Fighting Pennsylvania’s use of insecure voting machines
Free Speech For People has 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.
|Caption||National Election Defense Coalition v. Boockvar|
|Court||Commonwealth Court of Pennsylvania|
674 MD 2019
|Status||Complaint filed; Secretary has moved to dismiss|
|Plaintiffs||National Election Defense Coalition, Citizens for Better Elections, and individual plaintiffs|
|Defendant||Secretary of the Commonwealth Kathy 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.
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)
In the news
- WFMZ, Some voting security groups want Northampton County voting machines gone after November malfunction (Jan. 14, 2020)
- Morning Call, Voting security advocates seek to block use of Northampton County’s machines (Jan. 13, 2020)
- Washington Post, Lawsuit seeks to force Pennsylvania to scrap these electronic voting machines over hacking fears (Dec. 13, 2019)
- N.Y. Times, A Pennsylvania County’s Election Day Nightmare Underscores Voting Machine Concerns (Nov. 30, 2019)
- Philadelphia Inquirer, Citing election security, advocates seek to force Pa. to reexamine new voting machines (July 17, 2019)
- 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)