County of Fulton v. Sec'y. of the Com. ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
County of Fulton, Fulton County Board :
of Elections, Stuart L. Ulsh, in his :
official capacity as County :
Commissioner of Fulton County and :
in his capacity as a resident, taxpayer :
and elector in Fulton County, and Randy :
H. Bunch, in his official capacity as :
County Commissioner of Fulton County :
and in his capacity as a resident, :
taxpayer and elector of Fulton County, :
Petitioners :
v. : No. 277 M.D. 2021
: Argued: March 10, 2022
Secretary of the Commonwealth, :
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE LORI A. DUMAS, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION
BY SENIOR JUDGE LEAVITT FILED: May 23, 2022
The County of Fulton, the Fulton County Board of Elections, Stuart L.
Ulsh (county commissioner, county board of elections commissioner, resident,
taxpayer and elector), and Randy H. Bunch (county commissioner, county board of
elections commissioner, resident, taxpayer and elector) (collectively, County) have
filed an Amended Petition for Review (Amended Petition) against the Secretary of
the Commonwealth (Secretary) to challenge her “decertification” of two electronic
voting devices that the County has leased. The Secretary’s stated reason for this
action was that the County used a third-party consultant to inspect its electronic
voting devices as part of the County’s inquiry into its conduct of the 2020 General
Election.
The County’s Amended Petition has five counts. Count I asserts that
the Secretary unlawfully decertified the County’s two electronic voting devices.
Count II asserts that the Pennsylvania Election Code (Election Code)1 expressly
authorized the County to inspect its electronic voting devices as part of its statutory
duty to ensure the safe and honest conduct of elections in the County. Count III
asserts that a directive of the Secretary, which, inter alia, prohibits all county boards
of elections from inspecting their electronic voting devices with the assistance of a
third-party consultant, violates Section 302 of the Election Code, 25 P.S. §2642.
Count IV asserts that the Secretary unlawfully withheld funding from the County
that it needs to acquire replacement electronic voting devices. Count V seeks
injunctive relief to restore the status quo that existed prior to the Secretary’s unlawful
decertification of the County’s electronic voting devices.
In response, the Secretary has filed a preliminary objection in the nature
of a demurrer to Count III of the Amended Petition, i.e., the challenge to the
Secretary’s directive prohibiting all county boards of elections from inspecting their
electronic voting devices with the assistance of third-party consultants. The
Secretary argues that Count III fails to state a claim because she had express statutory
authority to issue this directive, and, further, the Amended Petition does not allege
that she abused her discretion in issuing the challenged directive.
For the reasons set forth herein, we overrule the Secretary’s demurrer
to Count III. It cannot be said with certainty that the law will not allow the County
to prevail on this claim.
1
Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §§2600-3591.
2
Background
In 2019, the Secretary2 approved the Democracy Suite 5.5A electronic
voting system produced by Dominion Voting Systems, Inc. (Dominion) for use in
Pennsylvania. Amended Petition ¶14. In accordance with this approval, the County
leased two Democracy Suite 5.5A electronic voting devices3 from Dominion and
used them, inter alia, for the 2020 General Election. Id. ¶¶19-20. Shortly after the
2020 General Election, the County contracted with Wake Technology Services Inc.
(Wake TSI), “a private technology firm specializing in cyber security including in
the field of voting technology” that “has extensive experience in working with
governmental entities such as the United States (U.S.) Department of State and the
Pennsylvania System of Higher Education.” Id. ¶29. The County engaged Wake
TSI to assess the County’s conduct of the 2020 General Election.
In September of 2016, the Secretary issued the “Guidance on Electronic
Voting System Preparation and Security” (2016 Guidance) that acknowledges the
“use of third-party vendors for electronic voting system preparation and security” by
counties and “strongly recommends” that a county’s vendor follow the procedures
set forth in the 2016 Guidance. Amended Petition ¶¶23-24. The 2016 Guidance
2
Kathy Boockvar served as Secretary of the Commonwealth in 2019, when the certification first
occurred. On February 5, 2021, Veronica Degraffenreid was appointed Acting Secretary of the
Commonwealth. Leigh M. Chapman, the current Acting Secretary, was appointed February 8,
2022.
3
The Amended Petition refers to the County’s two electronic voting devices at issue in this case
as “systems,” Amended Petition ¶¶9, 19-20, 73, and also “machines,” id. ¶48, and at 14, Wherefore
Clause & n.1; see also id. ¶65 (“system and machine”). This opinion uses the word “system” to
mean the Democracy Suite 5.5A technology, or other electronic voting technology, that was
approved by the Secretary for use across the Commonwealth, and it uses the word “device” to
mean particular equipment produced by a vendor of an electronic voting system certified by the
Secretary. This usage is consistent with the terms “Electronic voting system” and “Voting device,”
which are terms defined in Section 1101-A of the Election Code, added by the Act of July 11,
1980, P.L. 600, 25 P.S. §3031.1.
3
specifically addresses “file transfers.” Id. ¶25. On October 13, 2020, the Secretary
issued another “Guidance on Electronic Voting System Preparation and Security”
(2020 Guidance) that confirmed and updated the 2016 Guidance. Id. ¶27. In the
course of Wake TSI’s assessment, the County followed the 2016 and 2020
Guidances and “ensured that proper chain of custody of the equipment was
maintained at all times through the presence of Fulton County’s Election Director
(Commissioners and other staff were also present), who was the sole individual to
remove or replace ballots in the ballot carts.” Id. ¶31. Wake TSI conducted its
assessment “in a manner that was bi[]partisan and transparent.” Id. ¶39.
