August 15, 2019
VIA OVERNIGHT DELIVERY
Damon Circosta
Chair, North Carolina State Board of Elections
430 N. Salisbury St.
Raleigh, NC 27603
Re:

Decertification and Replacement of North Carolina’s iVotronic Voting Machines

Dear Chair Circosta:
We write to urge you to ensure that every voter in North Carolina has access to a voting
system in 2020 that is sufficiently reliable to guarantee their fundamental right to vote. In
particular, the North Carolina State Board of Elections (“NCSBE,” or the “Board”) should
ensure that, going into 2020, North Carolina counties may no longer use the Election Systems &
Software (“ES&S”) iVotronic Direct Recording Electronic (“DRE”) machines. Under currently
operative law, counties are required to retire these machines by December 1, 2019. However, the
North Carolina legislature is currently considering bills that would allow a county to petition the
Board for authorization to continue using its DRE machines until December 1, 2020. Enactment
of any of those bills, however, would not change the fundamental problem: the continued use of
the iVotronic system violates the constitutional rights of voters to access a reliable voting system
that will ensure that their votes are properly counted.
The iVotronic system suffers from serious deficiencies. Leading security researchers
have repeatedly demonstrated that it lacks sufficient safeguards to meet the demands of the
current threat environment facing election systems. Accordingly, we write to formally request
that you take immediate action to guarantee that no North Carolina voter is forced to vote using
the iVotronic system in 2020, either by exercising the Board’s authority to decertify that system
or by committing that, even if the legislature changes the decertification deadline, the Board will
not authorize any county to continue using the system after December 1, 2019.
I.

Background

Foreign actors attempted to interfere with the 2016 national elections, and there is an
acute risk that they will interfere with the upcoming presidential election. The Senate Select
Committee on Intelligence has concluded that, during the 2016 election cycle, the Russian
government targeted the election systems of all 50 states in a campaign to scan and infiltrate state
election infrastructure. S. Select Comm. on Intelligence, 116th Cong., Russian Active Measures
Campaigns and Interference in the 2016 U.S. Election, Volume 1: Russian Efforts Against

The Protect Democracy Project
2020 Pennsylvania Ave NW, #163
Washington, DC 20006

 Election Infrastructure, at 12 (2019) (hereinafter “Russian Active Measures Campaigns”).1
While the Board has publicly stated that North Carolina was not among the states notified that its
systems were scanned, we understand the Board in 2016 did not maintain sufficient logs needed
to detect attempts that may have occurred. Previously, the Senate Intelligence Committee found
that DRE machines “are at highest risk for security flaws” and called for their replacement. Staff
of S. Select Comm. On Intelligence, 115th Cong., Russian Targeting of Election Infrastructure
During the 2016 Election: Summary of Initial Findings and Recommendations, at 4 (2018).2
Recognizing these threats, in late July of this year, the Committee emphasized that “states should
take urgent steps to replace outdated and vulnerable voting systems.” Russian Active Measures
Campaigns at 58.3 Also in late July, former FBI Director and Special Counsel Robert Mueller
testified to the House Permanent Select Committee on Intelligence that Russian attempts to
interfere in the elections continue and will continue into the 2020 cycle. Open Hearing on the
Investigation into Russian Interference in the 2016 Presidential Election Before the H.
Permanent Select Comm. on Intelligence, 116th Cong. (2019) (comments by Robert S. Mueller
III, Former Spec. Counsel, in response to questioning by Rep. Will Hurd, Member, H. Permanent
Select Comm. on Intelligence).4
The iVotronic machines are precisely the kind of insecure DRE machines that must be
replaced to protect the integrity of elections. Flaws in the iVotronic’s hardware and software
create vulnerabilities that sophisticated hackers could exploit in a manner that would cause
widespread disruption. In 2007, several leading computer security and computer science experts
examined the iVotronic system in a report commissioned by the Ohio Secretary of State. They
concluded that it “lack[s] the fundamental technical controls necessary to guarantee a trustworthy
election under operational conditions.” Ohio Sec’y of State, EVEREST: Evaluation and
Validation of Election-Related Equipment, Standards and Testing, Final Report, at 29 (2007).5 A
separate group of researchers commissioned by the Florida Department of State reached similar
conclusions about iVotronic machines. Alec Yasinsac et al., Software Review and Security
Analysis of the ES&S iVotronic 8.0.1.2 Voting Machine Firmware 58 (2007).6
Even without foreign interference, these machines have experienced calibration issues
that render them unreliable at properly recording North Carolinians’ votes. For example, in 2014,
1 voter out of every 1,000 in Wilson County had their vote flipped by a machine, and the same
happened for a handful of voters in Guilford County. Calibration Problems Reported for Voting
Machines in Wilson, Guilford, WRAL.com, Nov. 3, 2014.7 Mecklenburg County voters
complained of similar issues after the 2018 elections. Jim Morrill, Back to the Future?
1

