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Monday, August 16, 2010

North Carolina's Next Election Fiasco- Statewide Instant Runoff Voting for Judge Wynn's seat

NC's next election fiasco - filling NC Appeals Judge Wynn's seat. The bad news - IRV will be used statewide for this contest and our voting machines can't tally it. Other contests will use regular election methods. That makes it extra confusing. The Good news, the candidates/potential plaintiffs will be attorneys.

North Carolina voting machines can't tally IRV. Wouldn't it be ironic if this election was tallied by a jury-rigged system? "There are no provisions on ES&S equipment to tabulate IRV." ~
Keith Long , Voting System Project Manager for the North Carolina State Board of Elections Jan 7, 2008.

Gary Robertson at AP is reporting that for Wynn vacancy that the IRV counting would only add a few extra days to tallying election. That is certainly optimistic! Consider the SBoE's own warning that IRV was too dangerous to use IRV in the May 2008 primaries. "We can use November 2007 as a pilot and not use IRV in May 2008 because it poses too much of a risk. " ~
NC State Board of Elections March 6, 2007

NC judge's departure means one more election
By GARY D. ROBERTSON, Associated Press Writer

RALEIGH, N.C. — As state Court of Appeals Judge Jim Wynn moves to the federal appellate bench this week, it means North Carolina voters could choose his replacement in November using a form of voting rarely seen in the United States.

Wynn's swearing-in to the 4th U.S. Circuit Court of Appeals creates a vacancy on North Carolina's 15-member intermediate appeals court. Wynn was confirmed by the U.S. Senate late last week.

Gov. Beverly Perdue can name Wynn's replacement to serve until the end of the year. State law requires voters to choose a successor in November to begin a new eight-year term. Four other Court of Appeals seats also are up for re-election this fall.

If at least three candidates file for Wynn's old seat, the election winner would be counted using instant runoff voting. Voters would rank the candidates in order of preference.

If no candidate receives a majority of the first-choice votes, election officials turn to the ballots of voters whose first-choice candidate was eliminated and count the votes for the two top votegetters.

Those choices are added to the original counts of the two leaders. The candidate with the most combined votes is the winner.

Several cities nationwide — including Cary and Hendersonville — have experimented with instant runoff voting in recent years to avoid costly traditional runoff elections in which a small fraction of voters turn out. While the ranking concept was used by a few states about 100 years ago, its use ended in the 1930s, according to FairVote, a nonprofit election reform group. No state has used it since then for a statewide race, FairVote Executive Director Rob Richie said.

"The full-fledged ranking of candidates had not been done in a long time," Richie said in a phone interview.

The General Assembly created the process for judicial elections following a vacancy after eight people ran for the seat opened when Justice Bob Orr left the state Supreme Court in summer 2004. Paul Newby won the seat after receiving only 23 percent of the ballots. Wynn finished second.

This method, according to supporters, would ensure the winner had the support of a
majority of voters. Instant runoff opponents say the process is confusing to voters, requires intense voter education and opens the count to potential mischief.

State elections director Gary Bartlett said staff members are preparing for the race as if instant runoff voting will occur. A one-week candidate filing period for the seat is expected to begin later this month. At least one candidate, Raleigh attorney Chris Dillon, has already announced his intent to run.

If no candidates wins a majority outright and instant runoff voting is used, it likely will mean voters won't know the winner until a few days after Election Day, Bartlett said. That's because most ballots will have to be counted again, whether by hand or through an optical scan machine, to identify the rankings for the race. The state's touch-screen machines — used by about 40 percent of the voters — can be reprogrammed to count ranked ballots, but Bartlett said he's unsure whether that will be recommended to the board.

"This will be a massive undertaking," he said. "We will have to have an intense education effort, not only for the election officials but also for the voters."

The AP article doesn't tell you that Hendersonville NC never tallied the IRV votes and had no legal way to do so. Cary tallied it once, with great difficulty and with errors, and a recount. Cary said no more. See Cary NC tries IRV, then says ‘no more’

For you lawyers and judges running for Wynn's seat, you may wish to brush up on SL 2005-323 The Public Confidence in Elections Act, which requires the use of certified software, post election audits, and standards for voting vendors. Your election probably won't be conducted according to law.