Wake TSI’s “assessment of Fulton County’s election systems consisted
of a review of operating and application system file dates, operating system and
application log files, ballot images, and related files.” Amended Petition ¶30. On
February 29, 2021, Wake TSI issued a report concluding that the County conducted
the 2020 General Election “in a diligent and effective manner and followed the
directions of the Commonwealth[.]” Id. ¶32.
On July 8, 2021, several months after Wake TSI’s inspection and report
to the County, the Secretary issued “Directive 1 of 2021,” which states, in relevant
part, as follows:
The following Directive is issued July 8, 2021, by the Secretary
of the Commonwealth pursuant to authority contained at Section
1105-A(a) of the Pennsylvania Election Code, [added by the Act
of July 11, 1980, P.L. 600,] 25 P.S. [§]3031.5(a).
1. Background. The Secretary of the Commonwealth
(“Secretary”) has duties pursuant to Article XI-A of the
Pennsylvania Election Code … to examine, evaluate and certify
electronic voting systems. These reviews include verifying that
the voting system conforms to federal and state law and any
regulations or standards regarding confidentiality, security,
accuracy, safety, reliability, usability, accessibility, durability,
4
resiliency, and auditability. This is in addition to the Federal
testing and certification undertaken by the U.S. Election
Assistance Commission.
***
2. Third-Party Access to Electronic Voting Systems. Demands
have been made to allow third-party entities not directly involved
with the conduct of elections to have access to electronic voting
systems, specifically to review and copy the internal electronic,
software, mechanical, logic, and related components of such
systems…. Such access by third parties undermines chain of
custody requirements and strict access limitations necessary to
prevent both intentional and inadvertent tampering with
electronic voting systems. It also jeopardizes the security and
integrity of those systems and will negate the ability of electronic
voting system vendors to affirmatively state that such systems
continue to meet Commonwealth security standards, are
validated as not posing security risks, and are able to be certified
to perform as designed by the electronic voting system vendor
and as certified by both the U.S. Election Assistance
Commission and the Department of State.
3. Limits on Third-Party Access to Electronic Voting Systems.
The following directive is effective immediately:
a. County Boards of Elections shall not provide
physical, electronic, or internal access to third
parties seeking to copy and/or conduct an
examination of state-certified electronic voting
systems, or any components of such systems,
including but not limited to: election management
software and systems, tabulators, scanners,
counters, automatic tabulating equipment, voting
devices, servers, ballot marking devices, paper
ballot or ballot card printers, portable memory
media devices (thumb drives, flash drives and the
like), and any other hardware, software or devices
being used as part of the election management
system.
5
b. If access described in Paragraph 3.a. occurs,
those pieces of voting equipment will be considered
no longer secure or reliable to use in subsequent
elections. As a result, the Department of State will
withdraw the certification or use authority for those
pieces of the county voting system. This directive is
specific to the impacted pieces of the county
electronic voting system and does not impact the
certification of the underlying voting system nor
does it impact other pieces of a county’s voting
system that has not been accessed/copied by a third-
party.
c. The Commonwealth of Pennsylvania will not
reimburse any cost of replacement voting
equipment for which certification or use authority
has been withdrawn pursuant to this directive.
Original Petition for Review, Ex. F (emphasis added).4
On July 20, 2021, shortly after the issuance of Directive 1 of 2021, the
Secretary notified the County by letter that, effective immediately, she was
“decertifying” the County’s two Democracy Suite 5.5A electronic voting devices.
Amended Petition ¶37. The Secretary’s letter stated that this decertification was
prompted by Wake TSI’s examination of the County’s voting devices, which had
“compromised” the two devices. Id. The County contends that the Secretary’s
decertification was “arbitrary, capricious, and an error of law” because she took this
action without a reexamination of the two voting devices to determine whether they
4
The Amended Petition states that it attaches Directive 1 of 2021 as “Exhibit F,” but only the
original Petition for Review contains Exhibit F. Directive 1 of 2021 is also available on the
Department of State’s website. See SECRETARY OF THE COMMONWEALTH, DIRECTIVE
CONCERNING ACCESS TO ELECTRONIC VOTING SYSTEMS, INCLUDING BUT NOT LIMITED TO THE
IMAGING OF SOFTWARE AND MEMORY FILES, ACCESS TO RELATED INTERNAL COMPONENTS, AND
THE CONSEQUENCES TO COUNTY BOARDS OF ALLOWING SUCH ACCESS (July 8, 2021),
https://www.dos.pa.gov/VotingElections/OtherServicesEvents/Documents/Directive-1-of-
2021_Access-to-Electronic-Voting-Systems_7-8-2021.pdf (last visited May 20, 2022).
6
“continued to meet the requirements of the Election Code.” Id. ¶¶47-49. Had she
done so, she “would have found that the security and other requirements” of the law
continue to be satisfied “and that such existing machines could readily be used by
Fulton County.” Id. ¶48.
The Amended Petition states that in her examination of Dominion’s
system pursuant to Section 1105-A(a) of the Election Code prior to approval of the
system, “Respondent Secretary” used a vendor, Center for Civic Design, “to
examine the Democracy Suite 5.5A voting system in 2019, [which vendor] does not
appear on the EAC’s [(U.S. Election Assistance Commission)] directory of
accredited laboratories.” Amended Petition ¶63.
The County challenged the Secretary’s actions in a Petition for Review
filed on August 18, 2021. It then filed the Amended Petition on September 17,
2021.5 On October 18, 2021, the Secretary filed a demurrer to Count III of the
Amended Petition.
