MARK BANFIELD, SARAH BECK, JOAN BERGQUIST, ALAN BRAU, LUCIA DAILEY, PETER DEUTSCH, CONSTANCE FEWLASS, BARBARA GLASSMAN, MARIJO HIGHLAND, JANIS HOBBS-PELLECHIO, DEBORAH JOHNSON, ANDREW MCDOWELL, JAMES MICHAELS, J. WHYATT MONDESIRE, MARY MONTRESOR, RE
JAMES MOORE, CATHY REED, REGINA SCHLITZ, ALEXANDER SICKERT, DANIEL SLEATOR, SUSANNA STAAS, STEPHEN J. STRAHS, MARY VOLLERO, JEANNE ZANG, Appellants
PEDRO CORTÉ S, ACTING SECRETARY OF THE COMMONWEALTH, Appellee
Argued September 10, 2014
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Appeal from the Notice of Judgment of Commonwealth Court entered at No. 442 MD 2006 entered October 15, 2013 in favor of Respondent and against petitioners on Counts I, II, III, IV, V, VI, VII, VIII, IX and X of the Petition for Review.
Other Court Judge: Bonnie Brigance Leadbetter, Judge.
For Election Systems & Software, Inc., PARTICIPANTS: Elizabeth Jan Goldstein, Esq., Dilworth Paxson LLP.
For Sequoia Voting Systems', PARTICIPANTS: Marc J. Zucker, Esq., Weir & Partners, L.L.P.
For Mark Banfield, et al, APPELLANT: Katie Lynn Bailey, Esq., Michael Patrick Daly, Esq., Meredith Nissen Reinhardt, Esq., Drinker Biddle & Reath LLP; Michael Churchill, Esq., Public Interest Law Center of Philadelphia; Benjamin David Geffen, Esq.; Garrett Douglas Trego, Esq.
For Rutgers School of Law - Constitutional Rights Clinic, APPELLANT AMICUS CURIAE: David J. Berney, Esq.
For Carol Aichele, APPELLEE: Steven Edward Bizar, Esq., Shawn N. Gallagher, Esq., Richard M. Simins, Esq., Buchanan Ingersoll & Rooney, P.C.; Gregory Eugene Dunlap, Esq., PA Governor's Office of General Counsel; Robert J. Fitzgerald, Esq.; Kathleen Marie Kotula, Esq., PA Department of State; Brock Edward McCandless, Esq.
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ. MR. JUSTICE STEVENS. Former Chief Justice Castille and Former Justice McCaffery did not participate in the decision of this case. Mr. Chief Justice Saylor, Messrs. Justice Eakin and Baer and Madame Justice Todd join the opinion.
MR. JUSTICE STEVENS
In this appeal, we must determine whether the Commonwealth Court erred in upholding the decision of the Secretary of the Commonwealth to certify certain direct-recording electronic voting systems (DREs) for use in Pennsylvania elections. The Commonwealth Court found that the DREs satisfy the certification requirements set forth in the Election Code and do not infringe on the fundamental right to vote as protected by the Pennsylvania Constitution. For the reasons that follow, we affirm the Commonwealth Court's decision to grant the Secretary's motion for summary relief.
Before we consider the specific facts of this case, it is necessary to give a brief overview of our state law on voting system certification. The Election Code, enacted in 1937, initially permitted voting with paper ballots or mechanical lever voting machines. 25 P.S. § § 2961-71 (ballots); 25 P.S. § § 3001-18 (voting machines). In 1980, the General Assembly amended the Election Code to allow the use of electronic voting systems, which include optical scanners, punch card systems, and DREs. 25 P.S. § § 3031.1-3031.22 (electronic voting systems). Optical scanners (akin to standardized testing methods) and punch card voting allows voters to mark selections on a paper ballot that is subsequently scanned and counted by an automatic tabulation device. In contrast, DREs display an electronic ballot on a screen and allow an individual to vote using a button, dial, or touch screen. The DREs at issue do not produce a contemporaneous paper record of an individual's vote, but store each vote on internal memory. However, all of the DREs at issue are capable of printing the vote data at the close of the election; some DREs print on full sheets of paper while others print on thermal paper, which
is commonly used for printing receipts. In addition, electronic vote data can be removed from the DRE on external memory devices, such as flash drives and memory cards, and connected to a different electronic system to tally the votes.
In October 2002, Congress enacted the Help America Vote Act (" HAVA," Pub. L 107-252, formerly 42 U.S.C. § 15301, et seq., transferred to 52 U.S.C. § 20901, et seq.) to reform the nation's voting process in response to the issues that arose in the 2000 presidential election. See generally Bush v. Gore, 531 U.S. 98, 121 S.Ct. 525, 148 L.Ed.2d 388 (2000). One of HAVA's main purposes was to authorize funding for the replacement of lever and punch card voting machines with other systems that are HAVA compliant. Although the Secretary urged counties to obtain electronic voting systems, each county retained discretion on whether to replace their voting systems, provided that the chosen system met federal and state requirements. Commonwealth of Pennsylvania State Plan as required by HAVA (Sept. 15, 2005). One such requirement in the Election Code is that an electronic voting system must be subject to a certification process before it is deemed authorized for use in an election. The Secretary has the duty " [t]o examine and reexamine voting machines, and to approve or disapprove them for use in this state, in accordance with the provisions of [the Election Code]." 25 P.S. § 2621(b). A county board of elections may choose among the certified electronic voting systems and independently procure such system for use in its districts. 25 P.S. § 3031.4. The board of elections then appoints custodians to prepare the voting system for use. 25 P.S. § 3031.10.
