Free Speech For People, Lawyers’ Committee For Civil Rights, and pro bono law firm Sheppard Mullin, on behalf of plaintiffs North Carolina NAACP and several individual voters, are seeking a preliminary injunction to enjoin the use of the insecure, unreliable, unsafe, and unverifiable ExpressVote voting machine in North Carolina. On Tuesday, the plaintiffs submitted a brief in support of the Motion for Preliminary Injunction, which will be argued in Wake County Superior Court on Thursday, August 6.

Plaintiffs have asked the court to prohibit Defendant Counties from using the ExpressVote. Plaintiffs specifically ask that paper ballots be made available in all Defendant Counties, and that Defendant Counties obtain accessible voting machines that are secure and enable voters to verify their votes.

Currently, twenty-one counties in North Carolina intend to deploy the ExpressVote for us by voters in the November 2020 general elections. Seven of these counties will require all voters to use the ExpressVote to vote; two additional counties will require all voters to use the ExpressVote during the early voting period. In these counties, universal use of voting machines during the pandemic will pose unique, unnecessary risk to the health of voters. When all voters are required to use voting machines, they typically face longer wait times—which means more time in a crowd—an issue that will be exacerbated by the time needed to frequently disinfect the machines. Moreover, using the machines will require all voters to touch the same surface repeatedly and to be in close contact with poll workers. As a result, voters in these counties will be at higher risk for transmitting or becoming infected with the virus causing COVID-19.

And in all Defendant Counties, there are voters who need, prefer, or are required to vote on the ExpressVote, which does not adequately protect their votes. The ExpressVote is a barcode-based ballot-marking device, whose printed record contains a barcode and a text summary of the voters’ choices. But the optical scanners that tabulate the vote only reads the barcode—which means voters cannot read or verify the vote that is counted. The ExpressVote also is insecure, with flaws that make it vulnerable to programming error and hacking—and experts expect hackers to target U.S. elections in 2020, just as they did in 2016.

The health risks, security flaws, and unverifiable vote all create unconstitutional burdens on voters’ right to vote. Plaintiffs now ask the court to order a preliminary injunction that will protect North Carolina’s free elections, and ensure that voters are able to cast verifiable, secure votes in a safe polling place.

Plaintiffs supported their Motion with expert affidavits from computer science experts, who provided written testimony as to the ExpressVote’s security flaws, the imminent risk that North Carolina—and all states—face from hackers. These experts also explained why the ExpressVote’s barcode system prevents voters from verifying their votes. Plaintiffs also provided testimony from an expert epidemiologist, who explained why universal use of the ExpressVote will create opportunities for COVID-19 infections to pass between voters and poll workers. Finally, plaintiffs also have supporting written testimony from several election officials who attested to the feasibility of implementing the injunction ahead of the November 2020 elections.

In three months, North Carolina voters will go to the polls to decide who will run their local towns, their school districts, their courts, their state, and their federal government. These are all critically important races. No one should have to risk their health in order to vote, and no one should be required to cast a vote without being able to verify the contents of their vote. Nor should anyone have to vote on a critically flawed machine. Most North Carolina voters live in counties that rely on secure, effective hand-marked paper ballots, and provide safe, verifiable accessible technology to those who need it. Plaintiffs, and all voters in Defendant Counties, deserve the same safe, secure, verifiable voting experience.

Read the brief supporting Motion for Preliminary Injunction here.