In her demurrer, the Secretary asserts that she took action against the
County because it “permitted a third party, a private company called Wake TSI with
5
Ancillary to this proceeding, the Secretary filed an emergency application to prevent spoliation
of evidence after the County granted a request by a committee of the Pennsylvania State Senate
for the County’s 2020 election data. Dominion then sought to intervene, alleging that any
inspection by the Senate committee’s contractor, Envoy Sage, LLC, would violate the County’s
contract with Dominion. The intervention petition did not include Dominion’s proposed pleading
or adopt by reference the pleading already filed by the petitioner or by the respondent. See
Pa.R.Civ.P. 2328(a). This Court denied Dominion’s intervention petition for the stated reason that
a ruling on the County’s challenge to the Secretary’s decertification of the County’s two voting
devices, without a reexamination or a hearing, would have no impact on Dominion’s common law
contract claims. The Pennsylvania Supreme Court stayed the inspection by Envoy Sage pending
the Secretary’s appeal of this Court’s interlocutory order denying the Secretary’s request for a
protective order. The Supreme Court also reversed this Court’s denial of Dominion’s intervention
petition.
7
no election-related experience, to access and take images of key components of
Fulton County’s certified electronic voting equipment, thereby compromising the
security of the equipment.” Preliminary Objections ¶6. Because of “this
unsanctioned breach of basic security protocols,” the Secretary “‘had no choice but
to decertify the use’ of Fulton County’s compromised electronic voting equipment.”
Id. ¶7 (quotation from Secretary’s letter of July 20, 2021).
With respect to Directive 1 of 2021, the Secretary asserts that it was
expressly authorized by Section 1105-A(a) of the Election Code, 25 P.S. §3031.5(a).
Relying on the Pennsylvania Supreme Court’s decision in Banfield v. Cortés, 110
A.3d 155 (Pa. 2015), the Secretary argues that she has the responsibility to regulate
the counties in their inspection of electronic voting systems, and, further, her
directives issued for this purpose cannot be set aside unless fraudulent or arbitrary.
The County responds that the Secretary’s prohibition against a county’s
inspection of its electronic voting devices cannot be reconciled with Section 302(d)
and (g) of the Election Code, which obligates county boards of elections to appoint
“their own” “machine inspectors” to “inspect systematically and thoroughly the
conduct of primaries and elections.” 25 P.S. §2642(d), (g). The County rejects the
Secretary’s claim that Section 1105-A(a) effected an implied repeal of the County’s
duties and powers under Section 302 of the Election Code.
We begin with a review of the applicable provisions of the Election
Code and the relevant case law precedent.
8
Election Code Provisions
a. Article XI-A of the Election Code
Section 1105-A of the Election Code addresses the qualification of
electronic voting systems for use in Pennsylvania. It states in its entirety as follows:
(a) Any person or corporation owning, manufacturing or selling,
or being interested in the manufacture or sale of, any electronic
voting system, may request the Secretary of the Commonwealth
to examine such system if the voting system has been examined
and approved by a federally recognized independent testing
authority and if it meets any voting system performance and test
standards established by the Federal Government. The costs of
the examination shall be paid by the person requesting the
examination in an amount set by the Secretary of the
Commonwealth. Any ten or more persons, being qualified
registered electors of this Commonwealth, may, at any time,
request the Secretary of the Commonwealth to reexamine any
electronic voting system theretofore examined and approved by
him. Before any reexamination, the person, persons, or
corporation, requesting such reexamination, shall pay to the
Treasurer of the Commonwealth a reexamination fee of four
hundred fifty dollars ($450). The Secretary of the
Commonwealth may, at any time, in his discretion, reexamine
any such system therefore examined and approved by him. The
Secretary of the Commonwealth may issue directives or
instructions for implementation of electronic voting procedures
and for the operation of electronic voting systems.
(b) Upon receipt of a request for examination or reexamination
of an electronic voting system as herein provided for or in the
event he determines to reexamine any such system, the Secretary
of the Commonwealth shall examine the electronic voting system
and shall make and file in his office his report, attested by his
signature and the seal of his office, stating whether, in his
opinion, the system so examined can be safely used by voters at
elections as provided in this act and meets all of the requirements
9
hereinafter set forth.[6] If his report states that the system can be
so used and meets all such requirements, such system shall be
deemed approved and may be adopted for use at elections, as
herein provided. With respect to any electronic voting system
approved for use in this Commonwealth by the secretary, the
report of the secretary shall specify the capacity of the
components of that system, the number of voters who may
reasonably be accommodated by the voting devices and
automatic tabulating equipment which comprise such system and
the number of clerks and machine inspectors, if any, required
based on the number of registered electors in any election district
in which the voting system is to be used, such specifications
being based upon the secretary’s examination of the system. Any
county which thereafter may adopt any such approved system
shall provide the components of such system in a number no less
than that sufficient to accommodate the voters of that county or
municipality in accordance with the minimum capacity standards
so prescribed by the secretary. The county board shall comply
with the requirements for the use of the electronic voting system
as set forth in the report by the Secretary of the Commonwealth.
(c) No electronic voting system not so approved shall be used at
any election, and if, upon the reexamination of any such system
previously approved, it shall appear that the system so
reexamined can no longer be used safely by voters at elections as
provided in this act or does not meet the requirements hereinafter
set forth, the approval of that system shall forthwith be revoked
by the Secretary of the Commonwealth, and that system shall not
thereafter be used or purchased for use in this Commonwealth.
(d) When an electronic voting system has been so approved, no
improvement or change that does not impair its accuracy,
efficiency or capacity or its compliance with the requirements
hereinafter set forth, shall render necessary the reexamination or
reapproval of such system.
