HARRISBURG, PA – Election security advocates from the National Election Defense Coalition and the Pennsylvania-based Citizens for Better Elections have entered into a binding legal settlement with Pennsylvania Secretary of State Al Schmidt.

The settlement resolves a legal challenge to the ES&S ExpressVote XL voting machines used for in-person voting in Philadelphia, Northampton, and Cumberland counties. The groups are represented by the national nonprofit public interest legal advocacy group Free Speech For People and by BakerHostetler LLP. 

Under the settlement, the Secretary will: 

1. require counties using this voting machine to upgrade to the latest system software (which fixes some of the issues identified in the lawsuit), and to abide by the additional security procedures added as conditions of certification, in time for the 2024 election; 
2. provide unprecedented public access to reports about the real-world performance and malfunctions of voting systems in all 67 counties of the Commonwealth; and 
3. guarantee robust public access to future voting system examinations.

“I am glad we were able to reach this agreement,” says Kevin Skoglund, President of Citizens for Better Elections. “These are meaningful changes that increase public transparency and accountability, improve the voting technologies used in Pennsylvania, and benefit voters in other states too.”

The ES&S ExpressVote XL voting machine was certified for use in Pennsylvania in November 2018. In July 2019, the election security groups petitioned then-Secretary Kathy Boockvar to re-examine the machine, pointing out multiple flaws that are inconsistent with the Pennsylvania election code and that could compromise its reliability, security, and protection of voter privacy and ballot secrecy. 

“America’s democratic Republic is facing its greatest challenge since the Civil War,” states Ben-Zion Ptashnik, President of the bipartisan National Election Defense Coalition. “As fringe conspiracy theories and false claims about election results abound in our civil discourse, this case is a win-win for voters and for election officials who wish to protect both the transparency and the credibility of election results. It allows future elections to be safer from manipulations, and inoculates election technology from those wishing to undermine the credibility of our democratic institutions.”

The Secretary’s contractors examined only a small number of the alleged inconsistencies in a secret proceeding in Colorado, and the Secretary maintained the certification of the machine in September 2019. Just two months later, in November 2019, software and manufacturing defects of the ExpressVote XL machine were responsible for severe problems in Northampton County’s election. Philadelphia and other jurisdictions have also experienced problems with the machine.

In December 2019, the groups filed a lawsuit in Pennsylvania Commonwealth Court, seeking decertification of the ExpressVote XL machine. (The lawsuit did not question or seek to discredit any election results.) In October 2021, the court issued a fifty-page opinion denying the Secretary’s motion to dismiss the lawsuit. 

As the litigation was pending, ES&S worked to address some of the flaws identified in the lawsuit and released an updated version of its software. During settlement negotiations, the Secretary certified the updated version for use in Pennsylvania elections. 

“We’ve won concrete improvements in security and transparency,” says Rich Garella, a Philadelphia-based election security advocate. “We set out to strengthen Pennsylvania’s elections and help rebuild trust in our election results, and we’ve achieved that.”

The settlement consists of three main elements:

(1) Upgrade to the latest software and comply with the additional conditions for use. The Secretary will direct all counties using the ES&S ExpressVote XL voting machine to upgrade to the new software by March 1, 2024. The Secretary will also notify these counties of the “conditions for use” (protocols that address some of the system’s other flaws through procedures to work around them) and require counties to attest that they are implementing these conditions.

(2) Collect and publicize information regarding voting system malfunctions. This settlement creates Pennsylvania’s first-ever system for analyzing and reporting voting system malfunctions. Beginning with the 2023 municipal election, the Secretary must direct each county in Pennsylvania (regardless of which voting system it uses) to submit to the Department of State, within 60 days after each election, a Malfunction and Certification Report that includes a list of all malfunctions where an electronic voting system may have prevented or delayed any voter from casting a vote or prevented or delayed the tabulation or reporting of results. The Department will post these reports (with minimal redactions) on the Internet 3.5 months after each election.

(3) Improve transparency in voting system examinations. The settlement requires the Department to conduct the functionality portion of the system examination in public in Harrisburg, Philadelphia, or Pittsburgh; to provide the public 30-day notice for these examinations where feasible; to allow the public and press to observe the examination from 20 feet or less; and to make a video recording of the examination publicly available on the Internet. (Certain portions of the voting system examination, e.g., involving security measures, may not be public.)  

“This is an important development for increasing security and transparency in Pennsylvania’s voting systems,” says Ron Fein, legal director at Free Speech For People. “This settlement not only addresses several of the issues identified in our lawsuit, but also commits the Secretary and Pennsylvania’s 67 counties to transparency going forward.”

The agreement lasts through until December 31, 2028. Because of the settlement, the election security advocates have agreed to withdraw the lawsuit. Any disputes under the settlement agreement would be adjudicated by the Commonwealth Court. 

The settlement agreement is available here. The Commonwealth Court’s 2021 decision denying the Secretary’s motion to dismiss the complaint is available here. The stipulation for dismissal is here.