RALEIGH, N.C. (AP) — Certain touch-screen ballot-marking machines will remain in use in North Carolina this fall, a judge ruled in a case in which voters questioned the equipment's accuracy and health risks during the COVID-19 pandemic.
The state NAACP join the four voters who demanded in April that the ExpressVote machines — already used in roughly 20 of the state's 100 counties since last year— be barred from future elections. They wanted hand-marked paper ballots used instead.
But Wake County Superior Court Judge Rebecca Holt rejected their request, saying no tabulation errors have been reported since the machines were first used last fall. There's also no evidence their use will increase the likelihood of the virus's spread, especially with cleaning guidelines issued by the State Board of Elections, Holt wrote.
The names of the voters’ choices are printed on the ballot by the ExpressVote machine. They correspond with bar code data that’s also printed on the same ballot and tallied by a separate counting machine.
That's worried voting activists and some information technology experts, who say there's no way for a registered voter to know for sure the bar code matches their candidate picks. A study released in 2018 by the combined National Academies of Science, Engineering and Medicine urged that elections use human-readable paper ballots that people can inspect and recount.
Holt acknowledged this concern, even while rejecting the plaintiffs' request to halt use of the machines.
“It is therefore conceivable that some level of irreparable injury will occur if the ExpressVote is used,” she wrote in the order issued late Wednesday. But she questioned the feasibility of replacing the machines in all the counties that use them. They include Mecklenburg County, which ranks second among the counties by registration.
Nine North Carolina counties using the ExpressVote machines, produced by Nebraska-based Election Systems & Software, have not used paper ballots for conventional in-person balloting since the early 2000s, she wrote. And simply returning to the ways things were before the counties started using the machines would force them to use machines that fail to meet current state standards.
“Issuance of a preliminary injunction would create considerable risk that (the counties) would be unable to perform their duties, as well as cause confusion about the particulars of how voting would take place,” Holt wrote.
The judge also pointed out that the plaintiffs did not challenge in court the machines until eight months after the state board certified their use.
John Powers, an attorney for the plaintiffs, said Thursday they had not decided yet whether to appeal the decision.
State and county elections boards have asked the lawsuit be dismissed. Holt's declaration that the NAACP and voters had the legal standing to sue in part due to identifiable injury “does bode well for our ability to pursue the case,” said Powers with the Lawyers’ Committee for Civil Rights Under Law.
State elections Executive Director Karen Brinson Bell was pleased with the ruling. She pointed out that more than 90,000 ExpressVote machines are used nationwide. More than two dozen North Carolina counties are prepared to use them in one way or another this fall.
The ruling comes as a huge number of registered voters — apparently concerned about COVID-19's threat while voting in person — have requested mail-in absentee ballots for this fall. Through Tuesday, 296,000 applications have been turned in with county board offices, compared 27,000 applications at the same time in 2016, the elections board said. An online application portal will begin by Sept. 1.
County boards can send blank ballots to qualified applicants starting Sept. 4.
“State and county elections officials are doing everything possible to ensure a safe, secure 2020 general election,” Brinson Bell said.
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