(e) Neither the Secretary of the Commonwealth nor any member
of a county board of elections shall have any pecuniary interest
6
Section 1107-A of the Election Code, added by the Act of July 11, 1980, P.L. 600, 25 P.S.
§3031.7, sets forth requirements for electronic voting systems.
10
in any electronic voting system or in any of the components
thereof, or in the design, manufacture or sale thereof.
25 P.S. §3031.5 (emphasis added). Each subsection relates to a separate aspect of
the Secretary’s qualification of electronic voting systems.
Section 1105-A(a) governs the Secretary’s examination and
reexamination of electronic voting systems and the procedures therefor.7
Specifically, the Secretary must examine any electronic voting system upon the
request of “[a]ny person or corporation” that manufactures or sells electronic voting
systems, i.e., vendors. 25 P.S. §3031.5(a). To make a request, the applicant vendor’s
system must satisfy “any system performance and test standards established by the
Federal Government.” Id. The applicant vendor must pay for the Secretary’s
examination, and this examination is required before any electronic voting system
can be approved for use in Pennsylvania. In addition, subsection (a) authorizes 10
or more “qualified registered electors of this Commonwealth” to request a
reexamination upon payment of a $450 fee. Id. In connection with either an
examination or reexamination, the Secretary may “issue directives or instructions
for implementation of electronic voting procedures and for the operation of
electronic voting systems.” Id. (emphasis added).
The legislature chose the word “directive” as opposed to the word
“regulation.” Historically, “management directives,” along with administrative
7
There is nothing new about the Secretary’s examination or reexamination of voting systems.
Section 1105-A (within Article XI-A) is patterned on Section 1106 (within Article XI) of the
Election Code, 25 P.S. §3006, which governs the examination of voting machines and dates back
to 1937. Article XI-A governs the examination of electronic voting systems and was added to the
Election Code in 1980. The two articles are similar in structure and content, but they differ in
terminology. For example, Article XI refers to “voting machines” throughout, whereas Article
XI-A defines and uses “electronic voting systems” and “voting devices.”
11
circulars and procedural manuals, are used by the Governor to manage executive
branch agencies and their employees. See Cutler v. State Civil Service Commission
(Office of Administration), 924 A.2d 706, 710-12 (Pa. Cmwlth. 2007). We have
explained:
A management directive is not an administrative regulation with
the force and effect of law.[] See Tire Jockey Service, Inc. v.
Department of Environmental Protection, [] 915 A.2d 1165,
1186 ([Pa. ]2007) (explaining that an agency’s duly promulgated
legislative-type regulation “is valid and binding upon courts as a
statute so long as it is (a) adopted within the agency’s granted
power, (b) issued pursuant to proper procedure, and (c)
reasonable[]”). A management directive is a tool for managing
people in the executive branch of state government. [] It is
important to consider the differences between an administrative
regulation and a management directive.
Cutler, 924 A.2d at 711-12 (footnotes omitted). See also Shapp v. Butera, 348 A.2d
910, 913 (Pa. Cmwlth. 1975) (explaining that a gubernatorial directive “intended for
communication with subordinate officials . . . for the execution of the duties of the
Executive Branch of government” is non-justiciable and not enforceable by court
order).
Notably, an agency regulation, regardless of its title, must be
promulgated in accordance with “the framework of laws governing agency
rulemaking in Pennsylvania.” Corman v. Acting Secretary of Pennsylvania
Department of Health, 266 A.3d 452, 486 (Pa. 2021). In Newport Homes, Inc. v.
Kassab, 332 A.2d 568, 575 (Pa. Cmwlth. 1975), this Court held that “[h]aving failed
to comply with the Commonwealth Documents Law,[8] the ‘final directive’ issued
8
Act of July 31, 1968, P.L. 769, as amended, 45 P.S. §§1102-1602, 45 Pa. C.S. §§501-907.
12
by PennDOT[9] is a nullity.” In Corman, the Supreme Court considered a state
agency order to every school district in Pennsylvania to require all persons in a
school (parents, teachers, students) to wear a mask to control the spread of COVID-
19. The Acting Secretary of Health asserted that because she was authorized to issue
this order under the applicable disease control statute, the order was exempt from
laws governing an agency’s promulgation of regulations. The Supreme Court
rejected this argument, explaining as follows:
[A]bsent a gubernatorial disaster emergency declaration
suspending the framework of laws governing agency rulemaking
in Pennsylvania, the Department [of Health] was obligated to
follow the procedures set forth in the Regulatory Review Act,[10]
the Commonwealth Documents Law, and the Commonwealth
Attorneys Act[11] before promulgating a new disease control
measure with the force of law.[] Because the Secretary
circumvented that process, her Order was void ab initio.
Corman, 266 A.3d at 486-87 (emphasis added and footnote omitted).
After an examination of an electronic voting system conducted under
Section 1105-A(a) of the Election Code, the Secretary must file a “report” in her
office stating that the examined system “can be safely used by voters.” Section
1105-A(b) of the Election Code, 25 P.S. §3031.5(b). Further, the Secretary’s report
“shall specify the capacity of the components of that system, the number of voters
who may reasonably be accommodated by the voting devices and automatic
tabulating equipment which comprise such system and the number of clerks and
machine inspectors, if any, required based on the number of registered electors in
any election district in which the voting system is to be used[.]” Id. (emphasis
9
PennDOT is an acronym for the Pennsylvania Department of Transportation.
10
Act of June 25, 1982, P.L. 633, as amended, 71 P.S. §§745.1-745.15.
11
Act of October 15, 1980, P.L. 950, as amended, 71 P.S. §§732-101–732-506.
