Kay Brown leaned into the podium at a packed hearing room at the Guilford County Courthouse in Greensboro, North Carolina. She and other speakers each had one minute each to address their county Board of Elections, whose newest members included Dr. T. Anthony Spearman, president of North Carolina’s NAACP.
Brown gave her name, said she lived in town, and had graduated from North Carolina Agricultural and Technical State University. A&T, as it’s called, is the largest historically black university in America. Republican legislators split the campus into two congressional districts in an extreme gerrymander in 2011. The Greensboro campus hadn’t had an early voting site for years. A GOP-passed voter ID law targeting students takes effect in 2020. Brown didn’t mince words.
“We do not want to be let down by the Board of Elections again,” Brown declared. “Whether that is getting paper ballots. Whether that is getting voting access. Whether that is getting our early voting sites, such as A&T’s campus. . . There’s been a war on elections at A&T since I was there in 2006.”
The scene unfolding on September 17 in a drab conference room in Greensboro was a microcosm of the ongoing struggle for voting rights in America. Some issues brought up by Brown and others were descendants of the civil rights struggle that, in part, had begun two blocks away at an F.W. Woolworth lunch counter, where a historic sit-in unfolded in 1960. But other issues before its county BOE concerned the near future of what ballots and counting votes will be in their city and politically divided purple state.
“It’s become more and more frequent for voters to ask, ‘How do I know that the machines have my vote correct?’” Donna Peterson, a middle-aged white resident of nearby Jamestown, asked, turning to an immediate decision facing 23 North Carolina counties. What voting system will they buy and use for the 2020 presidential primaries and in the next dozen or so years?
“I understand that [with] the ones that I think Guilford County is looking at right now, there’s a bar code that’s going to be there that people can see,” Peterson continued, referring to a new form of ballot that presents votes in bar codes and text below. “There is no way that they know that the information in the bar code is indicative of the votes that have been cast.”
Those packing the courthouse hearing and spilling into the hallway demanded, pleaded and even prayed that their county BOE would “do the right thing” surrounding voting. They wanted student disenfranchisement to stop, but the chairman delayed that discussion for two weeks. And they wanted a voting system they could trust: one where voters, not printers, marked ballots.
“Please, please don’t manipulate the process,” implored Rev. Dr. Cardes H. Brown Jr. “Please don’t try to covertly keep people from exercising their constitutional right. I beg of you. Do the right thing. Let’s have a tracking mechanism by which we can see how people have voted, so we can have confidence in our system.”
Across North Carolina and in many swing counties in swing states, locales like Guilford are racing to select and deploy new voting systems before 2020. Many are replacing the paperless voting systems that were acquired 15 years ago after Florida’s fraught presidential election and recount in 2000.
Ironically, as was the case then, the most critical and controversial issues revolve around the extent to which human actions and human judgments will be preserved and made more accountable — or will be replaced and masked by computer-driven automation.
Most of the new voting systems share comparable electronics that count votes, but there is one critical variable. Some allow voters to hand-mark a paper ballot, while others use software to mark their ballots for them. This decision point has serious repercussions.
This choice affects two key areas where human acts and judgments have been cornerstones in the voting process for many years. The first threshold is when voters record their choices: the ballot itself. The second is the finish line where election boards, acting like a jury, re-examine ballots in election challenges and recounts.
The starting line of this national debate is the ballot itself. It is indisputable that a hand-marked paper ballot is not the same as a computer printout that represents a voter’s intent. Human-made marks, while sometimes sloppy, are direct records tied to voters. Additionally, so-called canvassing boards, comprised of local election officials, reexamine ballots in post-Election Day challenges and recounts. As contentious as that process sometimes is, hand-marked paper ballots are an accepted baseline of voter intent — evidence linked to voters.
But not all officials see these human traces as virtues. Many prefer the administrative efficiencies and the conflict-reducing potential that results when ballots are generated by computerized ballot-marking devices (BMDs). They like systems where voters use a computer touch screen to make their choices. They like software that alerts a voter if they have skipped a race or have voted more than once in one contest. They feel voters have ample opportunity to review their voted choices on a screen or on the resulting printout.
This cadre also likes the official ballot record that is produced — a tidy paper printout after a voter is finished. These records take two forms: an already filled-in regular ballot, or a smaller card with bar codes referring to the voter’s choices and text below listing their votes. Ballot-marking devices yield a quicker and more complete vote count, their supporters say. (This cadre also discounts the prospect of someone secretly reprogramming vote-counting software to tilt the results.)
The choice of ballot record also affects the finish line of elections. This is where results become official or local boards take a closer look. The ballot type will impact the extent to which a jury — the canvassing board — and the public can review any questionable ballot. This often-tedious task is what unfolds in challenges and recounts. A BMD system all but eliminates that juror role, as software decides voter intent before printing a ballot record.
Some officials welcome that feature. They do not want to judge sloppy ballots. After 2000’s presidential election in Florida, many states and counties bought fully paperless voting systems so they would not be “the next Florida.” These electronic systems were later found to be un-auditable — meaning that results could not be independently verified—subverting the canvas board process. Also, hackers could breach many paperless systems. But the impulse to eliminate the problematic human aspects in voting and judging voter intent remains an issue.
Automation or not?
At the Guilford County Courthouse, whether these human elements should be honored or excised was not an idle question. Days before its meeting, BOE members attended a state-sponsored demo by the vendors of the three voting systems that they could choose from — one of which would debut in next March’s presidential primary.
