On November 29th, Common Cause/NY, The Black Institute and 5 individuals filed a lawsuit against the New York State Board of Elections (NYSBOE) claiming that ExpressVote XL – a touch screen voting machine that allows voters to mark their ballot electronically instead of on traditional paper ballots – that the lawsuit contends does not let voters verify their ballots independently and privately, as required by New York election law. If the Albany County Supreme Court sides with these groups, local Boards of Elections will no longer be able to purchase the ExpressVote XL.

This lawsuit comes on the heels of another election cycle where the ExpressVote XL malfunctioned. In November’s election, voters again used these machines in Northampton County, Pennsylvania, four years after an earlier problem with the machines not recording votes. The machines produced ballot summary cards with selections for judicial candidates that were inconsistent with voters’ selections causing confusion as to whether voters were accurately recorded.

READ the petition here.

“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. Paper ballots marked by the voter — which New York currently uses — are the preferred election security standard. The court must overturn the Board of Elections’ wrong decision to certify the machine before the 2024 election,” said Susan Lerner, Executive Director of Common Cause/NY.

“The Black Institute has encouraged voter participation, defended voting rights, and fought for a fair redistricting process for over a decade. Today, we stand in solidarity with the Common Cause/NY petition against using the ExpressVote XL voting machine. 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. Introducing a voting system that lacks transparency and fails to meet legal standards only exacerbates this distrust. We urge the NYSBOE to adhere to their statutory duties. This is not just about compliance with the law; it’s about preserving the integrity of our democracy and ensuring every vote is counted accurately and fairly,” said Bertha Lewis, founder and President of The Black Institute.

Phillips Nizer LLP is representing the plaintiffs pro-bono. Marc A. Landis, managing partner of Phillips Nizer, said, “We are proud to continue our voting rights work by representing Common Cause/NY and The Black Institute in this effort. Protecting the integrity of the voting process for every single voter is of paramount importance.”

Under New York State Election Law §7-202(1)(e), all voting machines must provide voters with “an opportunity to privately and independently verify votes selected and the ability to privately and independently change such votes or correct any error before the ballot is cast and counted.” The ExpressVote XL, however, utilizes a ballot summary card that relies on a barcode to count votes making it impossible for voters to verify or correct before the votes are cast and counted.

In August, over the objections of numerous groups and voters, the NYSBOE voted to certify the ExpressVote XL for use in New York State. Boards of Election Commissioners in New York City, Ulster, Onondaga and Chautauqua counties have previously said they have no immediate plans to buy the machines, citing previous issues with them.

BACKGROUND:

In September, New York City Public Advocate Jumaane Williams introduced Resolution No. 774 to the New York City Council, which calls on New York City’s Board of Elections to refrain from purchasing any voting machines that do not allow for paper ballot verification. The resolution was further affirmed by New York City Comptroller Brad Lander, who expressed support for the resolution in a letter sent to Council Speaker Adrienne Adams earlier this month.

Other organizations, including the Let NY Vote coalition, have sent letters to the NYSBOE demanding they reject the certification of the ExpressVote XL machine. Read the letters here. The Daily News, Buffalo News and the Albany Times Union have also editorialized against certification of the machine.

Earlier this year, Assembly Member Brian Cunningham and Senator Cordell Cleare introduced the Voting Integrity and Voter Verification Act (VIVA), legislation that would guarantee the use of paper ballots in elections. VIVA passed in the New York State Senate in June with bipartisan support, but did not reach a vote in the Assembly last term. In October, New York City Council Member Gale A. Brewer introduced Resolution No. 809 in Council, which calls on the New York State Legislature to pass – and for the Governor to sign – VIVA. The resolution highlighted concerns from security experts about the possibility of Election Day issues caused by the machines.

Common Cause/NY released an updated report on the ExpressVote XL called “The ExpressVote XL: Still Bad for New York’s Elections” that detailed several instances in which the machine incorrectly recorded votes and made verification difficult. Common Cause/NY’s updated report on the ExpressVote XL identified the following major issues:

• Vulnerable to software and hardware malfunctions and programming errors.
  • Since 2018, municipalities that used the ExpressVote XL have seen long lines, glitchy touchscreens and ballot jams. In Pennsylvania, roughly 30% of the machines allowed voters to select only some candidates’ names, and not others.
  • Touchscreens malfunction can cause long lines for voters. A Pennsylvania Department of State analysis concluded that the XL accommodated significantly fewer voters per hour than sites in New York where paper-marked ballots were available.
• Prone to undercounting votes
  • In a race in Pennsylvania, a candidate was recorded as having 164 votes on election night, but after a manual recount the same candidate had over 26,000 votes, winning the race. County election officials later issued a bipartisan rebuke of the voting machine.
• Difficult to verify:
  • The ExpressVote XL utilizes a ballot summary card in barcode format that is difficult for voters to verify and undermines trust. In 2019, Colorado banned barcodes for ballot counting, citing security concerns.
• Expensive
  • The ExpressVote XL will cost either $11,491 or $12,207 per unit depending on quantity. This is far more expensive than other voting machines. Additionally, it will cost more money to store and transport the machines, as well as backups should any fail.