13
added). In choosing an approved electronic voting system, the county boards of
elections must be mindful of the “minimum capacity standards so prescribed by the
[S]ecretary” and purchase “the components of such system in a number no less than
that sufficient to accommodate the voters of that county.” Id. Likewise, county
boards must employ the proper number of “clerks and machine inspectors” based on
the number of electors in the county. Id.
Where a reexamination by the Secretary shows that a system can no
longer be safely used at an election, “the approval of that system shall forthwith be
revoked.” Section 1105-A(c) of the Election Code, 25 P.S. §3031.5(c). Approval
does not place an electronic voting system in amber. A “change” to a system “that
does not impair its accuracy, efficiency or capacity” does not require a
“reexamination or reapproval of such system.” Section 1105-A(d) of the Election
Code, 25 P.S. §3031.5(d). Subsection (d) does not specify the agent of this change
or its occasion.
The Election Code defines the terms “electronic voting system” and
“voting device” for purposes of Article XI-A of the Election Code as follows:
“Electronic voting system” means a system in which one or
more voting devices are used to permit the registering or
recording of votes and in which such votes are computed and
tabulated by automatic tabulating equipment. The system shall
provide for a permanent physical record of each vote cast.
***
“Voting device” means either an apparatus in which paper
ballots or ballot cards are used in connection with an implement
by which a voter registers his votes with ink or other substance
or by punching, or an apparatus by which such votes are
registered electronically, so that in either case the votes so
registered may be computed and tabulated by means of automatic
tabulating equipment.
14
Section 1101-A of the Election Code, 25 P.S. §3031.1 (emphasis added). Section
1105-A(a) uses the phrase “electronic voting systems,” but the phrase “voting
devices” does not appear.
b. Article III of the Election Code
Section 302 of the Election Code makes the county boards of elections
responsible for the honest, efficient and uniform conduct of elections. It states, in
relevant part, as follows:
The county boards of elections, within their respective counties,
shall exercise, in the manner provided by this act, all powers
granted to them by this act, and shall perform all the duties
imposed upon them by this act, which shall include the following:
(a) To investigate and report to the court of quarter
sessions their recommendations on all petitions
presented to the court by electors for the division,
redivision, alteration, change or consolidation of
election districts, and to present to the court
petitions for the division, redivision, alteration,
change or consolidation of election districts in
proper cases.
(b) To select and equip polling places that meet the
requirements of this act.
(c) To purchase, preserve, store and maintain
primary and election equipment of all kinds,
including voting booths, ballot boxes and voting
machines, and to procure ballots and all other
supplies for elections.
(d) To appoint their own employes, voting machine
custodians, and machine inspectors.
***
(f) To make and issue such rules, regulations and
instructions, not inconsistent with law, as they may
deem necessary for the guidance of voting machine
custodians, elections officers and electors.
15
(g) To instruct election officers in their duties,
calling them together in meeting whenever deemed
advisable, and to inspect systematically and
thoroughly the conduct of primaries and elections
in the several election districts of the county to the
end that primaries and elections may be honestly,
efficiently, and uniformly conducted.
***
(i) To investigate election frauds, irregularities and
violations of this act, and to report all suspicious
circumstances to the district attorney.
***
25 P.S. §2642(a)-(d), (f)-(g), and (i) (emphasis added).
In addition to making the county boards of elections responsible for the
conduct of honest elections, Section 302 gives them the means to carry out this
responsibility. The county boards of elections are empowered to purchase and
maintain “election equipment of all kinds” and “appoint their own … voting machine
custodians, and machine inspectors.” 25 P.S. §2642(c), (d). Incidental thereto, the
county boards are empowered to “make and issue such rules, regulations and
instructions, not inconsistent with law, as they may deem necessary for the guidance
of voting machine custodians, election officers and electors.” 25 P.S. §2642(f)
(emphasis added). The county boards are required to “investigate election frauds,
irregularities and violations of [the Election Code], and to report all suspicious
circumstances to the district attorney.” 25 P.S. §2642(i).
Section 302 imposes mandatory duties upon the county boards of
elections as well as discretionary authority and powers, such as the power to
promulgate regulations. In addition, county boards have been given the power to
issue subpoenas. See Section 304(a) of the Election Code, 25 P.S. §2644(a). The
16
Supreme Court has held that in their investigation of the conduct of elections, the
county boards of elections exercise quasi-judicial authority. Appeal of McCracken,
88 A.2d 787, 788 (Pa. 1952).
Analysis
In reviewing preliminary objections in the nature of a demurrer, this
Court “must accept as true all well[-]pleaded material allegations in the petition for
review, as well as all inferences reasonably deduced therefrom.” Buoncuore v.
Pennsylvania Game Commission, 830 A.2d 660, 661 (Pa. Cmwlth. 2003). We are
not required to accept as true “conclusions of law, unwarranted inferences from
facts, argumentative allegations, or expressions of opinion.” Id. For this Court to
sustain preliminary objections, “it must appear with certainty that the law will not
permit recovery[.]” McCord v. Pennsylvania Gaming Control Board, 9 A.3d 1216,
1218 n.3 (Pa. Cmwlth. 2010) (quoting Pennsylvania State Lodge, Fraternal Order
of Police v. Department of Conservation and Natural Resources, 909 A.2d 413, 415-
16 (Pa. Cmwlth. 2006)). Where there is any doubt, this Court will overrule the
preliminary objections. Fumo v. Hafer, 625 A.2d 733, 734 (Pa. Cmwlth. 1993).
