State voting machines suit moved to federal court

Use of bar code in tabulation questioned

Staff Photo by Ellen Gerst / Hamilton County's Dominion voting machines sit atop ballot boxes at the Election Commission office Tuesday.
Staff Photo by Ellen Gerst / Hamilton County's Dominion voting machines sit atop ballot boxes at the Election Commission office Tuesday.

A lawsuit seeking to stop Arkansas election officials from using bar-code voting machines was moved this week from Pulaski County Circuit Court to federal court.

The suit was filed in February against Secretary of State John Thurston, the State Board of Election Commissioners and Election Systems and Software by Conrad Reynolds, a retired U.S. Army colonel from Conway who has run unsuccessfully for Congress and leads a group called the Arkansas Voter Integrity Initiative Inc.

Election Systems and Software was dismissed as a defendant in the suit in March.

In a news release, Reynolds' group said a Tuesday court date for the suit was canceled and that Attorney General Tim Griffin had used the "federal question doctrine" to move it to federal court.

"Plaintiffs argue that the voting machines do not comply with the Help America Vote Act of 2002 (HAVA) and state law," said Griffin in a statement. "But they fail to acknowledge whatsoever that these machines are certified by the very commission that sets the standards under HAVA and are separately verified by the State Board of Election Commissioners. Because their lawsuit challenges federal law, the case required removal from state to federal court."

"I feel we would have had a favorable ruling on Tuesday, had we had our hearing," Reynolds said in his group's release Thursday.

"We are asking for a temporary restraining order on the voting machines. They should not be used while they violate election laws. But, now we have the opportunity to change not just Arkansas, but all states that use bar codes in vote tabulation."

The lawsuit, which had been assigned to Circuit Judge Tim Fox before it was moved to U.S. District Court in Little Rock on Wednesday, urged the court to rule that the ExpressVote and DS200 voting machines used by the state "do not comply with Arkansas law because the voter cannot independently verify the votes selected by the voter on the ballot prior to being cast by the voter as the ordinary and common voter cannot read bar codes."

According to the lawsuit voters mark their ballots using ExpressVote, which prints a ballot summary card that includes a bar code at the top "allegedly encoding the voter's selected candidates and/or issues." The summary card is fed into the DS200, which tabulates the votes by reading the bar code.

"It's just a means of moving data from one spot to the other, real simply put, that's what it is," said Susan Inman, who served as elections director for then-Secretary of State Sharon Priest and is a former Pulaski County election commissioner.

"What [Reynolds is] not saying to you is when the voter inserts the card into the reader the ballot actually displays itself to the voter, who can confirm in fact he's got a real ballot," Inman explained. "Then the voter touches the screen to mark it. And then when the voter is given several options, 'Are you sure? Are you sure?,' then reviews his choices, it prints out that ballot to the voter who has to look at it and confirm that in fact was what the voter did."

Reynolds, a 2020 presidential election denier, advocates for moving to paper ballots and manually counting them.

Inman said such a move would "open the door ... for human mistakes in a major way."

"Because none of our ballots that we vote on in major elections just have one thing on it -- it's got multiple things and each thing has to be tabulated," Inman said. "If they're gonna do it by paper and hand count -- my gosh, you're gonna be there forever."

Inman said she saw the problems that could arise from hand counting during her time as a foreign election observer. She's served in that capacity in many countries in Europe, including much of the former Soviet Union.

She was in Ukraine in 2019 when Volodymyr Zelenskyy was elected president.

"That is what they do," Inman said of the elections she observed with hand counting. "It takes literally all night long to hand count ballots and then rectify or reconcile all the numbers with people observing and testing."

Inman said she sees "nothing that merits this change" in the election process that Reynolds is advocating for.

"We took a long time to be able to get past counting votes by hand," Inman said, citing a 2011 book by Tom Glaze titled "Waiting for the Cemetery Vote." It recounts the state's history of election fraud in the mid-20th century and reform efforts in the 1970s.

Manual counting "just opens the door for fraud and human error," Inman said. "If you're sitting there counting ballots to four o'clock in the morning and if you miss a hash mark, you've affected someone's vote for someone. ...

"The technology has evolved to give us the protection we need and yet give us a pretty quick, unofficial results scenario."

Inman said, "So many things are matched and verified. What [Reynolds] is asking is to delay, delay, delay."

Reynolds lost to incumbent U.S. Rep. French Hill in the 2022 Republican primary in the 2nd Congressional District. He also lost to Hill in the 2014 primary.

Reynolds said in a February news release his lawsuit had nothing to do with the results of his failed bids for office, but is about "having an election process in place that citizens can trust."

During his campaign in 2022, Reynolds told the Arkansas Democrat-Gazette "Unlike French Hill, I believe the [2020 presidential] election was stolen and will work tirelessly on election integrity."

Reynolds has appeared in a recent TV ad campaign for the Arkansas Voter Integrity Initiative that included the endorsement of Kari Lake.

Lake is the failed 2022 Republican candidate for the Arizona governor's office, having lost to Democrat Katie Hobbs by roughly 17,000 votes.

Lake has repeatedly attempted, and failed, to have the election results overturned over various unsubstantiated allegations of fraud and other claims. Her most recent attempt in court was rejected this week.

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