Common Cause New York and The Black Institute – a public policy think tank in New York focused on issues impacting Black New Yorkers – have filed a lawsuit to prevent the usage of controversial touch screen ExpressVote XL voting machines. The two groups, along with five individuals, are suing the state Board of Elections, claiming that voters cannot independently and privately verify votes they cast through the machines – a requirement under state law.
Despite opposition from election security groups and experts, the state Board of Elections approved the ExpressVote XL machines earlier this year. Unlike voting machines used throughout New York, voters would cast their vote through a touch screen rather than by marking a paper ballot and feeding that ballot into a machine to get counted. But since their approval, no local Board of Elections has purchased the machines. The new lawsuit seeks to block localities from buying them and putting them into use in the 2024 elections.
“The certification of the ExpressVote XL – an expensive and below standard voting machine – was a major step backwards for New York, and an exceedingly poor decision ahead of the 2024 presidential election year when election security remains a fraught topic,” Susan Lerner, executive director of Common Cause New York, said in a statement. “Paper ballots marked by the voter – which New York currently uses – are the preferred election security standard.”
Groups like Common Cause and other election security experts have warned against the use of ExpressVote XL for years. A key part of their argument, and the basis of the new lawsuit, is that voters can’t adequately verify that their ballot is correct before submitting it. Whereas with a hand-marked paper ballot that a voter can ensure they marked the correct candidate, voters cannot view their ballot with ExpressVote XL. Instead, they can review a ballot summary card based on their electronic touch screen selection, printed based on bar codes associated with candidates in the machine.
In a recent example of machine malfunctions related directly to the issue of the ability to verify one’s ballot, machines in Pennsylvania’s Northampton County printed the wrong information for votes cast for two judicial candidates earlier this month. Although local election officials said that the votes were counted properly, the summary card that voters could review did not print the correct corresponding vote. That malfunction is just the latest in a series that groups like Common Cause New York have pointed to as consistent evidence that the touch screen voting machines are not up to snuff.
“The history of misinformation and disenfranchisement in elections has left our communities wary and often disconnected from the electoral process, and partisan redistricting efforts nationwide have continuously weakened the ability for communities of color to elect someone of their choice,” Bertha Lewis, founder and president of The Black Institute, said in a statement. “Introducing a voting system that lacks transparency and fails to meet legal standards only exacerbates this distrust.”
A handful of county BOEs have already said that they don’t intend to purchase ExpressVoteXL machines due to the concerns expressed by election security experts. In New York City, Public Advocate Jumaane Williams introduced a resolution in September that calls on the local election officials not to use the machines as well.
At the state level, lawmakers failed to approve legislation that would have made touch screen or hybrid voting machines illegal before the Board of Elections approved ExpressVote XL. Although the state Senate passed the legislation in 2022, it stalled in the Assembly. According to reporting from New York Focus, the bill was the subject of intense opposition lobbying on behalf of Election Systems & Software, the company that makes ExpressVote XL. A similar bill – dubbed the Voting Integrity and Verification Act – passed in the state Senate earlier this year and would have required paper ballots in all elections, but it again did not get approval in the Assembly.
A spokesperson for Election Systems & Software did not immediately return a request for comment, but the company has consistently defended the security of its voting machines and has affirmed that they are adequately voter-verifiable. An Arkansas judge in September sided with the company, throwing out a legal challenge to ExpressVote XL machines similar to the New York lawsuit. The judge in that case said that the machines give voters an “opportunity to verify in a private and independent manner” in accordance with state law in Arkansas. “The ExpressVote paper ballot clearly and securely records voter intent and allows voters to see their choices before casting their ballot,” Chris Wlaschin, ES&S senior vice president of security, said in a statement at the time. “ES&S’ paper-based voting systems have been used in thousands of elections by jurisdictions across the U.S., and we’re proud to provide voters the ability (to) privately and independently mark, verify and cast their ballots.”
The state Board of Elections declined to comment on pending litigation.