NC Court of Appeals, Instant Runoff Voting and Legal Challenges

Thanks to instant runoff voting, the November 2010 election for North Carolina Appeals has all the potential for a Florida style meltdown. See 13 candidates file for open NC appeals court job AP News August 31, 2010. Instant runoff voting, aka IRV will be used statewide to fill NC Appeals Judge Wynn's seat and our voting machines can't tally it. Other contests will use regular election methods. That makes it extra confusing. The possible confusion may impact other contests as voters and poll workers deal with a mixture of voting methods all in one election.

North Carolina will be the beta test for this first statewide instant runoff voting election conducted in the United States. “Instant runoff” elections represent a dramatically different system of how votes are cast, counted and valued. To avoid legal challenges and protect the confidence in elections, the election process must be as transparent as possible. The good news is that the candidates will be lawyers and judges. Wouldn't it be ironic if this election was tallied by a jury-rigged system? No matter how you cut it, a statewide IRV election will clash with many existing election laws.

Instant runoff voting will be used statewide to fill the NC Court of Appeals seat vacated after Judge Wynn retired. Additionally, North Carolina voters in at least three counties (Buncombe, Cumberland and Rowan) also will use Instant Runoff Voting to decide the winners in three Superior Court races this fall. Under state law (NCGS 163-329), vacancies on the Superior Court, Court of Appeals and Supreme Court which occur after the primary but more than 60 days before Election Day are filled through an election that allows voters to rank their choices. Here's the legal code.

The SBoE has a difficult task. It must conduct instant runoff elections for the statewide contest for NC Court of Appeals without compatible voting machines, without a thorough fiscal analysis, and without state funding for implementation and voter education. Voter education is essential, since with 13 candidates, voters 2nd or 3rd choices probably will decide the outcome of the election. Unfortunately, many voters will be unprepared to rank choices, as the state will be spending a paltry $500,000 on voter education for 6.1 million voters. Lack of tallying software means counting could take days or weeks. IRV is not additive so votes can not be tallied at the polling places on election night.

"There are no provisions on ES&S equipment to tabulate IRV." ~ Keith Long , Voting System Project Manager for the NorthCarolina State Board of Elections Jan 7, 2008
http://www.ncvoter.net/downloads/Keith_Long_Machines_Not_IRV_Compatible.pdf

Statewide IRV is dangerous. North Carolina’s only experience in counting IRV votes is in Cary, NC in the October 2007 pilot, and officials were unable to tally just 3,000 IRV votes correctly. Cary has since rejected IRV. Hendersonville has "piloted" IRV in 2007 and 2009, but never has tallied the IRV votes. The NC SBoE admitted that IRV is too risky when mixed with statewide elections:

"Current state law says we must comply with federal regulations…

We can use November 2007 as a pilot and not use IRV in May 2008 because it poses too much of a risk.”
http://www.ncvoter.net/downloads/NCSBOE_3_6_07_IRV_Limitations_No_2008.doc

Violating existing election law and standards for voting systems to try to “automate” instant runoff voting with un-certified work-arounds will result in headlines such as we saw in 2004:

"A Florida-style nightmare has unfolded in North Carolina in the days since Election Day, with thousands of votes missing and the outcome of two statewide races still up in the air."

Legal challenges: No matter how this election is administered, election laws will be broken. It is unavoidable, because IRV clashes with many election laws and standards.
http://www.ncvoter.net/downloads/NC_Comments_on_IRV_and_2010_Judicial_Elections.pdf

NC Verified's full comments to the North Carolina State Board of Elections on procedures and risks for upcoming instant runoff voting elections

Outline of comments:

1. There is no software to tabulate IRV that meets the standards of our state law. In guidelines for IRV pilots set by the State Board of Elections in January 15, 2009, the State Board of Elections proposed to use an uncertified method of vote tabulation with DRE machines that allows for an “electronic sort” using uncertified software that requires five pages of over 100 single spaced instructions. Experts warn that this spreadsheet tallying method is error prone, lacks an audit trail, and is not good enough for elections. See Standards for IRV Pilots -Approved by the North Carolina State Board of Elections on January 15, 2009
http://www.ncvoter.net/downloads/NCSBoE_IRV_Approved_1-15-2009

To comply with existing state law, IRV must be counted manually until IRV software and its accompanying algorithm is federally approved. This is workable with optical scan ballots, but in order to count the touch-screen paper trails, the vendor should be made to modify the software to print a ballot summary. Touch-screens currently print all selections made by voters, but not a final summary. While a simple contest can be recounted on the touch-screen paper trail, an IRV contest would be more laborious. For a simpler process, touch-screen counties could borrow or purchase optical scan machines for IRV elections.

