National Election Defense Coalition v. Boockvar

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 seeks an order to the Secretary to decertify the ExpressVote XL. If the machines are decertified, Pennsylvania counties including Philadelphia and Northampton will have to restart their selection processes, choosing from the remaining certified voting systems.