Free Speech For People filed a lawsuit in Pennsylvania state court challenging the use of the insecure, unreliable ExpressVote XL voting machines. The lawsuit, filed against Secretary of the Commonwealth Kathy Boockvar with the pro bono assistance of the law firm Baker Hostetler LLP, argues that the ExpressVote XL does not meet legal requirements for voting machines under the Pennsylvania Election Code, and use of it violates voting rights under the Pennsylvania Constitution. The plaintiffs are the National Election Defense Coalition, the Pennsylvania-based Citizens for Better Elections, and a group of individual Pennsylvania voters. In August of 2023, Election security advocates from the National Election Defense Coalition and the Pennsylvania-based Citizens for Better Elections entered into a binding legal settlement. This settlement requires counties with the voting machine to upgrade to the latest system software, and improve transparency and accountability for voting technologies in Pennsylvania. (The original defendant was Pennsylvania’s then-Secretary of State Kathy Boockvar, but the caption was updated to reflect the current Secretary, Al Schmidt.) I Key Facts II Background III Major Case Developments and Documents IV In the News V Other Resources Key Facts Caption National Election Defense Coalition v. Schmidt (previously Boockvar) Court Commonwealth Court of Pennsylvania Docket No. 674 MD 2019 Status Settlement agreement reached Plaintiffs National Election Defense Coalition, Citizens for Better Elections, and individual plaintiffs Defendant Secretary of the Commonwealth Al Schmidt (previously Kathy Boockvar) Background The ES&S ExpressVote XL voting machine is considered an “all-in-one” Ballot Marking Device (BMD). It is called “all-in-one” because it combines two tasks which are more often performed by two separate devices: marking vote choices on a piece of paper, and tabulating votes from a piece of paper. An all-in-one hybrid combines these two voting processes in a single device. In the case of the ExpressVote XL, it very nearly approaches being a Direct Recording Electronic machine. Voters cast their votes on an ExpressVote XL by entering their choices on a touchscreen. The machine then prints a piece of paper, featuring both a machine-readable bar code and some arguably human-readable text. (The text may not be human-readable in practice, due to issues such as small font size, and referring to ballot initiatives solely by their number rather than name, e.g., “ISSUE NO. 5 . . .. FOR ISSUE NO. 5.”) The machine scans the bar code (not the human-readable text), and then shows the paper to the voter through a glass window to “verify.” If the voter accepts it, the paper is then passed back into the machine; if not, the voter can “spoil” the ballot with the assistance of a poll worker. In 2018, the Secretary certified the ExpressVote XL for statewide use in Pennsylvania. Recently, and with considerable controversy (and indications of municipal procurement law violations), Philadelphia County’s elections board decided to enter a multi-million dollar contract to buy this machine. In July 2019, working with the National Election Defense Coalition (NEDC) and the Philadelphia-based Citizens for Better Elections (CBE), and on behalf of about 200 Pennsylvania voters, we submitted a petition to the Pennsylvania Secretary of the Commonwealth to “re-examine” and de-certify the ES&S ExpressVote XL voting machine for failing to comply with nine different provisions of the Pennsylvania Election Code (plus a tenth ground pertaining to the federal settlement in Stein v. Cortes, which requires “paper ballots”). The Secretary’s office conducted a secret, out-of-state re-examination, and on September 3, 2019, released the results of that re-examination. The Secretary’s report declined to even address seven of the ten grounds. Of the remaining three, the Secretary rejected one, and for the others, found a deficiency but proposed to address it through training and procedures that the Secretary cannot mandate or enforce. The machines were used in the November 2019 election in Philadelphia and Northampton Counties. In Northampton County, the ExpressVote XL machines caused severe problems, which were detected only because they produced extreme and obviously implausible results. Our lawsuit sought an order to the Secretary to decertify the ExpressVote XL. In August of 2023, Election security advocates from the National Election Defense Coalition and the Pennsylvania-based Citizens for Better Elections entered into a binding legal settlement. Under the settlement, the Secretary will: 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; provide unprecedented public access to reports about the real-world performance and malfunctions of voting systems in all 67 counties of the Commonwealth; and improve transparency in voting system examinations, by guaranteeing robust public access to future voting system examinations. Learn more about the settlement Major Case Developments and Documents Complaint (Dec. 12, 2019) Plaintiffs’ motion for preliminary injunction (Jan. 14, 2020) State’s preliminary objections (Jan. 15, 2020) State’s brief in support of application to stay proceedings (Jan. 16, 2020) Plaintiffs’ opposition to staying proceedings (Jan. 16, 2020) Order denying state’s application to stay proceedings (Jan. 17, 2020) State’s brief in opposition to motion for preliminary injunction (Jan. 22, 2020) Order regarding proceeding without counties (Jan. 24, 2020) Praecipe withdrawing application for preliminary injunction (Jan. 24, 2020) Amended complaint (Feb. 4, 2020) State’s preliminary objections to amended complaint (Mar. 5, 2020) Plaintiffs’ answer to state’s preliminary objections (Mar. 17, 2020) State’s application for stay of discovery and protective order (Apr. 2, 2020) Plaintiffs’ answer and opposition to state’s application for stay and protective order (Apr. 16, 2020) State’s reply brief in support of motion for stay (Apr. 28, 2020) State’s brief in support of preliminary objections (Apr. 30, 2020) Plaintiffs’ brief in opposition to preliminary objections (May 21, 2020) Order denying preliminary objections (Oct. 15, 2020) Settlement Agreement (August 14, 2023) Amended Stipulation and Order of Dismissal (August 24, 2023) In the News Pennsylvania agrees to start publicly reporting problems with voting machines August 22, 2023 Some voting security groups want Northampton County voting machines gone after November malfunction WFMZ (Jan. 14, 2020) Voting security advocates seek to block use of Northampton County’s machines Morning Call (Jan. 13, 2020) Lawsuit seeks to force Pennsylvania to scrap these electronic voting machines over hacking fear Washington Post (Dec. 13, 2019) A Pennsylvania County’s Election Day Nightmare Underscores Voting Machine Concerns New York Times (Nov. 30, 2019) Citing election security, advocates seek to force Pa. to reexamine new voting machines Philadelphia Inquirer (July 17, 2019) Other Resources Original certification of ES&S EVS 126.96.36.199 (including ExpressVote XL) (Nov. 30, 2018) Petition to re-examine ExpressVote XL (July 16, 2019) Letter to Secretary regarding transparency of re-examination process (Aug. 23, 2019) Secretary’s report on re-examination (Sept. 3, 2019) Learn more about our work fighting for free and fair elections!