2. IRV ballots cast on election day must be counted where they are cast just as “regular” ballots are counted as per § 163-182.2. Initial counting of official ballots. In Cary, NC - the 2nd and 3rd choice votes cast 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. This differs from the treatment of absentee ballots and early voted ballots might be tabulated at the central office, these are “retrievable ballots”, not cast on election day. All votes cast at the polls on election day, including IRV ballots, are to be counted at the polls on election night once the polls close. The solution is to count all votes, 1st, 2nd and 3rd on site using the “Australian” method.

3. State law requires election night reporting for voters' second and third choices. See Law requires reporting of votes on election night. IRV ballots are not retrievable and cannot be reported at another date.

4. All votes must be counted. In free, fair and open elections, all votes are recorded and counted. This means counting all votes, whether 1st, 2nd or 3rd choices. To do otherwise violates a core principle of democracy and tells voters that their choices and votes do not matter. Candidates, voters and officials want to know the breakdown of the votes. Votes must be counted for transparency sake. In the 2007 Pilot program, only partial data was reported for the District B contest where voters’ second and third choices were ultimately counted. In Cary’s other IRV contests for City Council, only some, not all of 2nd or 3rd place data was recorded or reported. In Hendersonville, the IRV votes were never counted or reported.

5. Provisional ballots must be counted before advancing to the 2nd round. In the 2007 IRV pilot, 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.

6. Absentee ballots must be counted before advancing to the 2nd or 3rd round. In Cary, NC in 2007, it is not clear when the absentee ballots were counted, so the question is - were they counted with the first, second and third rounds? They must be counted with the first round of voting before going to the next.

7. Canvassing of all first round votes, absentee and provisional ballots must be done before counting a second round of ballots. This has to be done to get an accurate vote count.

8. Audit protocols will have to be developed in coordination with the state appointed statistician and according to current state laws. Each round of voting must be proven correct if the subsequent round is to trusted. Audits and recounts must be publicly announced and observed, and notice must be given in time for the public to attend.

9. Voter education is expensive, must be repeated, and is not necessarily effective. The results of Cary NC’s 2008 bi-annual citizen survey indicate that 22.0% did not understand IRV at all.

10. Overvote protection lacking. North Carolina state law and the Federal Law, Help America Vote Act requires that voters be notified of over votes. NC’s voting machines are unable to notify the voters if they have “overvoted” in the IRV contests - if voters rank the same candidate more than once. The Help America Vote act defines overvotes: “In every election, some voters make more choices than are permitted in a contest, which creates what are called overvotes.”
http://www.eac.gov/program-areas/research-resources-and-reports/copy_of_docs/eds-2006/overvotes-and-undervotes.pdf/attachment_download/file

With IRV, voters are not permitted to vote for the same candidate more than once in a given contest. To do so, renders their 2nd and 3rd choices invalid.

11 “Instant runoff voting” should be renamed “Ranked Choice Voting”. Instant runoff incorrectly infers that the method provides the same results as a runoff election and does so instantly. It can take days or weeks to get the results of an IRV election.

12. IRV does not guarantee a majority winner. The “instant runoff” contest in Cary, District B City Council in October 2007 was decided with less than a majority of votes.

13. IRV is a difficult way to provide the same results as plurality elections. The fact is that most often, “Instant runoff voting” historically provides the same result as a plurality election, only with more effort.

14. Instant runoff voting is non-monotonic. In other words, you can hurt your preferred candidate by voting for him or her.

15. Exit polls, should be conducted by election officials or impartial groups -not advocates, in order to preserve the appearance of objectivity in the results. Exit polls should be carefully crafted to avoid being push polls. Pierce Co Washington mailed surveys to 91,000 voters, to be completed in the privacy of their homes.
This letter, along with my comments and recommendations set forth in the documents referenced above, and expanded upon in following pages, is my testimony.

The full report at this link:
http://www.ncvoter.net/downloads/NC_Comments_on_IRV_and_2010_Judicial_Elections.pdf

IRV is not as "easy as 1-2-3" as other jurisdictions have learned.