You may also want to read law on using IRV to fill this seat:

In North Carolina Election Laws, around pages 698 and 699 (big pdf file)

§ 163–329. Elections to fill vacancy in office created after
primary filing period opens
(a) General. — If a vacancy is created in the office of justice of
the Supreme Court, judge of the Court of Appeals, or judge of
superior court after the filing period for the primary opens but
more than 60 days before the general election, and under the
Constitution of North Carolina an election is to be held for that
position, such that the office shall be filled in the general election
as provided in G.S. 163–9, the election to fill the office for the
remainder of the term shall be conducted without a primary using
the method provided in subsection (b1) of this section. If a
vacancy is created in the office of justice of the Supreme Court,
judge of the Court of Appeals, or judge of superior court before the
filing period for the primary opens, and under the Constitution of
North Carolina an election is to be held for that position, such that
the office shall be filled in the general election as provided in G.S.
163–9, the election to fill the office for the remainder of the term
shall be conducted in accordance with G.S. 163–322.
(b) Repealed by S.L. 2006–192, § 8(a), eff. Aug. 3, 2006.
(b1) Method for Vacancy Election. — If a vacancy for the office
of justice of the Supreme Court, judge of the Court of Appeals, or
judge of the superior court occurs more than 60 days before the
general election and after the opening of the filing period for the
primary, then the State Board of Elections shall designate a
special filing period of one week for candidates for the office. If
more than two candidates file and qualify for the office in accor


dance with G.S. 163–323, then the Board shall conduct the election
for the office as follows:
(1) When the vacancy described in this section occurs more
than 63 days before the date of the second primary for
members of the General Assembly, a special primary shall
be held on the same day as the second primary. The two
candidates with the most votes in the special primary shall
have their names placed on the ballot for the general
election held on the same day as the general election for
members of the General Assembly.
(2) When the vacancy described in this section occurs less
than 64 days before the date of the second primary, a
general election for all the candidates shall be held on the
same day as the general election for members of the
General Assembly and the ``instant runoff voting'' method
shall be used to determine the winner. Under ``instant
runoff voting,'' voters rank up to three of the candidates by
order of preference, first, second, or third. If the candidate
with the greatest number of first-choice votes receives
more than fifty percent (50%) of the first-choice votes, that
candidate wins. If no candidate receives that minimum
number, the two candidates with the greatest number of
first-choice votes advance to a second round of counting.
In this round, each ballot counts as a vote for whichever of
the two final candidates is ranked highest by the voter.
The candidate with the most votes in the second round
wins the election. If more than one seat is to be filled in
the same race, the voter votes the same way as if one seat
were to be filled. The counting is the same as when one
seat is to be filled, with one or two rounds as needed,
except that counting is done separately for each seat to be
filled. The first count results in the first winner. Then the
second count proceeds without the name of the first winner.
This process results in the second winner. For each
additional seat to be filled, an additional count is done
without the names of the candidates who have already
won. In multi-seat contests, the State Board of Elections
may give the voter more than three choices.
(3) If two or more candidates receiving the highest number of
votes each receive the same number of votes, the board of
elections shall resolve the tie in accordance with G.S.
(c) Applicable Provisions. — Except as provided in this section,
the provisions of this Article apply to elections conducted under
this section.
(d) Rules. — The State Board of Elections shall adopt rules for
the implementation of this section. The rules are not subject to

Article 2A of Chapter 150B of the General Statutes. The rules
shall include the following:
(1) If after the first-choice candidate is eliminated, a ballot
does not indicate one of the uneliminated candidates as an
alternative choice, the ballot is exhausted and shall not be
counted after the initial round.
(2) The fact that the voter does not designate a second or third
choice does not invalidate the voter's higher choice or
(3) The fact that the voter gives more than one ranking to the
same candidate shall not invalidate the vote. The highest
ranking given a particular candidate shall count as long as
the candidate is not eliminated.
(4) In case of a tie between candidates such that two or more
candidates have an equal number of first choices and
more than two candidates qualify for the second round,
instant runoff voting shall be used to determine which two
candidates shall advance to the second round.
Added by Laws 1996 (2nd Ex. Sess.), c. 9, § 7. Amended by S.L.
2001–403, §§ 1, 12.1, eff. Jan. 1, 2002; S.L. 2002–158, § 7, eff. Jan. 1,
2004; S.L. 2006–192, § 8(a), eff. Aug. 3, 2006.

