Sorry, Pat. Board of Elections Says 'No' to Recount in Durham. | News
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Friday, November 18, 2016

Sorry, Pat. Board of Elections Says 'No' to Recount in Durham.

Posted by on Fri, Nov 18, 2016 at 4:48 PM

Pat McCrory was dealt another blow on Friday, as the Durham County Board of Elections voted unanimously to dismiss an election protest filed by attorney Thomas Stark to recount 94,159 ballots.


Stark, the general counsel for the NCGOP, filed his protest a week ago, claiming malfeasance impacted the results—the late vote counts were due to an error reading the electronic card that keeps a record of the votes in the tabulator machines. As explained by a business systems analyst from the North Carolina State Board of Elections and the company behind the software used across the state, the error occurred after the cards hit a memory limit.


Stark said he wasn’t sure what he was going to do next, but was planning to evaluate all of his options, including filing an appeal with the state board.


Brian Neesby, a business systems analyst with the state board, testified that it’s a rare error because of the 65,530 threshold per precinct, per contest, but it has happened before—including in 2004 in Guilford County.


Neesby analyzed data from the cards (not the physical cards) provided to him by the Durham County Board of Elections’ Interim Director Kate Cosner and found minor discrepancies in county-level races, and then “human errors”—but no errors were found in the totals for the gubernatorial race.


In fact, when questioned by board secretary Dawn Baxton (the lone Democrat on the board) about whether or not the numbers that made their way onto the election software were identical to the numbers that were manually entered, he replied: “For the governor’s race, yes.”


Neesby also said the results tapes—which were used for the manual entry on Election Day—are the “official record” of the results.


Stark, however, harped on the fact Neesby could not testify as to whether or not the tapes matched the ballots in the tabulator machine.


“I just compared what was read onto the Unity software via card and what was manually entered onto the Unity software via people and then compare the two and showed where there weren't any discrepancies,” Neesby said.


Ben Swartz, an employee at ES&S, the company behind the software and equipment used in the state, said the card will record “as many votes as you are able to cast.” However, the software used to process the cards “doesn’t accept anything after 65,530,” thus the state-used software played a role in the error.


The data, Swartz confirmed, was on the card but the software wasn’t able to read it. Swartz also confirmed the tape was a printout of the tabulator, and the numbers on the card and the tape cannot be different, and that the board should rely on the tapes.


An observer in the room on Election Day while the ballot results were being entered, John Posthill, also testified on Friday as to what he saw and heard during the meeting.


Part of his testimony about a conversation he heard while in the room, however, was objected to because of hearsay.


Posthill was a McCrory campaign volunteer hired to do a “variety of things on Election Day,” including observe and get early vote totals.


Stark, who called on Posthill to testify, also called former Durham City councilman John Lloyd to testify that it’s easy to find information to corrupt the cards used in the tabulation machines. Lloyd works in information technology and has knowledge of the limitations of memory cards. But neither Stark or Lloyd could present evidence that the cards had been corrupted.


“In the name of open, transparent elections, my concern is I don’t have evidence that it didn’t happen,” Lloyd said.


In his closing argument, Stark said, “it seems appropriate where you have ninety-four thousand votes involved, to go ahead and be sure that you have a correct number because it involves so many votes it can put a statewide race in doubt.”


Kevin Hamilton, an attorney representing Roy Cooper’s campaign and the North Carolina Democratic Party, said this was an opportunity to present evidence, rather than “empty accusations.”


“By any measure, he’s failed to do so,” Hamilton said.


And after the arguments, without any discussion, the board took its unanimous vote.

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