Forget majority outcomes: if a candidate does not win a majority in the first round, with IRV it is a near impossibility that a candidate can obtain a majority with 2nd and 3rd round votes. This happened in Burlington Vermont in their 2009 mayoral contest. With chance to rank only 3, and since ranking isn't mandatory, and since there are 13 candidates, the math is against getting a majority win.


Regards;

Joyce McCloy, Director
NC Coalition for Verified Voting
212 Evergreen Drive, Winston Salem, NC 27106

About us: The North Carolina Coalition for Verified Voting is a grassroots non-partisan organization fighting for clean and verified elections. We study and research the issue of voting to ensure the dignity and integrity of the intention of each voting citizen. The NC Voter Verified Coalition has consistently fought for increasing access, participation and ensuring the voter franchise. Contact Joyce McCloy, Director, N.C. Coalition for Verifiable Voting - phone 336-794-1240 website www.ncvoter.net

Related:

Potential mess looms in judicial election

September 9, 2010 ...And state legislators should consider whether this form of voting solves the problem it was meant to fix.

http://www.charlotteobserver.com/2010/09/09/1679301/potential-mess-looms-in-judicial.html

Order in the court election!
September 5, 2010. BY ROBERT ORR. Raleigh News & Observer
RALEIGH -- Thirteen is associated with bad luck, and for North Carolina voters, 13 candidates' filing for the state Court of Appeals vacancy recently created by Judge Jim Wynn's move to the U.S. Fourth Circuit Court of Appeals is not merely bad luck - it's downright ridiculous.
http://www.newsobserver.com/2010/09/05/662859/order-in-the-court-election.html

Editorial: Judicial election will allow state to test instant runoff
September 4, 2010. Star News Online

...One election, instant results.
www.starnewsonline.com/article/20100904/ARTICLES/100909801

Editorial: On the wrong track
September 3, 2010. Greensboro News-Record
http://www.news-record.com/content/2010/09/03/article/editorial_on_the_wrong_track

Test vote
September 3, 2010. Raleigh News & Observer
Democracy, said the ever-quotable, often-cynical H.L. Mencken, "is the theory that the common people know what they want, and deserve to get it good and hard." North Carolina voters are about to embark on a journey to democracy's farther reaches. Here's hoping the excursion - the first use of statewide instant runoff voting - turns out well.
http://www.newsobserver.com/2010/09/03/661319/test-vote.html

13 Candidates for Wynn Seat

September 1, 2010. North Carolina Appellate Blog. Bob Numbers.

...If no candidate receives the necessary number of first place votes, the two candidates with the greatest number of first place votes advance to the "instant runoff." In the instant runoff 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...
http://womblencappellate.blogspot.com/2010/09/13-candidates-for-wynn-seat.html

Lucky 13
August 31, 2010. Greensboro News and Record. Doug Clark, Editor
http://www.news-record.com/blog/54431/entry/97944

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Lucky 13, NC Court of Appeals and instant runoff voting

Triskaidekaphobia, North Carolina and a statewide instant runoff voting election. Funny how things work out when a few special interests get their way. Come November we'll all be acutely aware that elections have consequences and so does using IRV..

Greensboro News and Record Editor Doug Clark writes about the impact of instant runoff voting on contest for Court of Appeals and the consequences. Emphasis in bold is mine:

Lucky 13
That's the number of candidates in the running for the N.C. Court of Appeals seatthat will be filled in a special election in November.

Only one will turn out to be the lucky winner.

And most likely it will come down to a matter of luck. Voters won't be able to chooseintelligently among so many candidates, especially when this race will be overshadowed by political contests.

Even more so because the state will employ a goofy instant runoff system for this one election. I'll be writing more about that. Just believe it's going to be convoluted and confusing.

I think it's fair to say there's a wide variance in experience and qualifications among these candidates. Will most voters see that? I hope so, but I'm not optimistic.

It's interesting to note that far fewer candidates chose to run in the regular elections for appellate court seats. In fact, one sitting judge is unopposed.

Why so many in this one? Because getting elected will be like rolling a winning number in a dice game. You don't have to be good, only lucky, to land an eight-year term in a big job.

