap through which voter rolls could have been altered on the eve of the election – though the software couldn’t be used to change or record votes.
“Episodes like these undermine faith in our democratic system, and steps must be taken to prevent them from occurring again,” the report authors observed.
A Senate Intelligence Committee report released last week also made clear that elections would continue to be at risk.
“Cybersecurity experts have studied a wide range of U.S. voting machines – including both DREs and optical scanners – and in every single case, they’ve found severe vulnerabilities that would allow attackers to sabotage machines and to alter votes,” the report states.
Lawson agreed that what happened in 2016 is likely to happen again in 2020 and beyond as technology continues to evolve.
“There are going to be lots of actors, some international, trying to sow concern in elections and election administration,” he warned.
When the voter can see what they’ve chosen on a ballot before it is tabulated, it takes the potential for critique and concerns about cyber security off the table and promotes public confidence in elections.
“We don’t want the public to have a big question mark,” he said.
Lawson said some of the machines that are being de-certified have been used for 15 years, and the Board must consider that counties may use the new technology they certify for another 15 years. Something that is secure today may not stay secure in a decade, he added.
He said advocates like Democracy NC, the League of Women Voters of Wake County and the Wake County Democrats had it right when they asked for the Board to move away from the new generation of touch-screen machines, known as ballot-marking devices (BMDs).
He also cited financial concerns, noting that the higher tech machines cost in the $3,000 range and that county commissioners would be pressed to purchase hundreds of units. Also, depending on how many units a county can afford, there could be longer lines for voters to cast ballots.
Lawson tweeted praise for the Board after their vote to delay the decision for stricter certification criteria.
“The move towards human-readable paper ballots shows [Gov. Roy Cooper’s] appointees are exercising good judgement to harden voter confidence at a critical time,” he said on Twitter.
He walked that praise back Tuesday.
“If human-readable paper ballots were *right* for security, *right* for budgets, and *right* for public confidence, what could have possibly changed since last night?,” Lawson tweeted. “Doesn’t instill confidence.”
Lopez agreed that the systems under consideration by the State Board raise concerns about security and transparency. Specifically, he added, while the new generation of BMDs improve on the current touch-screen systems, they also raise a new set of security and usability challenges.
“We have urged the State Board to limit touchscreen BMDs for use with voters with accessibility needs and certify only those machines that tabulate hand-marked ballots — the sort of system used in much of the state,” he said. “We also strongly encourage the State Board to provide additional clarity on underlying technical issues like what precisely is being certified, the different components or devices that exist as a part of a given product line, and the distinctions between how the various BMD systems will actually be used by voters.”
When it comes to machines, Democracy North Carolina cares about access, security, and confidence.
“As next year’s elections approach, public interest and concern in systems especially and security practices generally will only increase,” Lopez said. “Voters deserve election infrastructure they can trust now.”
The other systems the State Board is considering certifying are the Clear Ballot: ClearVote 1.4 and the Hart InterCivic: Verity Voting 2.2. Under current state law, DREs will be decertified in North Carolina on Dec. 1, though there is proposed legislation pending at the legislature to delay it.
Karen Brinson Bell, Executive Director of the State Board, said at the meeting Monday night that any of the three vendors and their machines meet the current certification standards. The window of time to certify machines, she added, was closing quickly.
She spoke about the competing pressures to replace aging voting equipment and meet the Americans with Disabilities Act requirements while evaluating the security and reliability of elections. Ultimately though, it will be the counties that decide which equipment is best-suited for their voters (and the counties who pay for it).
Any system in North Carolina, Bell said, would require certain safeguards to protect election security.
Anderson said at the Monday meeting that voters needed to be able to verify their choices on a ballot, and that hundreds of people advocated for hand-marked ballots.
“We’ve heard that very clearly,” she added.
The current certification system requirements were developed in 2015-16 and put in place in January 2017. She said they did not know then what they are dealing with now and that most people understand there are new threats that have to be considered.
“I know this delays the process, but we have to get this right,” Anderson said at the meeting.
She did not immediately respond to an email Tuesday afternoon seeking comment on the Board’s apparent reversal.