voteraction
http://www.voteraction.org/node/377HARRISBURG, PA – Pennsylvania voters seeking to block the purchase of new electronic voting machines won an initial round late last week against the Pennsylvania Secretary of State when a state court judge lifted the stay on the voters’ pending case and ordered a full hearing on their emergency motion. The hearing will commence this Friday, February 8, at 9 am, at the Commonwealth Court of Pennsylvania in Harrisburg.
The voters’ motion, filed on January 25, 2008, argues that the purchase of new electronic voting machines would violate Pennsylvania election code which requires all voting systems produce a “permanent physical record.” Three Pennsylvania counties, Lackawanna, Northampton and Wayne, must replace the electronic voting machines they were using, the AVS WINVote machines, because the Secretary recently decertified them for use in Pennsylvania after it was discovered the vendor had misrepresented the systems to testing authorities. The motion for preliminary injunction was filed in Commonwealth Court as part of a pending lawsuit, Banfield v. Cortes, originally filed in August 2006, which names Secretary of State Pedro Cortes as defendant and challenges the legality of all electronic and touchscreen voting based on the Pennsylvania election code.
The petitioners are seeking to prevent the future purchase of the six models of electronic voting systems at issue in Banfield v. Cortes until the legal challenges raised in the suit are decided. The six voting systems record voter’s choices directly to the computer; according to the suit, such “direct recording electronic” (DREs) voting systems do not create a permanent physical record of each vote and are not capable of a meaningful audit, both requirements of the Pennsylvania Election Code.
In April 2007, the Commonwealth Court of Pennsylvania, in a significant victory for the petitioners, held that voters have a right under the Pennsylvania Constitution to reliable and secure voting systems and may 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. Following that ruling, Secretary Cortes filed a petition before the Pennsylvania Supreme Court seeking to appeal the decision. That petition remains pending before the state’s highest court. The Commonwealth Court has not stayed any further proceedings in the case in the midst of the pending petition before the Pennsylvania Supreme Court.
The AVS WINVote was decertified after it was discovered that the system violated several provisions of the Pennsylvania Election Code. The Secretary has told the three counties that it will reimburse them up to their original purchase price of the AVS WINVote system, approximately $4 million. If the Secretary continues to allow the these counties to purchase one of the DRE systems at issue in the lawsuit, the counties may have to discard yet a second electronic voting system after a trial on the merits in this case. “This motion aims to prevent the wasteful expenditure of taxpayer dollars on voting systems that do not have any way of verifying the votes cast on them,” said Marian K. Schneider, a Berwyn lawyer who represents the petitioners.
Northampton County has already announced that it plans on purchasing new DRE voting machines from the Sequoia Voting Systems Company for use in the upcoming primary elections in April. Wayne County, in response to the voters’ recently-filed motion, has announced that it will replace its DRE voting machines with voter-marked paper ballots using optical scan machines and non-tabulating ballot marking devices, a system the petitioners argue meets Pennsylvania election code. Lackawanna County has yet to indicate its plans for a voting system for the April primary.
The voters assert that the Secretary’s process of examining voting systems and approving them for use in Pennsylvania is inadequate because it fails to detect flaws. The original complaint catalogues numerous security and accuracy problems as well as violations of the Pennsylvania Election Code and the Pennsylvania Constitution. In recent months, the states of California and Ohio subjected their DRE voting systems to rigorous and thorough testing by outside computer science and electronic voting experts. In both states, the testing teams found severe security, reliability and workmanship defects. As a result, California has already decertified its DREs and Ohio’s Secretary of State has recommended that only paper ballots be used in the upcoming elections.
“The California Top to Bottom Review and the Ohio EVEREST report conclusively destroy the myth spread by voting system vendors that their systems have undergone thorough and painstaking testing,” said Douglas W. Jones, Associate Professor of Computer Science at the University of Iowa and a nationally known expert in electronic voting systems. “The truth is that seriously defective voting systems have remained in the marketplace for more than a decade.” Dr. Jones is serving as an expert witness in the case.
Dr. Dan Lopresti, Associate Professor of Computer Science at Lehigh University, is also serving as an expert witness for petitioners and agrees that the Secretary’s certification process is inadequate and that the DRE systems have security vulnerabilities. “Fortunately we have a readily available and cost effective alternative system already certified and in use in several Pennsylvania Counties. Voter-marked paper ballots which are optically scanned and manually re-countable provide an acceptably secure alternative, provided an effective audit is performed after the election,” Lopresti said.
“We shouldn’t be forced to trust unknown programmers or anyone else who might have access to the machines. With paper ballots, we can verify the results. Without paper, it’s faith-based voting,” said Alan Brau, one of the voter-plaintiffs in the lawsuit and a resident of Northampton County.
The suit is brought with the support of Voter Action.org, a national non-profit organization focused on election integrity issues, and with the pro bono legal services of Mary Kohart of Drinker Biddle & Reath, Michael Churchill of the Public Interest Law Center of Philadelphia, and Marian Schneider, a lawyer from Berwyn, Pa. “Voter Action is pleased to support this important lawsuit representing the interests of the voters of Pennsylvania. Across the country, more and more states are finding that electronic voting systems are too unreliable to determine our elections,” said Holly Jacobson, Director of Voter Action.
The voters’ expert witnesses, Professors Jones and Lopresti, will testify at the court hearing on the voters’ emergency motion. The court has scheduled three days for the hearing, starting this Friday, February 8, and continuing on Monday, February 25. Secretary Cortes had sought to prevent this hearing, arguing that the stay on the case should remain in place until the Pennsylvania Supreme Court rules on his petition. On Friday, February 1, Senior Judge Barry F. Feudale of the Commonwealth Court, rejected the Secretary’s arguments in a telephonic hearing and lifted the stay, allowing for the hearing on the voters’ emergency motion to proceed. The hearing will commence at 9 am this Friday in Courtroom I, 5th Floor, Irving Office Building in Harrisburg.
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