https://www.intelligence.senate.gov/sites/default/files/documents/Report_Volume1.pdf

2

https://www.burr.senate.gov/imo/media/doc/RussRptInstlmt1-%20ElecSec%20Findings,Recs2.pdf.

3

https://www.intelligence.senate.gov/sites/default/files/documents/Report_Volume1.pdf.

4

See exchange beginning at 1:52:23, https://www.c-span.org/video/?462629-1/robert-mueller-testifies-houseintelligence-committee.
5

https://www.eac.gov/assets/1/28/EVEREST.pdf.

6

https://people.eecs.berkeley.edu/~daw/papers/sarasota07.pdf.

7

https://www.wral.com/calibration-problems-reported-for-voting-machines-in-wilson-guilford/14145524/.

2

 Mecklenburg County Planning to Go to Paper Ballots by 2020, Charlotte Observer, Nov. 21,
2018.8
The difficulty of meaningful post-election audits compounds the security vulnerabilities
endemic to the iVotronic system. The iVotronic machines do not utilize or create any paper
ballot. Although they have been modified in North Carolina to print a voter-verifiable paper
audit trail (VVPAT)—essentially, a paper receipt that a voter can see scrolling under clear plastic
at the moment they log any vote—the VVPAT is insufficient to remedy the machines’
deficiencies. Research has shown that VVPATs “are difficult to accurately audit and that voters
often fail to notice if the printed record doesn’t match their votes.” Russian Active Measures
Campaigns at 42 n. 298 (quoting Written Statement by J. Alex Halderman, June 21, 2017).
Experts in election administration agree that post-election audits are an indispensable element in
securing elections against cyberattack. See, e.g., Lawrence Norden et al., Brennan Center for
Justice, Post-Election Audits: Restoring Trust in Elections, (2007); American Statistical
Association, Statement on Risk-Limiting Post-Election Audits (Apr. 17, 2010).9 Moreover, the
VVPAT does not provide the voter with the opportunity to review all their selections when they
are finished voting, significantly reducing the ability of individual voters to engage in
meaningful oversight.
The North Carolina legislature has recognized the urgent need to replace the aging DRE
machines. In 2013, the legislature enacted a bill to decertify the DRE machines as of January
2018. See Voter Information Verification Act, secs. 30.8–30.9, 2013 N.C. Sess. Laws 1505,
1574. After that date, only voting equipment that used paper ballots would be permissible in
North Carolina. Id. Subsequently, the legislature has twice extended the deadline for decertifying
DREs to allow the Board and the counties more time to choose new voting systems. See Act of
June 22, 2015, secs. 6.(a)–(b)., §§ 30.8–9, 2015 N.C. Sess. Laws 225, 229–230; Act of June 20,
2018, secs. 3.11.(a)–(b), §§ 30.8–9, 2018 N.C. Sess. Law 278, 286–287. But the decertification
of the DREs should not be delayed further. It is time to decertify the machines now.10
II.

Legal Framework

The iVotronic machines must be decertified because continuing their use impermissibly
burdens the voting rights of voters in counties using that system. The constitutional right to vote
is not satisfied by simply allowing a voter to place a ballot in a ballot box or enter selections on a
touchscreen. The Constitution guarantees each voter the right to cast an effective vote—that is, a
ballot that is counted correctly towards the outcome of the election. The Supreme Court has held
that “[o]bviously included within the right to choose, secured by the Constitution, is the right of
qualified voters within a state to cast their ballots and have them counted.” United States v.
8

https://www.charlotteobserver.com/news/politics-government/election/article221669965.html.