Here's the field:


BLOSS, JOHN F, GREENSBORO

CASTEEN, JOHN WESLEY JR, WILMINGTON

DILLON, ROBERT CHRISTOPHER, RALEIGH

FARLOW, JEWEL ANN, GREENSBORO

GARNER, DANIEL E., WAKE FOREST

HAMMER, STANLEY F., GREENSBORO

KLASS, MARK E., LEXINGTON

MCCULLOUGH, JOHN DOUGLAS, ATLANTIC BEACH

MIDDLETON, ANNE, RALEIGH

PAYNE, HARRY E JR., RALEIGH

SULLIVAN, JOHN C., RALEIGH

THIGPEN, CRESSIE, RALEIGH

VESPER, PAMELA M., RALEIGH

http://www.news-record.com/blog/54431/entry/97944

IRV Mechanics v law update: So far, we hear that the NC State Board of Elections will NOT allow the use of the infamous "excel spreadsheet workaround'. It is now deemed an illegal work around, so maybe we can get Hendersonville to stop using it. Also it appears SBOE will follow our recommendations to canvas all votes before tallying second round. There are still laws that will be broken, esp about what a paper ballot is for DRE counties, but even if this goes to court, I believe everyone will throw up their hands and say "there's no way to do this that doesn't conflict somehow....". At least the worst, the "workaround" is off the table.

About us: The North Carolina Coalition for Verified Voting is a grassroots non-partisan organization fighting for clean and verified elections. We study and research the issue of voting to ensure the dignity and integrity of the intention of each voting citizen. The NC Voter Verified Coalition has consistently fought for increasing access, participation and ensuring the voter franchise. Contact Joyce McCloy, Director, N.C. Coalition for Verifiable Voting - phone 336-794-1240 website www.ncvoter.net


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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."

http://www.wral.com/news/state/story/8128299/

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

698

§ 163–329 ELECTIONS & ELECTION LAWS
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.
163–182.8.
(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

ELECTION OF JUDGES § 163–329
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
choices.
(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.


http://www.sboe.state.nc.us/GetDocument.aspx?id=2136

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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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.
....
http://www.news-record.com/content/2010/08/09/article/editorial_one_in_two_still_to_go

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North Carolina runoff elections? Instant Runoff Voting no answer, here's why

North Carolina has a statewide runoff election on June 22, 2010. Some groups are suggesting that North Carolina should resort to "instant runoffs" in order to avoid costly low turnout runoff elections. Don't be fooled, implementing IRV in North Carolina is not feasible and would have unintended consequences. IRV has never been used for a statewide election. North Carolina should not be the guinea pig for such a drastic experiment. IRV is as well intentioned but flawed election method. Either keep runoff elections, set threshold rules, or stop having runoff elections. 42 states do not hold statewide runoff elections. [ Journal Record, The (Oklahoma City Aug 8, 2006]

Instant runoff voting is no solution: IRV is not not instant, is not fair to voters, does not provide the same results as a one to one runoff election, often fails to provide a majority win, is complex to count, costly to administer and can create chaos.

Instant runoff voting is not feasible for statewide elections. Cary North Carolina had trouble just counting 3,000 IRV votes correctly in 2007. Keith Long, Voting Systems Project Manager for the NC State Board of Elections said that implementing IRV was "like trying to put a square tire on a car."

IRV is difficult and complex to count and North Carolina voting machines cannot tally IRV:
"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

IRV increases reliance on more complex technology, making audits and recounts more prohibitive, further eroding election transparency. Because IRV is not additive, no matter what voting system is used, the ballots, (electronic or optical scan) have to be hauled away from where they are cast to a central location to be counted. This increases the chance of fraud or lost votes. IRV tallying software utilizes a complex algorithm that makes the process even more opaque. http://tinyurl.com/tally-irv

IRV was too dangerous to use in local jurisdictions in 2008:

"We can use November 2007 as a pilot and not use IRV in May 2008 because it poses too much of a risk. May request change in legislation for retesting IRV with certified upgrades in 2009." ~ NC State Board of Elections March 6, 2007(There were no certified upgrades).

If you thought the Minnesota US Senate recount was lengthy, laborious and contentious, how much more so would an IRV recount be? Why endanger public confidence in elections? Once you obligate to IRV, your backs will be against the wall - ready or not, IRV will take priority over reliability, accuracy, affordability, and transparency.

The realities of counting IRV: Cary & Hendersonville are the only cities in the entire state of North Carolina to participate in instant runoff voting pilots. The IRV votes came into play in Cary District B in 2007- the winner had less than 40 percent of the first-choice votes cast, and less than 50 percent of the votes of people who showed up on Election Day. The election officials couldn't even count just 3000 IRV votes correctly.