Appellants, twenty-four Pennsylvania voters, filed this action in 2006 in the Commonwealth Court's original jurisdiction to challenge the certification of the six DRE models in use in Pennsylvania. Seeking declaratory, mandamus, and injunctive relief, Appellants claimed the Secretary should be ordered to decertify the DREs which do not comply with the Election Code and compelled to adopt more rigorous testing standards. In Count I, Appellants claimed the DREs do not meet the Election Code's definition of an electronic voting system as they cannot produce a " permanent physical record of each vote cast." 25 P.S. § 3031.1. In Count II, Appellants contended the DREs do not " preclude every person from tampering with the tabulating element." 25 P.S. § § 3031.7(16)(iii), (17)(i). In Counts III and VII, Appellants asserted the Secretary failed to adopt adequate procedures to test the DREs' reliability, accuracy, and security. In Count IV, Appellants alleged the DREs do not allow officials to conduct a " statistical recount of a random sample of ballots...using manual, mechanical or electronic devices of a type different than those used for the specific election." 25 P.S. § 3031.17. In Count V, Appellants claimed voting officials cannot perform full
recounts on DRE results. See 25 P.S. § 3154(e) (recount to assess discrepancy in election results), § 3261 (recount upon the voters' request). In Count VI, Appellants challenged the Secretary's denial of the voters' requests for reexamination of the DREs. See 25 P.S. 3031.5. In Counts VIII, IX, and X, Appellants claimed the DREs' certification interferes with their suffrage rights under various provisions of the Pennsylvania Constitution.
The Secretary filed preliminary objections to the Petition for Review. The Commonwealth Court overruled these objections in a published opinion. Banfield v. Cortes, 922 A.2d 36 (Pa. Cmwlth. 2007) (en banc) (" Banfield I" ). In the discovery phase of trial, the parties obtained reports and deposition testimony from expert witnesses who reviewed the Secretary's examination reports. Appellants retained two experts, Dr. Douglas Jones, Ph.D., and Dr. Daniel Lopresti, Ph.D., who contended that the certified DREs do not meet several requirements of the Election Code and the Secretary's certification process is inadequate to determine whether electronic voting systems meet accuracy, security and reliability requirements. In addition, Appellants relied on studies conducted by other states that reveal security vulnerabilities in the DREs at issue. The Secretary's expert, Dr. Michael I. Shamos, Ph.D., J.D., opined that both the DREs and the Secretary's certification process conform to the Election Code and the Secretary acted within his discretion in certifying the DREs at issue for use in Pennsylvania.
In August 2011, Appellants filed a motion for partial summary judgment as to Counts I, IV, VI, IX, and X, arguing they were entitled to judgment as a matter of law on claims in which the parties did not dispute the relevant technical attributes of the DREs alleged to violate the Election Code. The Secretary filed a motion for summary relief, seeking the dismissal of Appellants' action in its entirety as Appellants did not demonstrate the DREs should be decertified and improperly sought mandamus relief. The Commonwealth Court scheduled en banc argument on Appellants' motion and directed that all other matters, including the Secretary's motion, be held in abeyance.
On August 29, 2012, the Commonwealth Court denied Appellants' motion for partial summary judgment in a published, en banc opinion. Banfield v. Aichele, 51 A.3d 300, 302 (Pa. Cmwlth. 2012) (en banc) (" Banfield II" ). The Commonwealth Court first rejected Appellants' multi-faceted claim in Count I that the DREs do not satisfy the Election Code's definition of an electronic voting system as they cannot " provide for a permanent physical record of each vote cast." 25 P.S. § 3031.1. While Appellants contended this provision requires a DRE to produce a contemporaneous paper record at the time a vote is cast, the Commonwealth Court construed the phrase " provide for a permanent physical record" to refer to the DREs' ability to generate such a record upon demand. Thus, the Commonwealth Court found that all the DREs at issue meet this requirement as they can print a permanent physical record when specifically requested.
