The Durham County Board of Elections voted unanimously Friday to reject Durham County attorney Thomas Stark’s challenge that voting machine technical glitches involving 94,000 early vote and Election Day totals justified a recount. Meantime, provisional and absentee votes counted and submitted by county boards to the State Board of Elections added to Democratic Attorney General Roy Cooper’s election night lead over incumbent Gov. Pat McCrory.

It was the first of numerous Election Day vote count protests to be heard across the state. Stark, who unsuccessfully sought to subpoena the county’s voting materials on Thursday, is weighing his right to appeal the decision to the State Board of Elections, saying lack of access to some materials limited his ability to provide evidence of vote count irregularities.

Stark, who is general counsel for the state Republican Party, characterized the board’s 3-0 vote to deny what he thought was “a perfunctory” request for a simple paper ballot recount as a loss of transparency for Durham County voters, leaving the integrity of the county vote results subject to doubt.

Elections Board Chairman William Brian denied that claim.

Unlike the infamous paper ballot hanging chad dilemma of the 2000 presidential race, Stark’s  protest hinges on electronic interactions, software programs, and transfer of data from memory cards to paper tapes.

Durham County still faces more protest hearings. Republican Gov. Pat McCrory is filing protest hearing requests in 50 counties including Durham based on claims of illegal votes cast by felons, double voting, provisional ballots incorrectly put through voting machines, and other irregularities, Stark said.

John Posthill, a volunteer with the Pat McCrory campaign, filed four protests Friday with the Durham County Board of Elections. (CJ photo by Dan Way)
John Posthill, a volunteer with the Pat McCrory campaign, filed four protests Friday with the Durham County Board of Elections. (CJ photo by Dan Way)

John Posthill, a witness at Friday’s hearing who said he is a volunteer with the McCrory campaign, filed four protests in Durham. Republican state auditor candidate Chuck Stuber also has asked for a statewide recount, which would include Durham.

Brian warned the audience, which was overwhelmingly opposed to allowing a recount, that the proceeding was “a quasi-judicial hearing” similar to court. He asked that protest signs be removed, saying, “This is not a situation where politics enters into it,” which drew peals of laughter from the crowd.

Demonstrators waved signs and chanted protests outside before the hearing.

Durham in Defiance, a group opposing the election of President-elect Donald Trump, organized a demonstration Friday morning outside the Durham County Board of Elections hearing. (CJ photo by Dan Way)
Durham in Defiance, a group opposing the election of President-elect Donald Trump, organized a demonstration Friday morning outside the Durham County Board of Elections hearing. (CJ photo by Dan Way)

Five witnesses testified during the more than two-hour evidentiary hearing, which was pockmarked with derisive laughter, group finger snapping, hissing, and catcalls from the audience.

Stark objected to allowing the testimony of three other witnesses to be placed in the hearing record. They used the forum to complain about racism, white power structures, Republican voter suppression, homelessness, women’s issues, and other social justice matters.

Stark also objected, unsuccessfully, to allowing submission of a memorandum into evidence from opposing attorney Kevin Hamilton. He said Hamilton initially presented himself as representing Attorney General Roy Cooper, but during the hearing he said he represented Cooper as attorney general, the Cooper for governor campaign, and the North Carolina Democratic Party.

Hamilton clarified that he was representing all three, and Brian overruled the objection.

The bulk of testimony presented was esoteric explanations of the technology in six M100 voting machines, which were used in five one-stop early vote locations, and one Election Day precinct.

The antiquated machines use software that can only accept 65,530 votes. Because the machines were not cleared daily, but stored votes throughout early voting, and because voters could select five county commissioner candidates, the software limitation was exceeded, creating an error message. Votes cast after the limit was reached were recorded by hand.

Some witnesses discussed the process by which votes are recorded on memory cards, then counted by tabulation aggregators, and ultimately printed onto paper audit tapes that are the official records of all contest vote totals. Others testified about the process and procedures used to safeguard and store the voting materials from setup through counting on Election Day.