Instant runoff voting - counting by hand a nightmare? tallying IRV in Cary NC in 2007. (Optical Scan Ballots)

It was difficult to count just 3,000 ballots correctly. Officials had to manually tally the IRV results for the Cary, NC “instant runoff”. There was confusion during the counting and ballots were miscounted and not properly allocated to the candidates. Friday, the day after the "runoff" or count of the 2nd round, the election director performed an audit, according to the media. Errors were discovered and the audit extended into a full blown recount...

....According to Chris Telesca who observed the IRV counting in Wake County, NC, to hand-process a little over 3000 paper ballots (after the first choice votes were counted on the op-scan machines) when there were only 3 candidates plus a few write-ins for the Cary district B, single member town council seat, and the counting went only two rounds

it took 6 sorting stacks for each of 12 ballot groupings or precincts (8 precincts plus absentee by mail in Cary, board of elections one-stop site, the Cary one-stop site, provisional ballots- Cary, and possibly some transfer votes from another county which were eligible to vote in the Cary IRV contest) or 12 times 6 stacks = 72 stacks.

Wake County officials decided to put each stack in a separate plastic bag to keep track. This would not be possible if there were more than one IRV contest because each contest requires independent sorting and stacking to count.

The procedure was very complicated, but it was there in print. Even so, the Wake Board of Elections (BOE) didn’t follow it. There was no overhead projector so that observers could follow the process. Non Board members were sorting the ballots into stacks which was hard to follow. Nonetheless, observers and the Board came up with different totals at the end of the day. The next day, the different totals were determined to be caused by a calculator error that was discovered in an “audit” – that also discovered a few missing votes...Just 3,000 ballots!

Hendersonville used IRV in 2007 & 2009 & never counted or reported any of the IRV votes. There is no federally approved software to count instant runoff voting so the NC State BoE set up a complex "workaround" to help out Henderson County, NC, a touchscreen jurisdiction. See Instant Runoff - If I Were Crazy, I'd Count Votes THIS Way ...There are over 100 steps in the process. Luckily there was no "runoff" in either election so the work around was not used.

IRV suffers from majority failure: In North Carolina's IRV pilot, the IRV votes came into play in Cary District B in 2007- the winner had less than 40 percent of the first-choice votes cast, and less than 50 percent of the votes of people who showed up on Election Day. IRV has produced a plurality result in 2 out of 3 contests in Pierce Co WA. In other words, winners achieved victory with less than 50% of the votes. In San Francisco, CA., out of 20 RCV elections that have been held since the referendum establishing it passed, when IRV was used, it elected a plurality winner.http://tinyurl.com/IRVmajorityfail

Do voters understand Instant Runoff Voting? IRV leaves some voters behind:

Cary, North Carolina tried Instant Runoff Voting in 2007 and said No More. The results of Cary NC’s 2008 bi-annual citizen survey indicate that a significant percent of voters do not understand IRV. The mean was 5.83 with 58.6% on the “understand” side (above 5) of the scale and 30.6% on the “not understand” side (Figure 19). This includes 22.0% who indicated they do not understand at all. Overall this indicates a degree of misunderstanding among the respondents. Keep in mind that Cary is the city with the most Ph.D.s per capita in the U.S. for towns larger than 75,000 people

Hendersonville NC voters poll: 19.4% of Hendersonville NC voters polled came to the polls in 2009 unprepared to rank their choices according to asurvey by Professor Michael Cobb. of NCSU .

Cary Town Council member Don Frantz, who was elected by IRV said

"When our town agreed to IRV in 2007, it was kind of rush job..There was a lot of pushback, the public wasn’t involved … I do not like instant runoff voting and have given my reasons as to why many times. I'll take in elections over funny math and 30% voter confusion any day."

Chuck Herrin, a certified white hat hacker and IT certification specialist advised North Carolina lawmakers that:

"IRV introduces a more confusing system in terms of audit ability and security, since the ballots are more complex and normal indicators such as exit polls will not be able to easily reflect IRV results. Tracing back the will of the voter in the event of problems or fraud would be more difficult with IRV until a reliable procedure and design is in place, and any abuses are much less likely to be detected since the whole point of the IRV system is avoiding recounts."