The state’s oldest vendor, Election Systems & Software, or ES&S, promoted its “Express Vote” system built around BMD-producing ballot summary cards with bar codes and text of a voter’s choices. Its competitors, Hart InterCivic and Clear Ballot, pushed systems built around counting hand-marked paper ballots.
“The Express Vote was actually built to take the best of the iVotronic [the paperless machine being phased out], which is the electronic touch screen and the best of a paper system,” said Mac Beeson, ES&S regional vice president, launching a polished pitch that ballot summary cards were the best format. (ES&S’s BMD system was the most expensive option before the 23 counties.)
But several days later, a briefing held at Greensboro’s New Light Missionary Baptist Church presented more critical views. Dr. Spearman, the state NAACP president and Guilford BOE member, organized the forum. Nationally known computer scientists, via a live video link, told a crowd of voters, elected officials and clergy that software inside the newest systems could be secretly reprogrammed.
Benny Smith, a financial software engineer who works for Federal Express in Memphis, Tennessee, and is a Shelby County Election Commissioner, went further. He recounted how he had created a utility — a software tool — that he then used to secretly reallocate votes in Shelby County’s central tabulation database. His tool manipulated software features designed for other uses.
This forum’s takeaway was that the more automated the balloting and vote-counting process became, the more difficult it would be to observe and verify its overall credibility. Election secrecy was not new in North Carolina and enabled voter suppression tactics, Spearman emphasized in his opening remarks.
“There has been a regression or a continuing erosion that further eats away at, or weakens, voting protections and replaces them with voting infections,” he said. “These infections are working their way through what we call voter suppression tactics.”
The Guilford BOE, which met the next day in Greensboro, took up the question of what new voting systems to acquire after telling the A&T students to come back in October to discuss whether it would create on-campus early voting centers for 2020’s elections.
Unequal paper ballots
The local BOE’s deliberations grew testy. That friction revolved around a debate of whether all of the paper ballots in new voting systems were essentially the same. In other words, was there any difference between human- and machine-marked ballots?
The BOE’s two Republican members, who favored ES&S’s ballot-marking device, said all paper ballots were essentially the same. They saw little value in preserving the process’s human elements and judgments. But Spearman, standing alone, disagreed.
“Well, let’s be clear on one thing,” the North Carolina NAACP president said. “We keep hearing that all of them are paper ballots. All of them are on paper. But I don’t read bar codes. I read a little Hebrew. I read a little Greek. I read a little Spanish. But I don’t read bar codes, and the bar codes are the issue at hand.”
But not every BOE member, including Democrats such as Jim Kimel, its newly appointed chairman, concurred.
“During the years that I have been here, I know that some voters, unintentionally, don’t speak bubble either,” Kimel said. “You and I have seen a number of ballots where the voters bubbled in two at the same place. We say vote for one. They have been outside. They have been inside. They make an X. And it’s my fear. . . when they pop it into the bin [scanner] that that vote doesn’t count.”
The discussion went downhill. BMD supporters argued there was no substantive difference between hand- and machine-marked ballots when it came to counting votes. In both cases, they said that the precinct ballot scanner interpreted each ballot page as a grid. It correlated the location of ink marks to a candidate’s place on the page, or read bar codes of those same coordinates to assign and count votes. Thus, they said that the type of ballot didn’t matter because the electronics weren’t even reading the alphabet.
This faction also said that voters had plenty of time to review their ballot choices — and contended that more automation would catch their mistakes and enable more votes to be counted. But Spearman rejected these points, saying these were “the arguments of ES&S.”
“As I have always stated, if I am going to err, I’m going to err on the side of the voters,” Spearman said.
“That’s what we have always done,” replied Kathryn Lindley, a Republican BOE member.
Spearman called their current paperless system “an abomination” that had been banned in several states after academics showed that computer hackers could reprogram its vote totals.
“What evidence do you have of that?” interjected Eugene Lester, a Republican BOE member.
“Plenty of it,” Spearman replied. “And if you can accept it, then we can move on to a better system.”
“We’re going to move on to a different system,” Lester countered.
“For the past seven years, we have been subjected to using a machine that has already been determined in a few states, Florida being one of them, that is really an abomination,” Spearman said. “It’s been banned in Florida for years. So that’s the proof.”
Several minutes later, the Guilford County BOE voted to delay their decision on choosing a new voting system for a week.
Several weeks earlier, Lynn Bernstein, executive director and founder of Transparent Elections North Carolina, had discovered that the state election agency had not done a required review of the source code — the software’s brain — in the three new systems being put before the counties. The Guilford BOE cited that pending issue when it postponed voting on a new system. (State officials later said that they believed a federal review would suffice.)
When the Guilford BOE met on September 24, more students from North Carolina A&T showed up. They wanted hand-marked paper ballots. Other activists pointed out that the county could save millions of dollars if it bought a hand-marked ballot system, especially one that printed precinct ballots on demand.
ES&S’s BMD machines cost more than $4,000 each (to buy, license and maintain) compared to pens costing 8 cents apiece, John Brakey of Audit Elections USA told the panel and press. Every precinct would need several BMDs if the county bought BMDs. Again, the Guilford BOE took no further action.
Secrecy in Voting
That same day, the BOE in Forsyth County — the state’s fourth most populous county — voted to stick with ES&S, but not buy its BMDs. It would use a system printing ballots as voters came into precincts and where voters would mark their ballot by hand. The county will test that system in November’s local elections.
Hovering over these developments — in North Carolina and many swing states — is a foundational question: how much of the human element in voting is desirable at key junctures in the process to serve as a check and balance and legitimize outcomes?
Asked to reflect after the local BOE deliberations, Spearman said, “There’s too much secrecy surrounding these machines.”