The North Carolina State Conference of the NAACP and four individual plaintiffs filed a lawsuit against the North Carolina Board of Elections on April 15 in Wake County Superior Court. The suit challenges the use of “insecure, unreliable and fatally flawed” ExpressVote machines used in 19 North Carolina counties, including Warren, during the March primary election.
In Warren County, the new ExpressVote machines, which are ballot marking devices (BMD) — along with new DS200 machines that tabulate the votes — replaced the iVotronic, direct-recording equipment (DRE) machines that were 15 years old.
According to Debbie Formyduval, director of the Warren County Board of Elections, 52 of the new ExpressVote machines were first used in the 14 precincts across Warren County during the 2019 municipal elections. This usage constituted the mandatory test required by the state board of elections to determine the efficacy of the equipment.
“It was a perfect election,” Formyduval said. “All our numbers matched up with the post-election audit.”
And other than a “user error,” during the March primary, Formyduval said she is not aware of any issues with the machines.
That user error amounted to 863 votes cast for the Libertarian Party candidate, when there are only 41 voters registered as Libertarians in Warren County. In addition, dozens of votes were cast for both the Constitution and Green party candidates, when each party has just one registered voter each in the county.
Formyduval herself took responsibility for the error, saying she had submitted the wrong file. A colleague realized the error the next day and the correct numbers were submitted by March 5, two days after the election.
“That’s why we say any results announced on the night of the election are unofficial,” Formyduval said.
Higher Stakes Ahead
Looking ahead to the November election and beyond, the lawsuit claims “North Carolina voters will have their votes rendered meaningless or … deemed cast for the wrong candidate. This creates a risk that the wrong candidates will be declared winners of elections improperly….”
The lawsuit goes on to say that, “The ExpressVote suffers from known security vulnerabilities, is inaccurate, tabulates votes based upon a barcode that cannot be read by the voter, and cannot be sufficiently audited. The record produced by the ExpressVote used in North Carolina cannot be relied upon to consistently record, tally, and secure the votes of the state’s citizens.”
For her part, Fomyduval said the lawsuit came as a shock to her. Having used similar equipment since 2005, she said, “Our voters have been very pleased with the new machines.”
A precedent in these matters was set at the end of April when a district court judge in Pennsylvania upheld the use of ExpressVote machines throughout the Commonwealth. In response to a legal challenge from Green Party presidential candidate Jill Stein and her witness, a professor from the University of Michigan, Judge Paul S. Diamond called the challenges “baseless and irrational.”
Diamond dismissed the testimony of the plaintiff, stating her witness brought no evidence that the machine could be hacked. “The machine is reliable and ready to use,” the judge ruled.
NAACP Weighs In
The Rev. Dr. T. Anthony Spearman, president of the North Carolina NAACP since October 2017, spoke to The Warren Record about why the NAACP filed this suit.
“Mainly because we’re very concerned about the security of the voting process,” said Spearman, who serves on the Guilford County Board of Elections. “One issue we have found is that Ballot Marking Devices (BMDs) are very risky in terms of intent.”
He went on to say that the overall goal of the NAACP is to “restore trust and confidence in our electoral system. That trust has been compromised and violated in the past,” he said. “A barrage of legislation has been enacted to suppress the vote.”
By way of example, Spearman points to NC House Bill 589, which was filed shortly after the Supreme Court struck down parts of the 1965 Voting Rights Act in June of 2013.
“That’s when HB 589 was introduced,” he said, trying to pass the Voter Information Verification Act or Voter ID Law. Both the Obama Administration Justice Department and the NAACP filed suit to challenge this law they said threatened the voting rights of minorities.
“We sued then and won,” Spearman said. “The 4th Circuit [Court of Appeals] ruled that the NC General Assembly had sought, with surgical precision, to suppress the vote of African-Americans and Latinos. Ever since then they have tried other tactics to do the same thing. We are on guard to do everything we can to prevent them from suppressing the vote.”