The Secretary requests the Court to dismiss Count III, the County’s
challenge to Directive 1 of 2021. Noting that Section 1105-A(a) of the Election
Code authorizes the Secretary to issue “directives or instructions” for “the operation
of electronic voting systems,” the Secretary argues that Directive 1 of 2021 was
expressly authorized. 25 P.S. §3031.5(a). Further, because the Amended Petition
does not allege that Directive 1 of 2021 was issued fraudulently, in bad faith or
arbitrarily, the terms of Directive 1 of 2021 are unassailable. The Secretary argues
that as the Commonwealth’s chief election official, she has been empowered to
regulate, by directive, the county boards in the use of their voting devices, and these
17
directives are enforced by her power of “decertification.” Necessarily, she adds, her
authority over electronic voting systems includes individual electronic voting
devices.
The County rejects the Secretary’s expansive view of Section 1105-
A(a) of the Election Code. It acknowledges the Secretary’s responsibility to
examine and approve an electronic voting system before it can be used in
Pennsylvania but believes her responsibility ends there. At that point, the county
boards of elections become responsible. From the Secretary’s approved system list,
the county board makes a choice appropriate for the county’s voting population;
purchases the “components” of that chosen system; and uses those components on
election day and thereafter in any post-election inspections. Component security is
the county board’s duty. It is the county boards, not the Secretary, that must
“maintain primary and election equipment of all kinds” and appoint inspectors
thereof. Section 302(c) and (d) of the Election Code, 25 P.S. §2642(c), (d). Stated
otherwise, with respect to electronic voting systems, the Election Code vests the
Secretary with responsibility at the macro level and vests the county boards of
elections with responsibility at the micro level.
The County argues that Directive 1 of 2021 violates Section 302 of the
Election Code in multiple ways and was not authorized by Section 1105-A(a) of the
Election Code. Although Directive 1 of 2021 purports to authorize the Secretary to
decertify a county’s voting devices, Section 1105-A(a) relates to electronic voting
systems, not specific devices. In any case, under Section 1105-A(a), no
“decertification,” whether of a system or of a device, can be done until there is a
18
reexamination. Here, the Secretary did not reexamine the County’s two voting
devices before she decertified them.12
Here, both parties argue the merits of their respective actions, but these
arguments are premature. For purposes of the Secretary’s demurrer, it is irrelevant
whether she had good cause to issue Directive 1 of 2021 and whether it will improve
election security in Pennsylvania. Likewise, the statements in the Secretary’s
Preliminary Objections that Wake TSI had no election experience and that its
imaging compromised “the security of the equipment” are irrelevant to the
lawfulness of Directive 1. Preliminary Objections ¶6. These statements are also
inappropriate because they contradict the allegations in the Amended Petition that
Wake TSI was experienced, did not perform a “full technology forensic audit of the
operating system or the EMS [(Election Management System)]” and in no way
compromised the security of the County’s two voting devices. Amended Petition
¶68. Only the factual allegations in the Amended Petition can and will be
considered; they are binding on the Court in its analysis of the Secretary’s demurrer
to Count III. Buoncuore, 830 A.2d at 661. The Secretary’s contrary statements
belong in an answer and new matter; they have no place in a demurrer.
The Secretary bases her demurrer to Count III of the Amended Petition
largely upon the Supreme Court’s holding in Banfield, 110 A.3d 155. In Banfield,
24 qualified registered electors instituted a mandamus action against the Secretary
of the Commonwealth, requesting that the Secretary be ordered to revoke her
approval of direct recording electronic voting systems. The Supreme Court held that
the Secretary’s decision to approve an electronic voting system involved the exercise
of discretion and, as such, was beyond the reach of a writ of mandamus. In so
12
The County notes that, in any case, because only one voting device was ever used, her
decertification letter was overbroad in scope. Amended Petition ¶48, n.1.
19
holding, the Supreme Court observed that the Secretary is “Pennsylvania’s chief
election official.” Id. at 174. See also National Election Defense Coalition v.
Boockvar, 266 A.3d 76, 96-98 (Pa. Cmwlth. 2021) (overruling Secretary’s demurrer
to a challenge by electors to the Secretary’s refusal to disapprove an electronic voting
system).
Banfield did not concern “instructions or directives” issued under
Section 1105-A(a) of the Election Code. Rather, Banfield concerned a quasi-
adjudicatory decision with respect to a discrete electronic voting system. The
“fraudulent, in bad faith, an abuse of discretion or clearly arbitrary” standard was
recited in the context of a demurrer to a mandamus action. Banfield, 110 A.3d at
175. As the Supreme Court explained, “[w]here the action sought to be compelled
is discretionary, mandamus will not lie to control that discretionary act, ... but courts
will review the exercise of the actor’s discretion where it is arbitrary or fraudulently
exercised or is based upon a mistaken view of the law.” Id. (quoting Pennsylvania
State Association of County Commissioners v. Commonwealth, 681 A.2d 699, 701-
02 (Pa. 1996)). The Supreme Court’s passing description of the Secretary as
Pennsylvania’s “chief election official” is obiter dictum. Banfield, 110 A.3d at 174.
Regardless, this description does not answer the question of whether the Secretary
can supervise the county boards of elections in the way they perform their duties
under Section 302 of the Election Code. Banfield is inapposite.
Any statutory construction exercise begins with careful examination of
the words actually chosen by the legislature. See 1 Pa. C.S. §1921(b);
Commonwealth v. Shiffler, 879 A.2d 185, 189 (Pa. 2005) (“[T]he best indication of
legislative intent is the plain language of the statute.”) (quotation omitted). “In
ascertaining the plain meaning of statutory language, we consider it in context and
20
give words and phrases their ‘common and approved usage.’” In re Canvassing
Observation, 241 A.3d 339, 349 (Pa. 2020) (quoting Commonwealth by Shapiro v.
