Election Concerns Continue with Second Hearing Scheduled Friday in Durham | News
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Wednesday, November 16, 2016

Election Concerns Continue with Second Hearing Scheduled Friday in Durham

Posted by on Wed, Nov 16, 2016 at 5:15 PM

click to enlarge Members of the public fill the back of the Durham County Commission chamber in the Durham County government building where a preliminary hearing was being held to decide whether or not to hold an evidentiary hearing about election day results in Durham County. - ALEX BOERNER
  • Alex Boerner
  • Members of the public fill the back of the Durham County Commission chamber in the Durham County government building where a preliminary hearing was being held to decide whether or not to hold an evidentiary hearing about election day results in Durham County.

The concerns about Election Day vote totals continues as the Durham County Board of Elections split down party lines to approve holding an evidentiary hearing on Friday, as part of the ongoing saga of the “sudden emergence of 90,000 ballots.”


Actually, it’s 94,159. 


Let’s backup—because everyone is counting, it seems. The votes in question were from five early voting locations as well as one Election Day precinct. When the county went to upload the vote totals from the card in the tabulation machine, an error occurred, making it necessary to use the paper results tape that is signed off by precinct judges. Those were manually entered by a bipartisan team on November 8—but didn’t get entered until late in the evening.


Thomas Stark, the general counsel for the NCGOP, filed an election protest. He did not do so on behalf of the NCGOP, instead, he made it known during the preliminary hearing on Wednesday that he was not representing the party, rather himself as a resident of Durham County.


The preliminary hearing was to determine if there was enough evidence to hold an evidentiary hearing on Friday. And as Durham County Board of Elections Chairman William Brian said, there is a “low bar” to cross in these hearings.


click to enlarge Thomas Stark makes his argument to review and recount ballots cast in Durham County to the Durham County Board of Elections in a preliminary hearing Wednesday morning. - ALEX BOERNER
  • Alex Boerner
  • Thomas Stark makes his argument to review and recount ballots cast in Durham County to the Durham County Board of Elections in a preliminary hearing Wednesday morning.

And apparently Stark did just that, that because the board voted down party lines 2:1 to hold the evidentiary hearing. The decision came after hearing testimony from Stark, an affidavit from a business systems analyst from the North Carolina State Board of Elections, and input from representatives from the company makes of the election software and machines used in Durham and across the state.


Stark on Wednesday said as he understands the tabulation machines, there are two card slots, but in Durham, only one slot was utilized. Once the cards were removed he said, “elections staff wasn’t confident the cards were able to upload the data.”


“The concern that we had, was no one can answer our question, whether the tabulator number was necessarily accurate,” Stark said. “It’s still an open question in light of the state board’s affidavit which indicates that there are some errors between what appears on the tapes and the data (that was on the cards).”


Indeed the affidavit from Brain Neesby, a business systems analyst with the state board, did say there were some discrepancies. In the affidavit, Neesby said there were thirty-three contests on the ballot, and after reviewing data logs that “record attempts to load results from the five PCMCIA cards” into the system, it indicated there was an error that did show minor discrepancies of county-level results—not the governor’s race. The error occurs when “a single contest contains more than 65,535 votes due to the fact that the results are read onto only two bytes of memory.” This was the case for the Durham County Board of Commissioners race.


He did not believe there was an issue with the vote totals on the results tape, though.


“Again, the crux of this is that there appears to be a disagreement by admission of the board from the very start between what the cards showed and what the tapes showed and therefore that is reason enough to recount those ballots and make sure we have right totals,” Stark says.


When asked by Brian to briefly summarize what evidence would be brought forward on Friday. Stark explained that an election judge would be able to talk about standard procedure and the machines used. Stark would also bring an observer to talk about what he observed on the night of November 8 in terms of card handling and conversations that happened in the boardroom. And then another man who could talk about how you can corrupt a PCMCIA card—which Stark said he didn’t believe happened in Durham, but was important to bring up as well.

click to enlarge Jennifer Longee, a teacher at Durham Academy, reacts to hearing the Durham County Board of Elections' decision to hold an evidentiary hearing to review the early ballot counts in Durham County. Longee was disappointed that "Stark is questioning the validity of the ballots," she said. "I'm scared that my vote's not going to count," she added. - ALEX BOERNER
  • Alex Boerner
  • Jennifer Longee, a teacher at Durham Academy, reacts to hearing the Durham County Board of Elections' decision to hold an evidentiary hearing to review the early ballot counts in Durham County. Longee was disappointed that "Stark is questioning the validity of the ballots," she said. "I'm scared that my vote's not going to count," she added.

Let’s take a second and think about what it means to rerun, or even hand-count ballots.


Deputy Director of the Board of Election George McCue says it would take days to count all 94,159 either by hand or rerunning them through machines.


“Frankly, we’d be more comfortable with a manual recount,” Stark says.


Kathy Rogers and Ben Swartz with Elections Systems and Software, based in Nebraska, made the trip to Durham to explain what happened to the cards.


Rogers says the cards in question hit the limitations. Those are limitations are also present in the software used by the state.


“It’s not an error … It’s no different than your phone which you can only put so many photos or so many videos on. There’s a limit,” she says.


Brian asked Swartz that if the cards had been corrupted in some way, would the tapes also be corrupted.


Swartz’s answer—”No.”


Brian asked again: “Are the cards corrupted? Or did they just hit a limit and then just stop recording data?”


Swartz replied, “The cards are actually fine. It’s the ERM software processing the card that hit the limit.”


The ERM software is used to aggregate the data across the state. That limitation has no impact on the tape, Swartz confirmed during Brian’s questioning.


When it came down to it, Stark couldn’t provide any hard evidence as to why the recount was necessary, but two members of the board determined it would be worth having the evidentiary hearing on Friday.


The meeting will be at 11 a.m. on November 18, in the Durham County Health and Human Services Building, 414 E. Main Street.

It's no surprise that both Republicans and Democrats in the state are reacting to the news.

Gov. Pat McCrory's campaign spokesman, Ricky Diaz released this statement after the news broke of the evidentiary hearing: "We are pleased the Durham County Board of Elections decided to move forward with proceedings and hopefully will begin to get answers to the many questions people have. Last night, the State Board of Elections released an affidavit from one of their staff that identified at least 6 errors in Durham’s reported numbers, and these public officials must make sure that all of their reported numbers are 100% accurate. We believe it is in everyone's best interest to get to the bottom of what happened so that people can have faith in the results, process and system."

North Carolina House Representative Graig Meyer was on hand Wednesday morning during the probable cause hearing. After the board's ruling, he said, "We have no position on the board's decision to hold an evidentiary hearing. That's the board's right to decide what to do on the process. However, we believe that Mr. Stark has provided no evidence that there has been any sort of impropriety in the process of counting ballots. If he does have evidence, we ask that he present it as quickly as possible because we do believe this process needs to proceed quickly so that voters can know the results of this election."

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