Rejecting Appellants' claim that vote records must be immune from intentional
or unintentional alteration to be " permanent," the Commonwealth Court emphasized that " any record, whether paper or electronic, is subject to destruction, loss, tampering or wear." Banfield II, 51 A.3d at 307. However, the Commonwealth Court reasoned that a " permanent record" must remain intact for at least the minimum periods set by law for the purposes of recounts, recanvassing, and litigation: 20 days for state contests and 22 months for federal elections. Noting Appellants did not challenge the permanency of DRE records printed on full sheets of paper, the Commonwealth Court majority found that the testimony of Appellants' experts, who claimed that records printed on thermal paper are fragile and prone to fading, " was too vague and non-specific to declare as a matter of law that vote records [the DREs print] on thermal paper are not permanent." Id. at 309. The majority criticized Appellants for failing to identify which specific DREs use thermal paper and emphasized Appellants had not challenged Dr. Shamos's opinion that the legibility of thermal paper will exceed the twenty-two month federal ballot retention requirement if kept from direct exposure to heat. Moreover, the majority found the DREs' electronic data are also sufficiently permanent, but did not resolve the issue of whether such data constitutes a physical record as the parties did not dispute that every DRE at issue is capable of providing printed records.
In addition, the Commonwealth Court majority did not accept Appellants' claim that the DREs fail to produce a " record of each vote cast." As the DREs' vote recording process is software-dependent, Appellees claim there is no way to verify a DRE accurately recorded a voter's selections if the software is corrupted or flawed. Although it recognized the validity of this concern, the Commonwealth Court majority found Appellants' assertion that the Election Code requires software-independent voting to be inconsistent with the 1980 amendments authorizing the use of voting systems that only register votes electronically. While Appellants may rightfully question the vulnerability of DREs to tampering, the Commonwealth Court majority reasoned that the Secretary's certification and approval process is a proper safeguard against such security concerns.
Second, the Commonwealth Court concluded that Appellants were not entitled to summary judgment on Count IV in which Appellants alleged that the DREs cannot " conduct a statistical recount... using manual, mechanical or electronic devices of a type different than those used for the specific election." 25 P.S. § § 3031.17. Reasoning that this provision merely requires that a sample of ballots be counted, not produced, by another device, the Commonwealth Court found a statistical recount can be performed on a DRE that is capable of printing records that can be counted manually. The Commonwealth Court also discounted Appellants' claim that the statistical recount provision requires an audit to assess whether the DRE captured correct voter intent. Instead, the Commonwealth Court reasoned that this provision requires a simple retally of a statistical sample of the votes. The Commonwealth Court reiterated that the Election Code does not require software-independent vote records as several provisions authorize systems which only register
votes electronically and differentiate between electronic voting systems that use paper ballots and those that do not use paper ballots. See 25 P.S. § 3154(e)(4) (providing for the recanvassing of votes for districts using electronic voting systems without paper ballots); 25 P.S. § 3262 (same).
In a footnote, the Commonwealth Court criticized Appellants' reliance on another provision which allows voters to demand a full recount in the event of fraud or error. 25 P.S. § 3261. The Commonwealth Court noted that 25 P.S. § 3031(18) clarifies that the recount procedure in Section 3261 is reserved for electronic systems utilizing paper ballots and provides that other types of electronic systems shall be assessed under Section 3262 (allowing officials to recanvass voting machines by examining the registering counter without unlocking the machine against voting). As a result, the Commonwealth Court declined to enter judgment for Appellants on Count IV.
Third, the Commonwealth Court declined to issue a writ of mandamus to order the Secretary to comply with Appellants' request in Count VI for the reexamination of previously certified electronic voting systems. See 25 P.S. § 3031.5. Acknowledging the Election Code requires the Secretary to reexamine such voting systems upon the proper request of ten or more qualified registered electors, the Commonwealth Court noted the Secretary had conceded that such examinations would be appropriate. Unaware of whether such examinations had taken place, the Commonwealth Court ordered the parties to file a report on the status of the reexaminations.
Lastly, the Commonwealth Court dismissed Appellants' claim that Secretary's certification of the DREs resulted in constitutional violations of their fundamental right to vote. As Appellants had not shown that the Secretary's certification was illegal, the Commonwealth Court found Appellants were not entitled to judgment as a matter of law on Counts IX and X. For the foregoing reasons, the Commonwealth Court denied Appellants' motion for partial summary judgment.
Judge McCullough filed a concurring and dissenting opinion, which was joined by Judge Pellegrini. Although Judge McCullough agreed with the Majority's resolution of Counts IV, VI, IX, and X, she asserted Appellants should have been granted summary judgment on Count I as the DREs do not " provide for a permanent physical record of each vote cast." Judge McCullough rejected the Majority's finding that electronic data can be considered " permanent," arguing that such data is vulnerable to alteration undetectable to a human observer. Judge McCullough also argued that electronic data does not constitute a physical record of each vote cast. In addition, Judge McCullough also questioned whether records printed on thermal paper are sufficiently " permanent," crediting the testimony of Appellants' expert who claimed thermal paper can become unreadable in a matter of weeks if not stored properly. Thus, Judge McCullough concluded Appellees were entitled to judgment as a matter of law on Count I.
On January 29, 2013, the Commonwealth Court issued a single-judge order by Judge Leadbetter, finding Count VI to be moot after the Secretary performed the requested DRE reexaminations and dismissing Count I (permanent physical record of each vote cast) and Counts IV and V (statistical recount) based on the reasons set forth in the Commonwealth Court's August 29, 2012 en banc opinion (Banfield II).
On October 1, 2013, in a single-judge memorandum authored by Judge Leadbetter, the ...