R.I. Board of Elections will not pull voting machines that had problems

Providence Mayor Elorza called for the ballot-marking machines to be removed, but the ACLU and Common Cause RI warned that could violate the Americans with Disabilities Act

Sign at new Rhode Island Board of Elections headquarters in Cranston.Edward Fitzpatrick

PROVIDENCE — The state Board of Elections won’t heed Providence Mayor Jorge O. Elorza’s call to remove ExpressVote ballot marking machines on the eve of Tuesday’s primaries because the board says that would leave Rhode Islanders with disabilities with no accessible voting method.

On Friday, Elorza called for pulling out the ExpressVote machines because of a series of problems that arose with the Spanish-language version of the ballot during early voting.

But the American Civil Liberties Union of Rhode Island and Common Cause Rhode Island warned that removing the machines, which let voters choose candidates on a touch-screen or by using a remote, would violate state and federal law, including the Americans with Disabilities Act.

The Board of Elections had scheduled an emergency meeting for 10 a.m. Monday to discuss Elorza’s request, but the board issued a statement on Sunday night saying it was canceling the meeting “upon the advice of legal counsel.” And it echoed the points made by the ACLU and Common Cause.

“The request to remove all ExpressVote equipment on the eve of the primary would leave persons with disabilities with no accessible voting method, in violation of Title II of the Americans with Disabilities Act,” Board of Elections executive director Robert Rapoza said.

“The board will convene a meeting in the near future to further discuss the ExpressVote equipment, as well as receive a report regarding its use during the primary,” he said. “Of course, if other circumstances develop on any matter involving the election process in the state of Rhode Island, the board is prepared to meet and address any such issue that may arise.”

The first sign of trouble with the new ExpressVote machines came on Aug. 30 when Providence’s elections administrator called the Board of Elections to say that poll workers and voters at the Doorley Municipal Building reported seeing Elorza’s name on the ballot while using the machines. That set off alarms because Elorza is term-limited and is not running for any office this year.

As it turned out, the Spanish language version of the ballot was displaying candidates from 2018 instead of 2022, and it was later revealed that Providence mayoral candidate Gonzalo Cuervo’s name was misspelled as “Gonzolo.”

Joe Vitale, Rhode Island account manager for Election Systems & Software, told the board last week that the problems stemmed from human error.

“ES&S takes full responsibility for this error and apologizes to the secretary of state’s office, the Board of Elections, and affected voters in the state of Rhode Island,” Vitale said. “Going forward, we will put procedures in place to make sure this will never happen again.”

The Board of Elections voted to create a written protocol for ballot verification that would involve the secretary of state’s office, the Board of Elections, and ES&S, the state’s vendor.

The board looked into the possibility of using autoMARK machines that had been used in the past. But Vitale wrote to the board, saying ES&S no longer makes or sells those machines, and he said the company had last performed maintenance on those machines in 2020. “Since then, we had four statewide elections with the failure rate increasing exponentially,” he wrote. “I believe at least one-third of those machines have issues.”

So Vitale urged the Board of Elections to proceed with the new ExpressVote machines

“Thirty-five communities have been using the ExpressVote for early voting since Aug. 24 and have not reported any issues,” he wrote. “The other four communities using the English and Spanish have not reported any additional issues. Therefore, ES&S does not see any reason why you should not use these machines.”

Steven Brown, executive director of the ACLU of Rhode Island, on Monday said he is glad the state will not remove the ExpressVote machines just before the primaries.

“The mayor clearly overreacted to the problems that were brought up about the new machines, but the board acted expeditiously to address the concerns,” Brown said. “The original glitches have been discovered, and at least at this point I feel comfortable seeing them used (on Tuesday).”

Brown noted that one problem won’t be fixed by Tuesday: The printed ballots voters receive after using the touchscreen are in English even if the voter opted to vote in Spanish. But he said the board made clear that it wants that problem fixed by November, and he said that’s not a reason to get rid of the ExpressVote machines on Tuesday.