Brian Neesby, an analyst with the State Board of Elections, testified Friday about alleged discrepancies in Durham vote tallies. (CJ photo by Dan Way)
Brian Neesby, an analyst with the State Board of Elections, testified Friday about alleged discrepancies in Durham vote tallies. (CJ photo by Dan Way)

Brian Neesby, a business systems analyst at the State Board of Elections, testified that he did an analysis of the Durham vote issues. He concluded with confidence there were some minor errors that involved a few votes in a number of local and statewide races, but the gubernatorial race comparison came out with the same numbers, and the paper audit tapes were accurate measures of the vote totals.

Ben Swartz, state certification manager for Election Systems & Software LLC, the voting machine vendor, testified to the operational capabilities and limitations of the voting machines, and mostly corroborated Neesby’s testimony.

But both men testified they did not know or were not able to address some of Stark’s technological and other questions.

Former Durham City Councilman John Lloyd, who works with software systems, was called to the stand by Stark.

He said he was not as confident as Neesby and Swartz in the validity of the audit tapes given the age of the machines, which were introduced when Windows 95 was new to the market, and other issues.

A big concern is that when an error is generated it can commonly “cause a number of different anomalies. We’re assuming all of the anomalies … are innocuous” that Neesby and Swartz mentioned, Lloyd said. “I don’t know that that’s been investigated.” He said he believes if a memory card encounters problems doing the math on vote totals it could affect the audit tape.

During closing arguments, Stark said that sufficient evidence was presented to order a recount.

He said the memory cards showed errors due to insufficient software capacity, Neesby’s analysis showed “there are discrepancies” in the two data streams he comparatively tested, and the audit tapes from which election contest winners are determined are run off of the memory cards at issue and could “suffer the same limitations as the card does.”

If the problem with the early voting machines was a software limitation that creates an error after 65,000-plus votes are entered, that does not explain how the same model voting machine used in Precinct 29 on Election Day encountered the same problem, yet its volume was well below the software limit.

He said the 94,000 Durham votes in question is enough “that if there is a serious anomaly there could easily be enough ballots to make a difference” in the outcome of the gubernatorial and other statewide races. He urged the board to use is lawful discretion to conduct a recount, or send the matter to the state board to decide.

Hamilton successfully argued that the board gave Stark “an opportunity to come forward with competent evidence rather than empty accusations and speculation to support his allegations concerning the conduct of the election, and by any measure he’s failed to do so.

“In fact, the evidence presented shows that the Durham County Board of Elections capably, conscientiously, and transparently responded to problems with a handful of PCM-CIA [memory] cards in a manner designed to ensure a proper count of the votes in Durham County,” Hamilton said.

Protests rejected in other counties

Protests lodged in Wake, Forsyth, Halifax, and other counties were rejected Friday by their Republican-led county election boards as well, though hearings will take place on unresolved protests over the next week. The McCrory campaign also may make a formal request for the State Board of Elections to resolve complaints and challenges.

As of Friday afternoon, provisional and absentee ballots counted and submitted to the State Board of Elections extended Cooper’s lead over McCrory from 4,700 on election night to 6,600. When the election is certified statewide — a procedure that should take place no later than Dec. 9 — if Cooper’s lead over McCrory is fewer than 10,000 votes, the governor can request a recount.

Counties have until Nov. 28 to submit their canvasses to the state board, though many said they planned to have theirs completed before Thanksgiving.

On Friday Cooper claimed that his lead over McCrory was insurmountable.

Duke University other campus ‘anomalies’

The conservative site American Lens raised questions about the voter registrations of 240 Duke University students who listed 1 University Drive, Durham — a parking lot on the Duke campus — as their residence. The site noted a similar issue at N.C. Central University involving more than 300 student registrations.

Attorney Gerry Cohen, former general counsel at the General Assembly, pointed out on Twitter that the University Drive location was used as an early voting site at Duke and that students who used the site for same-day registration would have that address on State Board of Elections records.* The individual addresses of students are required to be on the registration cards filed with the county board of elections.

*The initial version of this story incorrectly said state elections officials would use the early voting address as the registrants’ address. In a Tweet, Gerry Cohen corrected that information. We regret the error and appreciate the clarification.