Voter Action: Significant Court Victory in Pennsylvania

[eleny]

Voter Action email newsletter for April 13, 2007

Significant Court Victory in Pennsylvania
April 13, 2007
Dear Friends,

Thanks to Voter Action attorneys Marian Schneider, Michael Churchill of the Public Interest Law Center, and Mary Kohart and her team at Drinker Biddle and Reath!

Court Recognizes Pennsylvania Voters' Right to Reliable, Secure Voting Machines
A Pennsylvania court held late today that voters have a right under the commonweath's constitution to reliable and secure voting systems and can challenge the use of electronic voting machines "that provide no way for Electors to know whether their votes will be recognized" through voter verification or independent audit.
The ruling by the Commonweath Court allows the continuation of a suit filed last year by 26 individual Pennsylvania voters against the Secretary of State that challenged the certification of Direct Electronic Voting systems (DREs) used in 56 counties across the state.

"This is a great victory for Pennsylvania voters," said Mary Kohart, a partner at Drinker Biddle & Reath LLP, one of the lawyers representing the group of voters. The case, which ultimately seeks the decertification of the DREs, was also brought by the Public Interest Law Center of Philadelphia (PILCOP) and Chester County attorney Marian K. Schneider.

The 4-3 decision was sharply critical of the Pennsylvania Secretary of State's actions in certifying the DREs. Judge Rochelle Friedman, who authored the majority opinion, noted the certification was the result of "deficient examination criteria" which "do not approximate those that are customary in the information technology industry for systems that require a high level of security."

"Because Electors have no way of knowing whether their votes will be honestly counted by DREs that are not reliable or secure and that provide no means for vote verification or vote audit," the voters sufficiently raised a violation of the Pennsylvania constitution in their suit, the court declared.

"Across the country, both state legislatures and Congress are realizing that DRE voting systems cannot be trusted," said Michael Churchill, a lawyer with PILCOP. "More and more states are requiring optical scan paper ballots that voters mark directly or through a ballot-marking device."

Procedurally, the court's decision overruled the Secretary of State's 16 preliminary objections against the voter's August 2006 complaint. The objections claimed that the voters had no legal right to proceed with their case and no legal right to obtain the relief that they sought.

In the voters' complaint, they alleged that the DREs failed during elections in Pennsylvania and in other states by losing votes, registering votes for one candidate when the voter was attempting to vote for another candidate; causing high "undervote" rates; failing to register votes when the ballot contained only one question; counting votes twice; failing to print "zero tapes" to demonstrate that no lawful votes were stored on the machine prior to the election; printing "zero tapes" after votes had been cast; reporting phantom votes and other irregularities.

Schneider noted that last fall's elections across the country showed the unreliability of the machines. "The 2006 elections demonstrated that DREs repeatedly failed by breaking down, switching votes, losing votes and not providing the security necessary for a functional democracy," she said.

Holly Jacobson, co-director at Voter Action, noted that good alternatives exist to the unreliable electronic voting machines: "Paper balloting, with ballot marking devices for the disabled, is a more secure and accountable option, which is why states like Michigan and New Mexico and others, in addition to hundreds of counties around the country, switched in time for last November's elections."

Kohart noted that in light of today's court ruling so clearly establishing the law, "We hope that the Secretary will think about a quick settlement of this case."

Drinker Biddle & Reath LLP, a full-service national law firm established in 1849, recently announced its combination with the more than 170 lawyers at Chicago-based Gardner Carton & Douglas. The merger, effective in January 2007, created a firm of more than 630 lawyers in 12 offices nationwide. For more information, please visit .


Yours truly,

Holly Jacobson
Co-director,
Voter Action
206 723 1941
www.voteraction.org

[happyslug]

1. Here is the opinion

http://www.courts.state.pa.us/OpPosting/CWealth/out/442MD06_4-12-07.pdf

Remember this ruling on the Preliminary Objection (POs) filed by the State in the nature of a "Demurrer". Under a Demurrer the court MUST assume that the Petitioner would prevail on all issues of fact, nevertheless the Defendant would still prevail. i.e. even if it is found that the State did NOT do its job, the state could still win for it is up to the state alone to decide the merit of the case. Thus the wording in this opinion, it assumes the Petitioner will prevail on the facts, but the Court ruled if that happens the Petitioners win not the state.

Now, this means this case will go to trial on the facts of how bad are these machines (Through the state may appear to the Pennsylvania State Supreme Court, but knowing our Supreme Court those cowards will avoid taking this case). Please note, the Pennsylvania Supreme Court is like the US Supreme Court, it can take what appeals it wants to and refuse all other cases, this if the state should appear to the Pennsylvania Supreme Court I doubt the Court will take the case.

