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Durham Board of Elections Grants NCGOP Evidentiary Hearing

By Lisa Sorg, NC Policy Watch

DURHAM, NC – His shoulders slumped and his head bowed, Bill Brian, the Republican chairman of the Durham County Board of Elections, seemed burdened by the vote he was about to cast. “I’m having a difficult time,” he told a standing-room only crowd that had gathered in the county commissioners chambers.

With a short break to call an ambulance for someone who had collapsed in the back of the room, the probable cause hearing entailed an hour of testimony, some of it fanciful, about the integrity of Durham’s election results.

Brian said he “didn’t see a basis” to grant NC Republican Party attorney Thomas Stark’s request for an evidentiary hearing.  Stark is petitioning the board for a recount, based on 90,000 ballots cast during early voting and specifically in Precinct 29 on Election Day.

An affidavit from a systems analyst with the State Board of Elections and testimony by officials from ESS, the election software company, indicated that there were no shenanigans, only a software memory problem that complicated the vote tallying.

More than 100 demonstrators with Durham in Defiance protested the probable cause hearing. They are concerned that a recount will result in votes being illegally invalidated.
More than 100 demonstrators with Durham in Defiance protested the probable cause hearing. They are concerned that a recount will result in votes being illegally invalidated.

“But on the other hand, this is a very, very low bar,” to show probable cause, Brian said. “And we like to err on the side of letting people make their point. Durham is a community deeply dedicated to fairness.”

There were many social justice advocates in the room who disagreed with that comment. Nonetheless, Brian voted with his fellow Republican board member, Margaret Cox Griffin, to hold an evidentiary hearing. Dawn Baxton, the Democrat on the board, voted against it.

Stark exercised his right to protest the vote as a Durham resident. However, as general counsel for the state Republican Party, he has an inherent interest in seeing GOP candidates win, including Gov. Pat McCrory.

Barring any last-minute surprises, it’s unlikely that Stark’s arguments to be presented at the evidentiary hearing will change the outcome of the election for any candidate.

Kathy Rogers prepares to testify under oath at a probable cause hearing at the Durham Board of Elections. Rogers is senior vice president for government relations of Elections Systems & Software, based in Omaha, Nebraska.
Kathy Rogers prepares to testify under oath at a probable cause hearing at the Durham Board of Elections. Rogers is senior vice president for government relations of Elections Systems & Software, based in Omaha, Nebraska.

ESS employees had flown in from

Nebraska for the hearing. (ESS offices are on John Galt Boulevard in Omaha. Kathy Rogers, senior vice president for government relations noted, “We did not name the street.”)

Rogers told the board that after ballots are entered into the optical scanner, the votes are tabulated on tape, as well as on cards. The data from the cards are then supposed to be uploaded to ESS software, which is used by North Carolina and many other states. That software then spits out the election results.

However, the software has an inherent memory limit of 65,535 votes. If a single card contains more than that number, it fails to upload. (This restriction is similar to older versions of Excel, which also limits the number of rows to 65,535.)

“No one can answer our question whether the tabulator number was accurate,” said Stark, who said he was representing only himself in contesting the vote. “It’s still an open question. That is reason enough to recount those ballots and make sure have right totals.”

But a review of the tabulator logs showed that the cards and the tapes recorded the same data, according to an affidavit filed by Brian Neesby, a systems analyst with the NC Board of Elections. The failure was not that of accuracy, but of upload.

The cards had not been corrupted, testified Ben Swartz, state certification manager for ESS. “The cards are fine,” he said.

Durham election workers then manually tabulated the votes that couldn’t be uploaded. Neesby testified that there were a few small errors in the manual tabulation, but none affected the outcome of any contest.

For example, at a one-stop site, the tapes showed 14,875 people voted for the museum bond; the manual tabulation listed the number as 14,870. The bond passed overwhelmingly, by 84,000 votes.

At the same site, the tapes indicated commissioner candidate James Hill received 9,896 votes; the manual tabulation recorded 9,897. That race had five candidates for five seats, and thus was essentially uncontested.

There was some question why the card for Precinct 29 did not upload because it reportedly contained fewer than 65,535 votes. ESS officials said they were not familiar with the issue in that precinct, which includes part of northeast Durham County along I-85.

No discrepancies occurred in the race for governor or any of the Council of State contests, Neesby said in his affidavit. Republican Gov. Pat McCrory lost Durham County by more than 89,000 votes.

Stark’s prominence in the party adds fuel to the subtext that his request for a recount is really about McCrory’s statewide loss to challenger Roy Cooper. More than 5,000 votes statewide separate the two candidates, which allows McCrory to call for a recount.

Thomas Stark, general counsel for the state Republican Party, asked the Durham Board of Elections for a recount of 90,000 ballots. Officials from the state board and the elections software company also testified that the data from the cards and the tapes matched.
Thomas Stark, general counsel for the state Republican Party, asked the Durham Board of Elections for a recount of 90,000 ballots. Officials from the state board and the elections software company also testified that the data from the cards and the tapes matched.

Since the Election Day loss, the McCrory campaign has woven a narrative intended to sow doubt in the election results. Although Stark told the Durham board that he wasn’t asking for a recount on behalf of McCrory, the campaign released his a copy of his protest to support its contention that there were “irregularities.”

In his remarks before the board, Stark conjured up various scenarios of how Durham’s election could have been compromised. “There is evidence that there are websites available telling people how to corrupt these cards so votes can be changed,” Stark told the board. “There’s no evidence it happened here. It’s just a possibility. That’s why we want to look at the ballots.”

Just his week, the McCrory campaign also alleged that massive voter fraud occurred in Bladen County. Although that case is under investigation, the governor’s race is not an issue there; the controversy pertains to absentee ballots cast for Soil and Water Conservation District Supervisor, a nonpartisan race.

“We were not trying to undertake a scorched earth investigation of every issue,” Stark said, again using the plural “we.” “It seemed to be easier to recount the ballots.”

If Stark prevails in the evidentiary hearing, the board would conduct a machine recount of the 90,000 votes. Initially, Stark asked for a manual recount, but later relented. “If we can be assured there is a not a software error for our races, a machine count would be acceptable.”

Before casting the deciding vote, Brian acknowledged that the controversy contains racial overtones.

“This is a highly charged issue. Mr Stark and others feel like there’s something fishy going on here. And there’s people who don’t understand why Durham is the one that always has to recount its votes. This is a community with a large African-American population. I understand that there is a stigma in counties with large African-American population that they can’t be trusted. I don’t like that. We have a long history of conducting good elections.”

After the hearing, a large citizens’ group, Durham in Defiance, which opposes a recount, strategized about how to petition the board before the evidentiary hearing.

“We live in a country where the legal system used to be in support of segregation,” said community organizer Sendolo Diaminah, who is African-American.

“The reason we lost today wasn’t because of the argument,” another man added. “It’s because we don’t have political power.”

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(Photos: Lisa Sorg)

Lisa Sorg, Environmental Reporter, joined N.C. Policy Watch in July 2016. She covers environmental issues, including social justice, pollution, climate change and energy policy. Before joining the project, Lisa was the editor and an investigative reporter for INDY Week, covering the environment, housing and city government. She has been a journalist for 22 years, working at magazines, daily newspapers, digital media outlets and alternative newsweeklies.
lisa@ncpolicywatch.com
919-861-1463

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