Does IRV save money? We can't measure if IRV has truly saved money in North Carolina because pro IRV groups donated much of the voter education and exit polling labor.
Jurisdictions that have professional fiscal analysis or actual cost information have shown that IRV increases costs. See reports from Maine, Maryland, Minneapolis MN, Pierce County Washington, Vermont and San Francisco here . Minneapolis, Minnesota learned that IRV increases costs of elections, the hard way last month:

Monday, May 24, 2010 The continuing cost of Instant Runoff Voting in Minneapolis $244,000 Minneapolis Council Members are dismayed that Instant Runoff Voting did not work as touted. So far, instead of saving money and increasing turnout - IRV has added an additional $244,000 in costs each year, and in the city's first IRV election, turnout was the lowest in over 100 year

The latest claim about instant runoff voting is that it magically "empowers communities of color" . The truth is that Instant Runoff Voting does not empower communities of color and may harm them::

If instant runoff voting "empowers communities of color" then WHY does Takoma Park Maryland continue to elect an all white city council?

IRV is bad for voters. A 2008 Civil Grand Jury advised San Francisco that voters and poll workers did not understand IRV. Grand Jury Report

IRV eliminates opportunity. In a radio interview, former San Francisco Mayor Willie Brown said that IRV is really, really bad, "it eliminates opportunity". Listen here via youtube

North Carolina NAACP leader on IRV: "I am absolutely to the core opposed to instant runoff voting. And I believe that the issue of Instant runoff voting has clouded the discussions. And I want to make it very clear that that will cost the city money, not save the city money. Because I promise you that I will be protecting my right to vote, with legal action should you choose to do that. . Stella Adams - Vice Chair of NC Democratic Party and Housing Chair and Economic Empowerment Coordinator at NC NAACP speaking at Durham North Carolina City Council meeting April 7, 2009

Durham Committee on the Affairs of Black People: This whole idea is that voting is a landmark of the people… even if its expensive. We spend a whole a lot of money on…..Just vote it down (non partisan plurality elections).I’m not going to be for instant runoff voting either....." Dr. Lavonia Allison - President of the Durham Committee on the Affairs of Black People at Durham City Council meeting April 7, 2009 .

7 Ways Instant Runoff Voting Undermines North Carolina Verified Voting law

Instant runoff voting undermines key principles of North Carolina's nationally respected verified voting law, known as The Public Confidence in Election Act. This law was passed in August 2005 after hard work by activists and citizens from around the state. This law has done much to restore the integrity in our elections caused by faulty paperless voting machines and lack of standards for voting systems and vendors. IRV threatens key tenets of that law....

There is no certified software to tally IRV with, so uncertified "work-arounds" have been instituted. In touchscreen counties the NC SBoE says for purposes of IRV, the manual hand to eye count of the voter verified paper trail no longer rules, instead officials will substitute a single spreadsheet in for "manual counting". Because IRV is not additive, votes have to be centrally tallied, i.e hauled away from where cast to be counted at another location. IRV votes are not counted or reported on election night either. Worse, some IRV votes are never counted or reported.

Several jurisdictions have tried IRV and abandoned it. There's a reason why. SeeInstant Runoff Voting rejected by Sunnyvale, Burlington, Pierce Co, Cary. Aspen in Nov? and also Aspen Instant Runoff Voting--Up for Repeal in November 2010 .

There can be unintended consequences of IRV such as increased cost, labor, changes in procedures and policies, and in some cases a decreased confidence in the outcome of election results.

Learn more, watch these videos

Is Instant Runoff Voting Democratic? A analysis of the Burlington, VT election.
http://www.youtube.com/watch?v=img9y2AYTQA

Fact Checking Instant Runoff Voting talking points - proof that IRV harms vulnerable voters

http://www.youtube.com/watch?v=W26x3JG0sMs

Best regards, Joyce McCloy

NC Coalition for Verified Voting and Instant Runoff Voting Facts V Fiction"

We study the impact of instant runoff voting on voters rights, election administration and election outcome. Our goal is to ensure the dignity and integrity of the intention of each voting citizen. We welcome inquiries from the media, public officials, voter advocacy groups and concerned citizens." See www.instantrunoffvoting.us, our bloghttp://instantrunoff.blogspot.com/ and www.ncvoter.net Contact Joyce McCloy by email: info (at) instantrunoffvoting.us or by phone at (336) 794-1240