Golden Gate National Senior Care, LLC, 194 A.3d 1010, 1027-28 (Pa. 2018)).
“Consistent with these principles, when construing a statute ‘we must listen
attentively to what the statute says, but also to what it does not say.’” In re
Canvassing Observation, 241 A.3d at 349 (quoting Discovery Charter School v.
School District of Philadelphia, 166 A.3d 304, 321 (Pa. 2017)).
Section 1105-A(a) of the Election Code authorizes the Secretary to
issue “directives or instructions,” not “regulations,” with respect to the
“implementation of electronic voting procedures and for the operation of electronic
voting systems.” 25 P.S. §3031.5(a). Notably, the directive authorization is limited
to subsection (a), which concerns the examination and reexamination of electronic
voting systems. The directive authorization does not apply to the entirety of Section
1105-A as a stand-alone subsection. The question, then, is to what end may the
Secretary issue a directive about electronic voting systems.
Subsection (a) relates solely to the procedures by which a vendor may
seek approval of its electronic voting system. In that context, directives and
instructions are appropriate to instruct vendors on how to succeed in their quest for
the Secretary’s approval.13 Such directives have an analog in government
procurement. A government agency invites requests for proposal (RFP) from
contractors seeking to do work for the government. In this invitation, the agency
sets forth detailed terms, or directives, on how to submit a proposal and the agency’s
performance expectations. See, e.g., Dragani v. Borough of Ambler, 37 A.3d 27, 31
(Pa. Cmwlth. 2012) (bidder or offeror must strictly comply with terms of an RFP in
13
Electors seeking a reexamination would also use the Secretary’s directives or instructions but to
look for a deviation therefrom.
21
order to be awarded a contract); Gaeta v. Ridley School District, 788 A.2d 363, 364
(Pa. 2002) (invitation to bid set forth instructions on date and time of submission,
bid bonds and surety quality in addition to bid amount for construction of school).
Here, the Secretary reads her authority to issue a “directive” as an end
in itself, i.e., as a grant of power to regulate county boards of elections. So long as
her publication is called a “directive” and says something about electronic voting
systems, or voting devices, it is authorized. There are several impediments to this
proffered legal position.
First, Section 1105-A of the Election Code refers repeatedly to
electronic voting systems and only once to voting devices, in subsection (b).14
Nowhere does Section 1105-A use the word certification or decertification.
Likewise, it does not authorize the Secretary’s approval of a county board’s voting
device, let alone its disapproval. Subsection (a) does not mention county boards of
elections, only electors and vendors and other persons desirous of getting an
electronic voting system on (or off) the Secretary’s approved list.
Second, the legislature has not conferred rulemaking power upon the
Secretary anywhere in the Election Code. By contrast, the legislature has expressly
vested county boards of elections with this power. See Sections 1111(c) and 1110-
A(d) of the Election Code, 25 P.S. §§3011(c), 3031.10(d)15 (stating that county
boards may make reasonable rules and regulations concerning the conduct of
political party representatives present during election preparation). Unlike a
management directive, a regulation has general application and has the force and
effect of law. Corman, 266 A.3d at 462.
14
Subsection (b) also refers to “components” of electronic voting systems as well as “voting
devices” and “automatic tabulating equipment.” 25 P.S. §3031.5(b).
15
Added by the Act of July 11, 1980, P.L. 600.
22
Third, the Secretary does not explain why she may regulate the county
boards’ handling of their voting devices when Section 1105-A(a) authorizes her
approval, or disapproval, of entire systems.16 Instead, the Secretary treats “systems”
and “devices” as interchangeable words, in derogation of their statutory definitions.
Notably, Section 1104-A(a) of the Election Code17 requires counties to acquire and
install “components of an electronic voting system of a kind approved” by the
Secretary. 25 P.S. §3031.4(a) (emphasis added). Section 1104-A supports the
County’s view that the Secretary may issue instructions or directives about systems
or types, not individual voting devices or “components.”
Fourth, subsection (a) relates exclusively to the procedures by which an
electronic voting system can be approved or subsequently disapproved. It does not
provide a substantive standard for the examination and approval of a system. It
merely requires the applicant vendor to comply with federal standards, if any, as a
precondition to requesting the Secretary’s examination.
Subsection (b) does contain a substantive standard in that it requires the
Secretary’s report on the examined and approved system to attest that the system
“can be safely used by voters at elections.” Section 1105-A(b) of the Election Code,
25 P.S. §3031.5(b). Safe use has been the standard for every manner of voting
machinery since at least 1937. See Section 1106(b) of the Election Code, 25 P.S.
§3006(b). However, Section 1105-A(b) does not authorize or require the Secretary
to issue “directives or instructions,” only “reports” that will guide the county boards,
inter alia, in their purchase of a sufficient number of components. 25 P.S.
16
The Secretary does not address Section 207 of the Election Code, added by the Act of October
31, 2019, P.L. 552, 25 P.S. §2627, which speaks to the disapproval of “voting apparatuses,”
presumably by the disapproval of a widely-used electronic voting system.
17
Added by the Act of July 11, 1980, P.L. 600.
23
§3031.5(b). It is noteworthy that the Secretary’s report on Dominion speaks to the
county’s use of third-party vendors. See, e.g., Amended Petition, Ex. A at 44
(providing that any “data transfer between the vendor and county must be done using
encrypted physical media or secure file transfer process”).
The Secretary’s insistence that the power to issue a directive has
conveyed to her the power to regulate county boards of elections is a position that
raises both procedural and substantive questions. It is beyond peradventure that an
agency may exercise only those powers conferred by “clear and unmistakable
language.” Aetna Casualty and Surety Company v. Insurance Department, 638 A.2d
194, 200 (Pa. 1994) (quotation omitted).