How IRV violated NC Election Law in Cary North Carolina's 2007 IRV Pilot:

1. Counting ballots away from where they were cast. In Cary, NC - the 2nd and 3rd choice votes for the "instant runoff" were not counted on election night. Instead, they were carried away from where they were cast and then counted at a later date.

§ 163-182.2. Initial counting of official ballots . (a) The initial counting of official ballots shall be conducted according to the following principles:(1) Vote counting at the precinct shall occur immediately after the polls close and shall be continuous until completed.

This puts those choices at risk of tampering after being hauled away from the polling places and put into storage.

2. There was no Election night reporting for voters' second and third choices. There are no election night reports/poll tapes for these results because the machines cannot count the 2nd and 3rd choices, and officials did not themselves count the 2nd and 3rd choices on election night. North Carolina's voting machines are incapable of doing such reporting, The only way to account for the voters choices and secure them against fraud would be to count all second and third choices on election night at the polling places and create a manual report of that data.

3. Incomplete vote data. Only partial data was reported for the District B contest where voters second and third choices were utlimately counted. No raw vote data was reported for the other IRV contests that had a winner in the first round. Without all raw vote data, i.e the tallies for all choices, whether they were needed to ascertain a winner - we cannot ascertain if this election was "non monotonic",i.e voters hurt their first choice by voting for them. Campaigns cannot see where their efforts succeeded or failed in campaigning and even cross endorsing as IRV advocates promote.

4. Provisional ballots were not counted until after the 2nd and 3rd choices were counted, and supposedly "added" back in. Since IRV is not "additive", it is not clear how these votes could possibly be added back in without doing a complete recount.

5. Absentee ballots. It is not clear when the absentee ballots were counted, so the question is - were they counted with the first, second and third rounds?

6. Audits and recounts must be publicly announced and observed, and notice must be given in time for the public to attend. Wake County miscounted just 3,000 ballots in the Cary IRV experiment, (Oct 30, 2007Critics Take Runoff Concerns To Elections Board NBC 17) and ended up doing an audit without citizens having an opportunity to observe.

7. Canvassing was done after counting the 2nd and 3rd rounds of ballots for District B. Provisional ballots weren't included in the count of the 2nd and 3rd rounds of voting. Officials say they "added" these votes in later. All votes should be counted in the 2nd and 3rd round, provisional votes and absentee votes included.

8. Uncertified software to count the votes on touchscreen machines. There is no federally approved software to count instant runoff voting so the NC State BoE set up an uncertified "workaround" to help out Henderson County, NC, a touchscreen jurisdiction. Luckily there was no "runoff" so the work around was not used. This work around violates North Carolina election law that requires all vote counting systems and software to be federally certified.

This work around violates at least 2 sections of NC Election Law

§ 163-165.7. Voting systems: powers and duties of State Board of Elections. (a) Only voting systems that have been certified by the State Board of Elections in accordance with the procedures and subject to the standards set forth in this section and that have not been subsequently decertified shall be permitted for use in elections in this State.

...The State Board may certify additional voting systems only if they meet the requirements of the request for proposal process set forth in this section...

(1) That the vendor post a bond or letter of credit to cover damages resulting from defects in the voting system. Damages shall include, among other items, any costs of conducting a new election attributable to those defects.

(2) That the voting system comply with all federal requirements for voting systems. (There is no federally certified IRV tabulating software).

§ 163-165.9A. Voting systems: requirements for voting systems vendors; penalties.

This touch screen work around removes vote data from the ES&S Unity system to a system not tested with it - exporting data first to notepad/wordpad and then excell to tabulate the votes.

a. neither word pad, note pad or excell have been tested for their vote tabulation ability.
b. this process erases audit data as it progresses, excell doesn't have an audit trail, and some versions of excell have bugs.
c. it is not known what happens to the data as it is moved from the ES&S vote tabulation system to a non ES&S vote tabulation system.

All parts of the vote tabulation system must be federally tested together, to ensure they work together.

