COVID-19 isn’t slowing down voting rights advocates in North Carolina; today they filed a lawsuit in Wake County Superior Court challenging a new voting system that’s used in 21 counties, including Mecklenburg.
The 31-page lawsuit alleges the new system, called ExpressVote, is vulnerable to security threats, and its results are unverifiable by voters because it uses a barcode for tabulation; use of the system violates the North Carolina Constitution’s guarantees of free and fair elections and the equal protection of the law.
“The ExpressVote is an insecure, unreliable, unverifiable and unsafe machine that threatens the integrity of North Carolina’s elections,” said the Rev. Dr. T. Anthony Spearman, President of the North Carolina NAACP. “The new electronic system converts voters’ votes and ballots into undecipherable barcodes, forcing voters to cast a vote they cannot read. These North Carolina counties must move to hand-marked paper ballots to restore voters’ trust in the integrity of our elections.”
The NC NAACP and several voters filed the lawsuit, and they are represented by the Lawyers’ Committee for Civil Rights Under Law, Free Speech For People and the law firm of Sheppard, Mullin, Richter & Hampton LLP.
They also allege in the lawsuit that the new system, implemented ahead of the election this fall, is particularly perilous during the COVID-19 pandemic. The virus can be spread through contact with the touchscreen computer or other parts of the machine.
Election Systems & Software, the company which manufactures and markets the ExpressVote machines, has said there are remedial steps which election officials can take to mitigate threat of the virus, such as cleaning the machines after contact by each voter. The plaintiffs in the lawsuit, however, said those suggested steps are time-consuming, difficult and costly, and they can lead to long lines at polling places.
Such cleaning can also damage the ExpressVote machines and is ineffective in eliminating the coronavirus if improperly done, the said.
John Powers, counsel for the Lawyers’ Committee for Civil Rights Under Law, said during a press call Wednesday that the collective consciousness of voting rights advocates have changed in the wake of COVID-19, but that doesn’t mean hackers and hostile nation states are taking a day off.
“The same threats that existed before the panic are still there right now,” he said. “As voting rights advocates, we need to walk and chew gum at the same time in terms of addressing voter access concerns … but we also need to make sure we protect our election systems and don’t take our eye off the ball as the critical 2020 election approaches.”
The defendants in the case include the North Carolina State Board of Elections and the county boards of elections in Alamance, Ashe, Buncombe, Burke, Cherokee, Davie, Davidson, Forsyth, Haywood, Henderson, Jackson, Lenoir, Mecklenburg, New Hanover, Pender, Perquimans, Polk, Rutherford, Surry, Transylvania and Warren counties. Each of those areas use some the ExpressVote machines in some capacity;, whether it’s the main voting machine or used for early voting.
The ExpressVote barcodes can be miscoded or hacked without detection, according to the lawsuit. Its defects and security flaws create the risk that voters in Mecklenburg County and several other North Carolina counties will have their votes cancelled or cast for the wrong candidate.
The lawsuit details problems that have already occurred with the machine. During North Carolina’s March 2020 primary election, ExpressVote machines were left in improper modes, used for types of voting for which the machines had not been authorized, and were responsible for improperly tabulating votes in at least one county.
“The right to vote means the right to have one’s own intended choices recorded and counted, not the choices of a computer running an insecure, unreliable software,” said Courtney Hostetler, Counsel at Free Speech For People.
“Voters who are required to use the ExpressVote voting machine aren’t just losing out on the right to vote—they’re also exposing themselves to a hard-to-disinfect touchscreen that may have been touched by hundreds of voters carrying a deadly virus that can live on surfaces for days. Only hand-marked paper ballots can guarantee North Carolinians a secure, reliable, and safe election.”
Read the full lawsuit below.