North Carolina statewide Instant Runoff election and legal challenges

Updated Sept 20, 2010. 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
~ Keith Long , Voting System Project Manager for the North
Carolina State Board of Elections Jan 7, 2008

“IRV is not an approved function at the federal or state level of current ES&S software, firmware or hardware. Subsequently, we will work at the direction of the SBE and counties to assist but cannot be held responsible for issues as a result of IRV…

….IRV Tabulation*Printelect and ES&S will only take responsibility for and support tabulating the IRV contests individually.Methods for deciding a runoff winner by others will not be supported by Printelect or ES&S. This risk will be the sole responsibility of NCSBOE and the counties.

*IRV voting tabulation methods are not an EAC or state certified portion of our voting system and have not undergone the testing that would normally be required to receive these certifications. ~ Letter From voting vendor PrintElect to the North Carolina State Board of Elections, dated August 31, 2010

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.”

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.

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 The voting vendor warns that IRV is not an approved function of our voting systems and has not been federally tested or certified as required by state law.

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. 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. 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.”

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:

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.


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


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.

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

Editorial: On the wrong track
September 3, 2010. Greensboro News-Record

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.

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…

Lucky 13
August 31, 2010. Greensboro News and Record. Doug Clark, Editor

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