- Touchscreen voting is bad for elections and the State Board of Elections has failed NC voters by allowing their use
- The NAACP has sued the State Board of Elections and several county boards over their use of the ExpressVote touchscreen voting system
- Courts are not the proper venue to handle these kinds of decisions
Touchscreen voting systems suffer from numerous defects and the State Board of Elections (SBE) should not have approved of their use in North Carolina Elections. However, an NAACP lawsuit seeking to remove them is a wrong-headed attempt to have the court usurp the legislature and SBE’s proper roles as judges of the technical merits of election systems.
The State Board of Elections has failed to protect voters from touchscreen voting systems
North Carolina has experienced problems with touchscreen voting systems, the most infamous of which was an incident in Carteret County in 2004 when a touchscreen system lost over 4,500 votes. That same year, touchscreen voting machines lost about 300 votes in Buncombe County.
Perhaps even worse, touchscreen machines have a problem with recording votes for the wrong candidates. Voters across the state reported such vote flipping in 2018. State Board of Elections spokesman Pat Gannon said that the reported problems were “not widespread” based on the fact that they only “get a few reports about this in each election.” However, that assessment is based on incidents in which voters noticed the errors and reported them to election officials. A University of Michigan study found that over 90 percent of voters failed to detect errors produced by touchscreen voting machines, even for the ballot marking devices (BMDs) that produce paper receipts of the voters’ votes. As the study noted:
Voters missed more than 93% of the errors,” says Halderman. “In jurisdictions where all voters use BMDs, a close election result might be changed without enough voters reporting errors to alert officials that there was a systemic problem.”
Larry Norden, with the Brennan Center for Justice in New York, claims that the reported vote flipping was the result of old technology and that newer systems, such as those approved by the SBE last year, are less likely to have that problem.
The State Board of Elections, and especially SBE chair Damon Circosta, has had several chances to spare North Carolina voters from touchscreen machines by only approving voting systems that used hand-marked paper ballots. However, they have failed to do so over and over again.
Even the SBE repeated failures would not be a problem if county election boards chose to purchase hand-marked paper ballot systems or if county commissioners had refused to provide funds to purchase touchscreen voting systems. Unfortunately, several counties, including Mecklenburg, decided to purchase new touchscreen voting systems.
Yet another election-related lawsuit in North Carolina
Considering both the controversy that surrounds touchscreen voting systems and the prevalence of lawsuits over elections in North Carolina, perhaps it was inevitable that there would be a lawsuit over touchscreen voting.
That inevitability occurred on April 15, when the North Carolina chapter of the NAACP filed a lawsuit in the NC Superior Court against the SBE and 20 county boards of elections that use the ExpressVote BMD system. The suit is to force SBE to stop using the BMD system in favor of hand-marked paper ballot systems.
The text of the lawsuit lays out the basic argument that I and other advocates for hand-marked paper ballots have long been making (page 1):
The ExpressVote is an insecure, unreliable, and unverifiable machine that threatens the integrity of North Carolina’s elections.
The Express Vote’s defects and security flaws create the risk that Plaintiffs, together with other North Carolina voters, will have their votes rendered meaningless or, worse yet, deemed cast for the wrong candidate. This creates a risk that the wrong candidates will be declared winners of elections improperly and take office in contravention of the very essence of our democracy.
The plaintiffs also argue that touchscreen voting increases the risk of coronavirus transmission to voters and election workers, and that the process of disinfecting ExpressVote machines would be “time-consuming, difficult, and costly” resulting in “longer lines where more voters will be exposed to one another” (page 3).
Courts are not the correct venue for judging the merits of voting machines
The plaintiffs claim that using ExpressVote violates two sections of the North Carolina Constitution: the free elections clause and the equal protection clause.
Article 1, Section 10 of the NC Constitution simply states that “all elections shall be free.” That has traditionally meant that voters cannot be coerced into voting for a particular candidate or party, for example, by being required to pledge to support candidates from a particular party, although a court also interpreted it to prohibit drawing “extreme” partisan district maps last year.
The Plaintiffs argue that ExpressVote systems are “so insecure and defective that the legitimacy and integrity of elections cannot be guaranteed while they are in use” (page 27). Their argument here rests on a technical assessment of voting machines. While I happen to agree with the plaintiffs on the merits of their complaint against ExpressVote, that is a determination outside the competence of judges to decide.
The second constitutional claim is that the counties using ExpressVote are violating the Equal Protection Clause in Article 1, Section 19, of the NC Constitution (quote from the complaint):
The Equal Protection Clause of the North Carolina Constitution guarantees that ‘[n]o person shall be denied the equal protection of the laws.’
The basic argument the plaintiffs make here is that making voters in some counties use ExpressVote while other voters use hand-marked paper ballots denies voters their right to equal treatment under the law. However, the State Board of Elections did not make a variation of voting systems from county to county a requirement. They simply approved the use of ExpressVote, along with several other voting systems, so there was no denial of equal treatment by the SBE.
It was the individual county boards that chose which systems they would use, and those systems are used countywide for all voters who are voting early or on election day regardless of the race, color, religion, or national origin of individual voters. And, again, the plaintiff’s case rests on an argument over the technical merits of election systems that are properly within the purview of election officials, not the courts.
Both of the arguments presented in the complaint are a stretch at best and the coronavirus should not be used as a pretext for a judicial power grab. The state should resist this lawsuit to the best of its resources.
North Carolina should take steps to eliminate touchscreen voting, but the proper means is through the legislature and election officials, not the courts.