9

https://www.brennancenter.org/sites/default/files/legacy/d/download_file_50228.pdf;
http://www.amstat.org/asa/files/pdfs/POL-Risk-Limiting_Endorsement.pdf.
10

We recognize the imperative of ensuring access to the polls for voters with disabilities. The approach taken in
North Carolina’s existing hand-marked paper ballot jurisdictions, which provides access to an automated ballotmarking device for voters who need it, is the right one.

3

 Classic, 313 U.S. 299, 315 (1941); see also United States v. Saylor, 322 U.S. 385, 387–88
(1944). The federal Constitution further prohibits states from subjecting voters to arbitrary
disparities in the effectiveness of their votes. See Bush v. Gore, 531 U.S. 98, 104–05 (2000)
(“Having once granted the right to vote on equal terms, the State may not, by later arbitrary and
disparate treatment, value one person’s vote over another.”). The North Carolina Constitution
similarly protects voters’ rights. See State ex rel. Martin v. Preston, S.E.2d 473, 481 (N.C. 1989)
(citing White v. Pate, 308 S.E.2d 199, 205 (N.C. 1983)).
Indeed, a federal district court in Georgia recently applied these principles in ruling that
plaintiffs challenging a similar DRE system are likely to succeed on the merits of their case. The
plaintiffs in Curling v. Kemp, 334 F. Supp. 3d 1303, 1316 (N.D. Ga. 2018), challenged the
constitutional adequacy of Georgia’s DRE system. Like the iVotronic system, that system also
suffers from significant security flaws resulting from vulnerabilities in its architecture and
software. Id. at 1308. The plaintiffs in Curling claimed that the continued use of Georgia’s DREbased system violates their right to vote under the Due Process Clause and Equal Protection
Clause of the Fourteenth Amendment. Id. at 1312. Following a preliminary injunction hearing,
the court found that “Plaintiffs have shown that their Fourteenth Amendment rights to Due
Process and Equal Protection have been burdened. Put differently, the State’s continued reliance
on the use of DRE machines in public elections likely results in ‘a debasement or dilution of the
weight of [Plaintiffs’] vote[s],’ even if such conduct does not completely deny Plaintiffs the right
to vote.” Id. at 1322 (quoting Bush v. Gore, 531 U.S. 98 at 105 (alterations in original)).
Elections conducted using the iVotronic system do not meet constitutional standards.
Leading academics and computer scientists demonstrated over a decade ago that the iVotronic
system was susceptible to cyberattacks that could disrupt or undermine an election. These flaws
are compounded by inadequacy of the VVPAT as a substitute for paper ballots for audit
purposes. And, because the iVotronics are particularly susceptible to precinct-level cyberattacks,
their continued use presents a real risk that, in the event of such an attack, voters in different
precincts would arbitrarily be treated differently—that is, whether a voter’s ballot is counted
would depend upon which precinct they lived in. These flaws, taken together, render the
iVotronic machines constitutionally deficient.
III.

Conclusion

We strongly urge you to take immediate steps to ensure that no North Carolina voter will
be required to use the iVotronic system in 2020. The Board must guarantee that no voters’
constitutional rights are violated by the continued use of the iVotronic system, either by
immediately decertifying the system or by committing that, if the legislature extends the
decertification deadline, it will not grant any county an extension of the deadline to discontinue
the use of that system. The Board should actively support counties still relying on iVotronic
machines in rapidly implementing new systems before early voting for the presidential primaries
begins.
Failure to take immediate steps to comply with the Constitution and properly secure the
voting rights of North Carolina voters will result in litigation.
4

 We would be happy to discuss these issues further in person or by phone. I can be
reached at jess.marsden@protectdemocracy.org and (202) 672-4812.
Sincerely,

Jessica Marsden
Counsel, Protect Democracy
NC Bar No. 50855

Cc:

Stella Anderson, Secretary
Kenneth Raymond, Member
David C. Black, Member
Jeff Carmon III, Member
Katelyn Love, General Counsel

5