Oft-failed ES&S op-scan system undermines Tar Heel State election...
By Brad Friedman on 11/16/2016, 5:05am PT  

[Just crawling out from a recent illness. Baby steps here for the moment.]

The race between North Carolina's controversial and divisive Republican Gov. Pat McCrory and his Democratic challenger, Attorney General Roy Cooper, is very close. Out of about 2.5 million ballots cast, Cooper leads in the currently reported results by just 4,972 votes (or 0.11%), with tens of thousands of provisional ballots being tallied throughout the week before Friday's state certification.

The failure of a widely used paper-ballot optical scan computer tabulation system has made the outcome of the close race even murkier.

"McCrory had the lead all of election night until 94,000 votes were reported late in Durham County. After that, the tide turned and Cooper secured the lead," WFMY reports today, from the state where both Donald Trump and incumbent Republican U.S. Senator Richard Burr were reported to have won their statewide races.

The Democrat Cooper, as is the habit of both Republicans and Democrats these days, used the slim lead to declare "victory" in the gubernatorial race on Election Night, well before the results were either canvassed or certified.

As Raleigh's News & Observer reported on Saturday: "Gov. Pat McCrory, trailing in a close race for re-election behind Attorney General Roy Cooper, claims there was 'malfeasance' in tabulating votes in Durham County and 'irregularities' reported around the state. Cooper's campaign said nothing improper happened in Durham, and accused McCrory of trying to undermine the election."

The paper reports: "About 90,000 votes weren't counted until late on Election Day. Durham officials said it was due to malfunctioning equipment that led to a backlog, and that it had no impact on the votes cast. ... McCrory's campaign staff said on Saturday that those ballots came from at least five early voting sites and one general election site in Durham County and appear to have been tabulated from corrupted memory cards. The cards could not be properly read by the system and the computers 'experienced a critical error,' according to the campaign."

"In Durham, the county was unable to upload results on Election Night from six electronic memory cards that save ballot data," WNCN reports. "But Durham was able to print out a tape log of the results and entered them manually. A petition has been filed to recount those votes."

For the record, Durham's Board of Elections (like all of the state's county Boards of Election, while a Republican serves as Governor) is majority GOP. The county votes on hand-marked paper ballots, tabulated at the precinct (either correctly or incorrectly, we can never know unless the ballots are actually counted by humans) by ES&S Model 100 optical-scanners. The M-100s, as we reported as long ago as 2008, have a storied history of failure. In 2008, for example, as we explained at the time, election officials in Oakland County, MI informed the U.S. Election Assistance Commission (EAC) that during testing, the ES&S system "yielded different results each time" the "same ballots were run through the same machines".

The NC GOP is now demanding ballots cast in Durham County --- which reportedly leaned very heavily towards Cooper as well as Hillary Clinton (approximately 3 to 1 in both cases) --- have its ballots "recounted", following the computer tabulator memory card failures on Election Day...

The NC GOP is absolutely correct to call for such a count. Hopefully they seek a manual hand-count, rather than a machine count through the same opaque, oft-failed optical scan computers. Even if those systems didn't have a history of failure, McCrory's voters deserve to know whether he actually won or lost. That is true no matter how much of a disaster McCrory has been to the state of NC (and he absolutely has been.) It's also true that, without a manual hand-count of the paper ballots it has scanned, it's impossible to know if the results reported by the system are actually accurate.

In truth, ballots should be publicly hand-counted across the entire state of NC to determine how all of the voters voted, as opposed to just those cast in a single county. You'll recall that Al Gore's filing for hand-counts in select counties in Florida back in 2000 had outraged Republicans at the time, as they accused him of "cherry picking" only certain counties to check for accuracy. (What Gore did at the time was perfectly appropriate under Florida recount law, which required that recounts be filed on a per county, rather than statewide basis. It also made fiscal sense for the campaign, since it would have cost Democrats a lot more money to file for counts in each of the state's counties.) That the GOP accused Gore of something nefarious at the time seems to be lost on the NC GOP now that their guy has reportedly lost by a slim margin in the Tar Heel State.

Despite the NC Republicans' charge of "malfeasance" in their official petition [PDF] contesting the Election Night tallies in Durham, they have yet cite any actual malfeasance on the part of voters or election officials.

"For decades, Cooper and the Democrats have turned a blind eye to potential and actual voter fraud, so it's no surprise that they're doing it again. It's the Republicans who are actually doing something about it," McCrory's campaign spokesman Ricky Diaz said in response to Cooper campaign spokesman Jamal Little's claim that "The McCrory campaign is now using NCGOP counsel to attack the Republican controlled board of elections in a desperate attempt to undermine election results."

There is no voter fraud --- "potential" or "actual" --- cited in the GOP's petition. Despite that, Jason Torchinsky, chief legal counsel for the Pat McCrory Committee Legal Defense Fund, according to the News & Observer, added: "What transpired in Durham County is extremely troubling and no citizen can have confidence in the results at this point in time."

For those who may not remember, Torchinsky was a longtime frontman for the national Republican Party's phony "voting rights" group (until we helped expose the scam) which called itself the American Center for Voting Rights. The GOP outfit, which lied about its non-partisan status, appeared out of nowhere just after the 2004 election to offer false claims to the U.S. Congress and the media that it was John Kerry and ACORN who committed "voter fraud" in Ohio in that year's Presidential Election.

Nonetheless, as abhorrent as McCrory may be as a Governor, and as dishonest as his legal proponents may be, his supporters and all of the voters in NC deserve to know whether he actually won or lost the 2016 Governor's race. So, I hope they'll press on with their call for a "recount", but with a demand for a full hand-count across the entire state --- at least where such a count is actually possible, since many North Carolina counties still use 100% unverifiable touch-screen systems. (While the touch-screen systems in NC include a "Voter Verifiable Paper Audit Trail" or VVPAT, those paper trails can still be gamed and, in any event, do not necessarily represent the intent of the voter, since most voters don't bother to check VVPATs for accuracy. Even when they do check those tapes before casting their vote, voters may not notice that the computer flipped their selections. And, in any case, it's impossible after the election to know if any voters checked them at all, accurately or otherwise. Because of that, even a complete statewide "recount", which is allowable if the certified margin is less than 10,000 votes, is unlikely to definitively determine who actually won or lost the election.)

I'll also just toss in here, that while Republicans consider pushing to verify that every vote was recorded as per voter intent --- even in counties like Durham which are run by Republican-majority Election Boards --- Democrats may wish to consider doing the exact same thing when it comes to the Presidential race --- or any other --- in North Carolina. Yes, these machines can be easily manipulated and are sometimes wildly inaccurate in their reported results.

All voters deserve to know if votes were recorded as per voter intent. And until paper ballots are hand-counted, they can never know for certain.

One last troubling point I'll note for now, as mentioned by WNCN: "Attorneys are looking into what happened to a block of votes that came in late in the night. If those results are eventually contested, they'd go before the Republican-led General Assembly."

That's right. If the results of a "recount" are ultimately contested --- for whatever reason McCrory (or Cooper) might choose to do so --- no matter what the actual public count of ballots reveals, Republicans who control the state's General Assembly get to decide and/or steal the race for the Republican Governor, should they so choose. Given the behavior of this particular state legislature and this particular Governor, I don't imagine for a second that they'd have any problem doing so.

Nonetheless, as we have shouted from the rooftops for well over a decade now, whether its Republicans or Democrats (or independents or third-parties) who have been screwed by the vote casting or counting computers --- when they even have questions about the accuracy of the results reported by them: Count the ballots! Publicly! With actual human beings!

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