As the County points out, Section 1105-A must be read together with
Section 302. “Every statute shall be construed, if possible, to give effect to all its
provisions.” 1 Pa. C.S. §1921(a). Statutes that relate to the same subject “shall be
construed together, if possible, as one statute.” 1 Pa. C.S. §1932(b). All provisions
of the Election Code are in pari materia. In re Philadelphia County Board of
Elections, 73 A.2d 34, 36 (Pa. 1950).
Here, Section 302(g) of the Election Code obligates county boards of
elections to “inspect systematically and thoroughly the conduct of primaries and
elections in the several election districts of the county to the end that primaries and
elections may be honestly, efficiently, and uniformly conducted.” 25 P.S. §2642(g).
The Secretary argues that this provision does not address how the county boards are
to inspect, and, thus, she believes that the county boards must follow her directives
with respect to inspection, or non-inspection, of electronic voting devices.
Preliminary Objections ¶¶22-27; Secretary’s Brief at 14-15. The Secretary
maintains that because Section 1105-A(a) is the specific and later-in-time provision,
24
it has superseded Section 302. Preliminary Objections ¶¶28-29; Secretary’s Brief at
13-16. This interpretation, she argues, is entitled to deference.
For its part, the County emphasizes that Section 1105-A(a) uses the
permissive “may issue,” but Section 302 uses the mandatory “shall perform” with
respect to a county board of elections’ duty to inspect voting equipment of all kinds,
including its electronic devices. Inspections of election equipment are part and
parcel of the Election Code. For example, Section 1230 of the Election Code, 25
P.S. §3070, provides that a county board of elections must permit inspection of its
voting machines “by direction of any legislative committee.” Even so, Directive 1
of 2021 does not regulate the manner of the county boards’ inspections; rather, it
effectively prohibits inspections altogether.
We reject the Secretary’s claim that her view of the Election Code is
entitled to deference. First, her construction of Section 1105-A(a) as superseding a
county board’s ability to inspect its voting devices is not consonant with her earlier
interpretation that was expressed in the 2016 and 2020 Guidances. An agency’s
revision to its interpretation of a statute defeats its claim for deference. See Dauphin
County Industrial Development Authority v. Pennsylvania Public Utility
Commission, 123 A.3d 1124, 1135 (Pa. Cmwlth. 2015) (“An administrative agency
may revise and correct its prior interpretation of a statute. However, it cannot expect
that its later interpretation is entitled to very much deference”).18 Second, the County
can also claim to be entitled to deference with respect to its interpretation of Section
302. It is the government agency charged with its enforcement. The interpretation
18
The Secretary neither acknowledges nor offers an explanation for the change between the 2016
and 2020 Guidances and Directive 1 of 2021. See, e.g., Sacred Heart Medical Center v. Sullivan,
958 F.2d 537, 544 (3d Cir. 1992) (agency must offer a “reasoned justification” for change in its
statutory interpretation or policy modification).
25
of a statute is, in any case, the prerogative of the judiciary. Crown Castle NG East
LLC v. Pennsylvania Public Utility Commission, 234 A.3d 665, 679-80 (Pa. 2020).
In her claim of regulatory authority over the county boards of elections,
the Secretary has not engaged with the text and structure of Section 1105-A of the
Election Code. This omission, in itself, prevents a ruling in her favor on her
demurrer to Count III. When also considering a county board of elections’
independent duties under the Election Code, we cannot say with certainty at this
juncture that Count III does not state a claim. The Secretary asks the Court to take
the entire subject matter of electronic voting systems out of the County’s purview,
but she does so without providing the Court a careful reading of the Election Code.
Limitations on the County’s power, if any, will become evident in the course of the
Court’s consideration of Counts I and II, and Count III. We may sustain a
preliminary objection only if it is certain that the County’s challenge to Directive 1
of 2021 fails as a matter of law. The Secretary’s legal position leaves many doubts.
Conclusion
Tampering with election equipment of any kind is a grave matter.
Whether prevention thereof is the responsibility of the Secretary or of the county
boards of elections, or both, is not clear. Both are government agencies created by
the General Assembly with discrete and separate roles to fulfill toward the end of
honest elections in Pennsylvania. Both agencies are presumed to act lawfully and
reasonably in the exercise of their statutory duties. Pennsylvania Retailers’
Associations, Reliable, Inc. v. Lazin, 426 A.2d 712, 717 (Pa. Cmwlth. 1981). The
county boards of elections are not bureaus within the Department of State subject to
management by the Secretary of the Commonwealth. They are separate and stand-
alone government agencies.
26
Concluding that the Secretary’s legal position faces many hurdles, we
overrule the Secretary’s preliminary objection to Count III of the Amended Petition.
____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita
Judge Wallace did not participate in the decision of this case.
27
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
County of Fulton, Fulton County Board :
of Elections, Stuart L. Ulsh, in his :
official capacity as County :
Commissioner of Fulton County and :
in his capacity as a resident, taxpayer :
and elector in Fulton County, and Randy :
H. Bunch, in his official capacity as : No. 277 M.D. 2021
County Commissioner of Fulton County :
and in his capacity as a resident, :
taxpayer and elector of Fulton County, :
Petitioners :
v. :
:
Secretary of the Commonwealth, :
Respondent :
ORDER
AND NOW, this 23rd day of May, 2022, the preliminary objection filed
by the Secretary of the Commonwealth in the above-captioned matter is hereby
OVERRULED. The Secretary of the Commonwealth shall file an answer to the
amended petition for review within thirty (30) days of the date of this order.
____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita