Three out of the four state Board of Elections commissioners voted to certify the controversial touch screen ExpressVoteXL voting machines, with two late amendments. It paves the way for local boards of elections to begin purchasing and using the machines as soon as 2024. The machines have gained significant scrutiny for potential vulnerabilities to hacking or other intrusion methods, in addition to their lack of traditional paper ballots.
Commissioners engaged in a lengthy – and at times heated – debate on Wednesday over whether to certify the touch screen voting machines, bringing up concerns about the summary cards the machines print in lieu of traditional paper ballots that voters mark by hand. Democratic Co-Chair Doug Kellner was the lone “no” vote against certifying the machines, stating that it should include a function to print a traditional ballot in addition to a summary card that only lists a voter’s choices, rather than the full ballot the voter sees on the screen when they vote.
Kellner initially introduced an alternate resolution that would certify part of what Election Services & Software, the manufacturer of ExpressVoteXL, has put before the board, without certifying the machine itself. That failed by a vote of 2-2. But an amendment to the original resolution approved unanimously requires ES&S to adequately address a number of source code anomalies. A second approved amendment made note of the fact that a hand audit of any votes cast with a barcode was the only way in New York to audit such votes, rather than an automated audit.
Kellner predicted that the certification of the ExpressVoteXL machines will become the subject of a lawsuit before the final vote. “I don’t have anything more to say,” Kellner said. “We talked about it at great length, and the next step will be in the courts.”
Prior to the vote, the ExpressVoteXL machines underwent extensive testing by the state Board of Elections, which determined that it met all standards for certification. Election Services & Software, the company that manufactures the ExpressVoteXL machines, has also repeatedly stood by the security of its product and has said the machines “meet and exceed” both state and federal requirements.
When the machines were first unveiled in the state for potential certification in 2020, good-government groups and election security experts immediately urged officials not to begin using them. One of the most notable examples they cited came from Northampton County in Pennsylvania, where a glitch with ExpressVoteXL machines resulted in a severe undercount of a candidate’s vote count in 2019. The local board of elections in the county cast a vote of no confidence in the machines following the mistake.
Lawmakers have also introduced legislation that has stalled in the Assembly that would require all voting machines in New York to use paper ballots, which would make touch screen machines like ExpressVoteXL unable to be used in the state. Rather than marking a paper ballot with a pen that a machine then reads, voters are given a blank summary card made of thermal paper that they feed into the machine, choose their candidates on the screen and have those choices recorded on the summary card with their names. But the card represents a backup record and is not what gets counted by the machine. The actual vote gets counted as a barcode that good-government advocates warned do not allow voters to properly examine their vote before casting it, since those barcodes are not readable by humans.
Security experts and groups that promote fair elections sent a letter to lawmakers last year urging them to approve the paper ballot requirement legislation, warning that touch screen voting machines were more vulnerable to hacking and that the lack of a traditional paper trail of hand-marked ballots would make elections harder to audit.
Good-government and election security groups made a final plea on Monday ahead of the commissioners’ vote, with Common Cause New York, the Let NY Vote coalition and SMART Elections sending letters to commissioners asking them to reject certification. Common Cause asserted in its letter that the machines failed to meet the state’s source code security measures, despite the Board of Elections saying they did, and pointed to the inability of voters to verify their votes. The letter from SMART Elections raised questions about the durability of the thermal paper ExpressVoteXL uses for its paper records, as well as mistakes that would not happen with paper ballots. ES&S said its thermal paper had been tested to last for years, and the Board of Elections said the described flaw would get caught in a hand-count audit.
Correction: An earlier version of this story incorrectly stated the vote total of the failed resolution presented by Kellner.