Judge Denies North Carolina's Challenge Of Election Software

With only hours to go before Tuesday's municipal elections, a trial judge turned away North Carolina's effort to avoid using the polling-place software of a company targeted by Russian hackers last year.

Lawyers for the state elections board said the Election Day poll book software that VR Systems provides to nearly 30 of North Carolina's 100 counties hasn't been officially certified. VR Systems persuaded an administrative law judge last Friday to side with the Florida-based company, which says the software remains approved under the original certification it obtained eight years ago, in October 2009.

Superior Court Judge Paul Ridgeway declined to intervene, deferring to Administrative Law Judge Don Overby's ongoing oversight of the case, including a proposed hearing set for next spring. The elections board formally asked the state Court of Appeals late Monday to delay the enforcement of Overby's restraining order and preliminary injunction.

The election board's staff is still investigating what they call the malfunctioning of the e-books at five Durham County precincts in November 2016, which led officials to abandon the electronic system, issue paper ballots and extend voting hours. It's unknown how many voters may have given up.

State election officials also became worried after federal officials warned that Russian spies tried to target VR Systems and send malicious emails that seemed to come from the company to more than 100 local election officials across the country. State officials said none of the 21 counties that used the software in North Carolina last year received suspected phishing emails, but the problems haven't been fully investigated.

Lawyers for VR Systems wrote in court filings that a consultant hired by the Durham County attorney ultimately determined that the software didn't fail or malfunction, instead blaming county elections workers for failing to prepare equipment properly to work with the software.

Michael Weisel, one of the company's attorneys, downplayed any Russia connection, and argued that the company has been trying to comply with a 2015 law directing that only certified poll books could be used. VR Systems had tried repeatedly to work with the state board without success, according to briefs, meaning the company can't meet contractual obligations with the counties.

"The record is replete with attempts to do that since 2015," Weisel told Ridgeway, adding "this has nothing to do with changing the rules of elections, or hacking, or anything else."

Recent certification delays also are attributed to there being no board members to officially sanction the software, said Alec Peters, a state lawyer who represented the board. There's litigation between Democratic Gov. Roy Cooper and Republican legislative leaders over the board's composition.

But Peters said the current software is very different from what was first approved eight years ago. The chances for errors Tuesday could increase if counties shift back to using VR Systems' software rather than paper poll books or the state's poll book software, the state's lawyers wrote in briefs.

It simply can't be that an administrative law judge can alter election administration rules now, and that "there is no way that a court can review that," Peters said.

Ridgeway, in acknowledging the board's request to intervene, wrote in his decision that that he lacked jurisdiction to consider an appeal when the VR Systems' case was not fully resolved by Overby. In a statement, a company executive said it was pleased with Ridgeway's ruling.

Mecklenburg and Cumberland counties, where mayoral races in Charlotte and Fayetteville will be held Tuesday, have used VR Systems e-poll books in the past. In Durham County, the state elections board took possession three months ago of laptops used in the November 2016 election and started analyzing them as part of their continuing investigation, state board spokesman Pat Gannon said.