DURHAM -- In a 2-1 party-line vote Wednesday, the Durham County Board of Elections agreed to move forward with an evidentiary hearing questioning the more than 94,000 ballots manually entered here on election day.
The hearing is at 11 a.m. Friday in the countywide meeting room on the second floor of the Durham County Human Services Building, 414 E. Main St.
BOE Chairman Bill Brian and board member Margaret Griffin, both Republicans, voted to proceed with the hearing process. Dawn Baxton, the board’s lone Democrat, voted no.
“There is a stigma associated with it that somehow (in) counties that have a majority of an African-American population we have to recount twice because ‘We can’t trust them,’ ” Brian said. “I don’t appreciate that at all. I don’t appreciate the comments that have been made by various people in the public that cast this doubt on Durham.”
(According to the American Community Survey of July 1, 2015, Durham County’s population at that time was 53.1 percent white, 38.4 percent African American, 13.4 percent Latino/Hispanic and 2.4 percent “two or more” races.)
Though he said he had difficulty finding probable cause that something was wrong with the Nov. 8 election, he said the board has set a precedent of a low bar for past evidentiary hearings, and the county has a history of giving residents the opportunity to speak.
Friday’s hearing is related to a petition filed by Durham County resident Thomas Stark, who is an attorney affiliated with the state’s Republican Party.
“We were not trying to undertake a scorched earth investigation of every issue, and obviously that can be done, but this seemed like a simple manner to count those ballots,” Stark said.
Stark said he filed the petition in his own capacity on not on behalf of Gov. Pat McCrory's campaign.
McCrory's campaign weighed in on Durham County’s decision Wednesday.
“We believe it is in everyone's best interest to get to the bottom of what happened so that people can have faith in the results, process and system,” said Ricky Diaz, a spokesman for McCrory's campaign.
A little more than 5,000 votes separated McCrory and Democrat Roy Cooper as of Wednesday night.
Though Stark said he knows the governor could have the ability to request a statewide recount, he said he thinks there is probable cause to proceed with an evidentiary hearing.
“The crux of the whole thing is to have an accurate count,” Stark said, preferring a manual recount of all 94,000 ballots.
Memory cards from voting machines at five early voting sites and one election day precinct did not upload to the state’s system, and the ballots affected were manually entered after the polls closed on Nov. 8.
Kathy Rogers, is the senior vice president of government relations for Election Systems and Software, which developed the state’s Unity voting system. Rogers said Durham County ballots cast during early voting were scanned into an M100 tabulator. The ballots, cards and record tape (which acts as a backup to the cards) are all records of the results, she said.
Cards the county attempted to load from the five early voting precincts exceeded their limits, which is 65,535 votes.
Rogers said that limitation is the same for all M100 systems in the nation.
“It’s no different than your phone which you can only put so many photos or so many videos on,” she said.
Ben Swartz, a state certification manager with the election equipment company, said though the cards exceeded the data limit, there is nothing wrong with the integrity of the data recorded on the tapes.
In an the affidavit provided to the board late Tuesday night, Brian Neesby, a business systems analyst for the state BOE, said he reviewed logs fed into the state’s voting system that loaded the results of the cards that failed to load from Durham County.
He, too, cited the card capacity limits.
“I have reviewed the results within the Unity logs that appear to be the tabulated results, which would mirror the paper tapes printed from each tabulation machine,” Neesby said.
Those results show what Brian described as small tabulation errors in uncontested county races and Durham County’s four bond referendums, but none which affected the governor or presidential races.
Baxton said both the state and machine manufacturers said Durham County’s results are not corrupt.
“In fact the numbers with respect to the governor’s race that was manually entered -- based on the admission of Mr. Neesby -- is consistent and identical to what was actually uploaded to the software,” Baxton said.
Griffin said she still thinks there are a lot of questions to be answered and thinks to be open and transparent, the ballots should be recounted.
She requested an investigation of why the card from Precinct 29, which did not exceed limitations,would not load to the state system.
Evidence Stark said he intends to present at Friday’s hearing includes testimony from an elections judge who will testify the machines have two card slots, but no backup slots were used in Durham County.
He said another resident will testify what he observed regarding the handling of disks and a former councilman can testify that there is an ability to “corrupt” the cards.
“Neither I nor anyone I know has had an opportunity to test the cards nor an opportunity to inspect the tapes,” Stark said.
Brian said those are locked away to maintain their integrity.
The only public records request for access of the tapes was filed by the Democratic Party, he said.