There are over 100 steps in the process, with instructions like "click on the red tab, or click on the blue tab", and one single keystroke error would change the outcome of the election, and there is no audit trail for this process. Audit data is deleted as steps are performed.

More on vote counting:

§ 163-182.2. Initial counting of official ballots. (a)...

(2) Vote counting at the precinct shall be conducted with the participation of precinct officials of all political parties then present. Vote counting at the county board of elections shall be conducted in the presence or under the supervision of board members of all political parties then present.

(3) Any member of the public wishing to witness the vote count at any level shall be allowed to do so. No witness shall interfere with the orderly counting of the official ballots. Witnesses shall not participate in the official counting of official ballots.

(4) Provisional official ballots shall be counted by the county board of elections before the canvass. If the county board finds that an individual voting a provisional official ballot is not eligible to vote in one or more ballot items on the official ballot, the board shall not count the official ballot in those ballot items, but shall count the official ballot in any ballot items for which the individual is eligible to vote. Eligibility shall be determined by whether the voter is registered in the county as provided in G.S. 163-82.1 and whether the voter is qualified by residency to vote in the election district as provided in G.S. 163-55 and G.S. 163-57. If a voter was properly registered to vote in the election by the county board,no mistake of an election official in giving the voter a ballot or in failing to comply with G.S. 163-82.15 or G.S. 163-166.11 shall serve to prevent the counting of the vote on any ballot item the voter was eligible by registration and qualified by residency to vote.

(5) Precinct officials shall provide a preliminary report of the vote counting to the county board of elections as quickly as possible. The preliminary report shall be unofficial and has no binding effect upon the official county canvass to follow.

(6) In counties that use any certified mechanical or electronic voting system, subject to the sample counts under G.S. 163-182.1 and subdivision (1a) of subsection (b) of this section, and of a hand-to-eye recount under G.S. 163-182.7 and G.S. 163-182.7A, a board of elections shall rely in its canvass on the mechanical or electronic count of the vote rather than the full hand-to-eye count of the paper ballots or records. In the event of a material discrepancy between the electronic or mechanical count and a hand-to-eye count or recount, the hand-to-eye count or recount shall control, except where paper ballots or records have been lost or destroyed or where there is another reasonable basis to conclude that the hand-to-eye count is not the true count.

(From page 180 & 181 from NC Election Law posted online)

The whole reason for 161-182.2 (a)(1) is for transparency and fraud prevention

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Wednesday, August 11, 2010

Instant Runoff Voting, NC Court of Appeals, the Bad News and the Good News

The bad news is that it looks like IRV will be used for a statewide contest combined with regular voting. IRV can't be tallied at polling places and machines can't count it so I have no idea how it will/can be counted. The good news is that the would be victims of this potential fiasco are attorneys/jurists and we may see some lively court action if things go wrong.

Editorial: One in, two still to go
TUESDAY, AUGUST 10, 2010 Greensboro News-Record
James Wynn is in; Albert Diaz and Catherine Eagles may as well go to thebeach. They have to wait for the Senate to return from its long summervacation for their judicial confirmations.

Wynn, a judge on the N.C. Court of Appeals, was one of a handful of nominees for the federal bench approved by unanimous consent in the last hours of Senate activity before it adjourned last week. The Senate won't resume work until Sept. 13.

The rest of the story is that Wynn's promotion will create a vacancy on the N.C. Court of Appeals in time for the state to hold a special election to determine his successor. It will occur at the same time as the general election in November, but under new rules.

For elections to fill a judicial vacancy when there's no time to hold a primary, a 2006 state law creates "instant runoff voting" in case there are more than two candidates and none receives a majority of the vote. Under this scheme, voters are asked to rank their top three choices in order of preference, and a second round of counting determines the winner.

This will prove to be impossibly confusing to voters, many of whom have trouble deciding even one candidate they think is most qualified. Ranking three is likely to require guesswork. It would be better if the law allowed the governor to appoint a replacement to serve until the next election, when candidates then could run on a normal schedule. That's what would happen if this vacancy occurred after Sept. 3.

Popular election is not the best way of selecting judges anyway, and instant runoff voting won't make an improvement. But the federal system has its flaws as well — especially when partisan politics subjects qualified nominees to long delays.