[Peace Patriot]

2. Yes! Yes! Yes! Yes! YES! This is wonderful news!

Pennsylvania was one of the first states to take up the election reform fight. I remember the first challenges and the first legal moves. PA's constitution has a provision that voters have to approve new voting systems. And the Bushite electronic voting corporations in cahoots with the Bushite AG were trying to knock that down, and force Bushite "trade secret" vote counting on the state. And people were fighting back, defending their law and the principle of transparent, verifiable vote counting. It was--is--a critically important states' rights battle in the election reform movement.

But I had lost track of how it was going. There are so many election reform stories to keep up with now. This started--or I first picked up on it--way back in 2004, I believe. I am so glad that those 26 individual PA voters who initiated this fight stuck with it, and were able to work with excellent lawyers to win it. Hoorah!

The DREs are going down! Wonder of wonders! Next: we have to get rid of "trade secret," proprietary programming code altogether. The optiscan systems aren't really that much better. The optiscans and the central tabulators still contain the secret code--and required audits are extremely inadequate to catch fraud, and recounts are difficult, expensive and rare. If we had a 100% audit--that is, a 100% handcount of the ballots against the machine totals, there would be no problem. Or even a 55% audit, like they have in Venezuela. These Bushite-controlled electronic voting systems should never have been used without a substantial audit, to begin with. It is outrageous that they were. And now we're stuck with these machines because of the corruption wrought by their high cost. Billions of dollars are involved, and out of control, lavish lobbying.

But that doesn't take away from this momentous victory--a court ruling in favor of VERIFIABILITY as a principle. We have a lot of fights to fight, to restore a decent election system--getting rid of Diebold and ES&S altogether is just one of them. I am so proud of these citizens in PA. They confirm my longstanding faith in the American people. We WILL get our country. And these folks know precisely how it was taken away, and never lost their amazing focus on what to do about it.

Congratulations, friends! Congratulations! You are all heroes!

[Fly by night]

3. I know demodonkey contributed to this victory in PA

Way to go, Mary Beth. Now if we can just import some common sense and patriotism from PA, NM, MI and other states to this Orange State, we'll save our democracy here also.

[demodonkey]

8. Thanks, Fly By Night!

Our first Pennsylvania lawsuit, Kuznik v. Westmoreland County Board of Commissioners won in Commonwealth Court but was tossed with less than 24 hours deliberation by the PA Supreme Court.

It's great that this latest ruling means that these other citizens will have their day in Commonwealth Court, but I have serious concerns as to what the PA Supremes will do to this case. Maybe (let's hope) things will be different this time -- or legislation will be in place to change things -- soon!

Marybeth (demodonkey)

From http://www.VotePA.us

3-2-06 DARK DAY FOR DEMOCRACY AND OUR RIGHT TO DECIDE HOW WE VOTE -- TOSSED ASIDE BY PA SUPREME COURT

With less than 24 hours deliberation, the Pennsylvania Supreme Court ruled Thursday against Westmoreland County citizens who were suing to preserve their state constitutional right to choose their voting system by referendum. The state Supreme Court decision vacated Commonwealth Court Judge Dan Pellegrini's order for injunctive relief and reversed the portions of his order granting relief on the portions of the order granting relief on the action for Declaratory Judgement and the Complaint in Equity. The order, which consisted of three short sentences, basically paved the way for Pennsylvania counties to move forward and buy the paperless, unverifiable voting machines that threaten the core of our Democracy.

Shockingly, Governor Ed Rendell (who to his credit has gone on record saying that Pennsylvania will have a paper ballot, and has taken other actions to protect our vote) issued a press release COMMENDING the court for this action that apparently tossed aside our State Constitution. And this same week, his Secretary of State, Pedro Cortés drew national attention when he made a public statement dismissing the need for the protection of Voter-Verified Paper Records on Pennsylvania voting systems.

Shame on you, Governor Rendell and Secretary Cortés! Please take the next step to protect our vote NOW -- call for public hearings on Voter-Verified Paper Records (as recommended nearly a year ago by your Governor's Task Force on Election Reform) and support the passage of SB 977 / HB 2000 to protect our vote with voter-verified paper records on all voting systems and routine audits of all elections.

Between the PA Supreme Court, the Governor, the Secretary, and the federal government, who is bowing to what kind of political pressure here?

The Supreme Court's order said, "Opinion to Follow." Given the speed that the court deliberated and reversed the decision that favored the Westmoreland County citizens, we hope that likewise this document will be posted soon. The citizens deserve to see that opinion and to know why their rights under our State Constitution appear to have been tossed away.

TIMELINE OF THE WESTMORELAND COUNTY LAWSUIT HERE

PS -- The PA Supreme Court written opinion explaining its decision in Kuznik v. Westmoreland was posted about four months later, and was really STUPID. I will post it later if I get a chance.

[Kurovski]

4. K&R. )nt(

[bleever]

5. K&R.

Thanks!

[Joanne98]

6. God Bless the Commonwealth of Pennsylvania!

[texpatriot2004]

7. Great news, unfortunately it is too late to rec this, so I will kick it

instead.