The New York State Board of Elections may give its stamp of approval to a new voting machine known to undercount votes. It’s testing the Express Vote XL from Election Software & Systems, a machine that uses a touchscreen and marks the ballot for the voter. While they're promoted as the most secure equipment on the market, the machines were also used in a Pennsylvania judicial contest last year where thousands of votes weren't counted.

Local elected officials and reform advocates are urging the State to reject the machines, arguing that they’re too expensive (roughly $10,000 a pop!), would make elections less secure and can’t handle a major change coming to the city in 2021: ranked choice voting.

Many of the same leaders who advocated changing the City Charter to add ranked choice voting warn that the Express Vote XL can’t handle that requirement.

“The ExpressVote XL has never been used in a Ranked Choice Voting election,” a group of officials wrote in a letter to the BOE opposing the state’s certification of the new machine. The letter was signed by Public Advocate Jumaane Williams, state Assemblymembers Catalina Cruz and Ron Kim, Council Member Brad Lander and former CCRB chair and Counsel to Mayor Bill de Blasio Maya Wiley, in coordination with the good government group Common Cause.

“The largest New York City election cycle in recent history, with wide open races for Mayor,Comptroller, four Borough Presidents, and 35 City Council seats, is no place for a trial run with a machine that has failed in other jurisdictions,” the letter argued.

State officials confirm the version of the Express Vote XL they’re testing could not meet the city’s needs.

“Could you run some sort of ranked choice voting on the [Express Vote XL] machine? You could try,” said Tom Connolly, State Board of Elections Operations Director, during a public demonstration of the machine on Tuesday. But he added, “It wouldn’t be the best way of going about it.” He said the company would need to submit a software modification explicitly to handle ranked choice voting.

The Express Vote XL uses a combination of touchscreen technology and a machine-marked ballot. Voters make their selections and those choices are marked on a paper that’s behind a plastic screen; voters never actually touch the ballot. A recent study by the University of Michigan found that so-called “ballot-marking devices” [BMDs] are vulnerable to hacking when it comes to transmitting a voter’s selection. It also found that voters rarely check to make sure the machine is accurately reflecting their choices.

“The implication of our study is that it’s extremely unsafe [to use BMDs], especially in close elections,” Alex Halderman, a University of Michigan computer science professor told The Washington Post.

Susan Lerner of Common Cause told Gothamist/WNYC that New York needed a higher standard for its machines to prevent hacking and ensure the intent of the voter is reflected. That standard, Lerner said, “is to have hand-marked paper ballot[s].”

Under state rules, the New York State Board of Elections must review and certify any new equipment or software before localities can use the equipment. Until then, local Boards of Election will continue to use, maintain and buy more of their existing equipment. In New York City, that’s the DS 200 scanners, also made by ES&S, which scan paper ballots. Those machines have also posed problems during elections, most notably when damp, two-sided ballots led to chaos in 2018.

The city used 4,054 DS 200 scanners in the November 2018 general election. If the city were to replace all those machines, the cost could approach $40 million, which is 5 times the city BOE’s existing property and equipment budget.

State officials said the certification process for the Express Vote XL is nearly halfway complete. Connolly said the state is still conducting its security testing using an independent lab. He would not say when the state’s commissioners would vote to certify the machines, or what the commissioners would consider when reviewing them. He did signal a report on the machines could come as early as next month’s commissioners meeting.

At least three of the state’s four commissioners would need to vote in favor of certification for the new machines to be used.

The Express Vote XL is currently being used statewide in Delaware and in the city of Philadelphia. But the machines are also at the center of state and federal lawsuits in Pennsylvania over whether the machines meet their state’s certification requirements.

“The ExpressVote XL produces an independent, voter-verifiable paper record, and ballots cast with the ExpressVote XL are fully auditable,” said Katina Granger, a spokeswoman for Election Systems & Software (ES&S). She added, “The ExpressVote XL has been through hundreds of thousands of hours of testing, including millions of ballots, and is certified by the Federal Election Assistance Commission.”

Granger also noted that it’s true the new Express Vote XL machines run on Microsoft 7, a decade-old version of the operating system that the software giant will no longer be updating. However, she said a Windows 10 release will “soon be available for New York systems.”

Until then, she said, Microsoft has offered free extended security updates for Windows 7 which will be supported by ES&S.