Banfield, Aplts. v. Secretary of the Com

[J-74-2014]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ.
MARK BANFIELD, SARAH BECK, JOAN: No. 83 MAP 2013
BERGQUIST, ALAN BRAU, LUCIA :
DAILEY, PETER DEUTSCH, : Appeal from the Notice of Judgment of
CONSTANCE FEWLASS, BARBARA : Commonwealth Court entered at No. 442
GLASSMAN, MARIJO HIGHLAND, JANIS
: MD 2006 entered October 15, 2013 in
HOBBS-PELLECHIO, DEBORAH : favor of Respondent and against
JOHNSON, ANDREW MCDOWELL, : petitioners on Counts I, II, III, IV, V, VI, VII,
JAMES MICHAELS, J. WHYATT : VIII, IX and X of the Petition for Review.
MONDESIRE, MARY MONTRESOR, :
REV. JAMES MOORE, CATHY REED, : ARGUED: September 10, 2014
REGINA SCHLITZ, ALEXANDER :
SICKERT, DANIEL SLEATOR, :
SUSANNA STAAS, STEPHEN J. :
STRAHS, MARY VOLLERO, JEANNE :
ZANG, :
:
Appellants :
:
:
v. :
:
:
PEDRO CORTÉS, ACTING SECRETARY :
OF THE COMMONWEALTH, :
:
Appellee :
OPINION
MR. JUSTICE STEVENS DECIDED: February 17, 2015
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.1 The
Commonwealth Court found that the DREs satisfy the certification requirements set
forth in the Election Code2 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.
I. Background
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
1In commencing this litigation, Appellants challenged the discretion of Secretary Pedro
A. Cortés, who initially certified the DREs at issue. Secretary Carol Aichele was
substituted as a defendant once she began serving as head of the State Department in
April 2011. Secretary Cortés was reappointed to this cabinet position in January 2015
by Governor Tom Wolf. We refer to both individuals collectively as “the Secretary.”
2 See Act of June 3, 1937, Pub.L. 1333, § 1, as amended, 25 P.S. §§ 2600, et seq.
Although Appellants refer to the relevant sections of the Election Code along with their
corresponding citation in Title 25, this opinion refers the statutory provisions only by the
section numbers as listed in Title 25 for the sake of simplicity and brevity.
[J-74-2014] - 2
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 (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.3 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
3 Although neither HAVA nor the Election Code expressly prohibit the use of any voting
system, the Secretary found that lever machines do not comply with HAVA, which
requires voting systems to “produce a permanent paper record with a manual audit
capacity.” 52 U.S.C. § 21081(a)(2)(B); Kuznik v. Westmoreland Cnty. Bd. of Comm'rs,
588 Pa. 95, 108, 902 A.2d 476, 483 (2006).
[J-74-2014] - 3
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.4 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 ballotsPusing 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.
4 The following DREs are certified for use: the AVC Edge II and AVC Advantage (made
by Sequoia Voting Systems, Inc.), the iVotronic (Elections Systems & Software, Inc.),
the eSlate (Hart InterCivic, Inc.), the ELECTronic 1242 (Danaher Industrial Controls),
and the AccuVote TSX (Diebold Elections Systems). Upon Appellants’ challenge, the
Secretary decertified the WinVote (Advanced Voting Systems).
[J-74-2014] - 4
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.5
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.
5 Pa. Const. art. I, § 5 (“[e]lections shall be free and equal; and no power, civil or
military, shall at any time interfere to prevent the free exercise of the right of suffrage”);
Pa. Const. art. I, § 26 (“[n]either the Commonwealth nor any political subdivision thereof
shall deny to any person the enjoyment of any civil right, nor discriminate against any
person in the exercise of any civil right”); Pa. Const. art. VII, § 6 (“[a]ll laws regulating
the holding of elections by the citizens P shall be uniform throughout the stateP”).
[J-74-2014] - 5
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 contests6 and
22 months for federal elections.7 Noting Appellants did not challenge the permanency
of DRE records printed on full sheets of paper, the Commonwealth Court majority found
6 See 25 P.S. § 3070 (providing that voting machines be locked for twenty days
following each election and as longer as necessary due to a vote contest).
7 See 52 U.S.C. § 20701 (requiring federal election officers to retain and preserve for
twenty-two months all records and papers related to the vote in a federal election).
[J-74-2014] - 6
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 recountP 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
[J-74-2014] - 7
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.
[J-74-2014] - 8
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).
[J-74-2014] - 9
On October 1, 2013, in a single-judge memorandum authored by Judge
Leadbetter, the Commonwealth Court granted the Secretary’s motion for summary relief
on Appellants’ remaining counts and entered judgment in favor of the Secretary.
Banfield v. Aichele, 442 M.D. 2006 (Pa. Cmwlth. Oct. 1, 2013) (“Banfield III”). The
Commonwealth Court dismissed Counts II, III, and VII in which Appellants claimed 1)
the DREs do not have adequate security and 2) the Secretary’s certification process
was inadequate to assess DRE security. Reviewing Appellants’ request for mandamus
relief directing the Secretary to decertify the DREs and to establish more stringent
testing standards, the Commonwealth Court emphasized that mandamus is limited to
circumstances where the plaintiff has a clear legal right to compel a public official to
perform a mandatory duty. Maxwell v. Bd. of Sch. Directors of Sch. Dist. of Farrell, 381
Pa. 561, 566, 112 A.2d 192, 195 (1955). Viewing Appellants’ request as a demand for
improper oversight of the Secretary’s discretion, the Commonwealth Court found
Appellants failed to establish the DREs fell short of the statutory requirements at issue
as there is no evidence the DREs fail to accurately record votes. The Commonwealth
Court concluded that “[s]ince voting systems will always be vulnerable to fraud, the
mere possibility of a security breach is not alone sufficient to warrant overriding the
Secretary’s determination to certify the systems.” Banfield III, 442 M.D. 2006, at *8.
Furthermore, the Commonwealth Court concluded that the Secretary was entitled
to summary relief on Counts VIII, IX, and X with respect to Appellants’ constitutional
challenges to the certification of the DREs. Although Appellants claimed the DREs are
unable to accurately record votes and thus, interfere with the fundamental right to vote
of those individuals forced to use the DREs, the Commonwealth Court found that
Appellants had no foundation for such arguments which are based on the faulty premise
that the DREs at issue are so inaccurate and insecure as to deny them the right to vote.
[J-74-2014] - 10
Accordingly, the Commonwealth Court granted the Secretary’s motion for
summary relief. On October 15, 2013, the Commonwealth Court entered judgment in
favor of the Secretary and against Appellants on all counts of the Petition for Review.
Appellants present the following five issues for our review:
1. Does an [electronic voting system] “provide for a permanent
physical record of each vote cast” as required by Section 1101-A [25 P.S.
§ 3031.1] if it only stores electronic data as votes are cast and only prints
that electronic data (if ever) after an election has ended?
2. Does an electronic voting system P allow for a “statistical
recount” as required by Section 1117-A [25 P.S. § 3031.17] if it cannot
verify that votes were accurately captured?
3. Does an [electronic voting system] “preclude every person from
tampering with the tabulating element” as required by Section 1107-A [25
P.S. §§ 3031.7(16)(iii), (17)(i)] if it has known security vulnerabilities that
make it possible to alter votes?
4. Does an examination allow the Secretary to ensure that an
[electronic voting system] “meets all of the requirements” of the Election
Code as required by Section 1105-A if it does not test for known security
vulnerabilities that make it possible to alter votes?
5. Is the certification of an [electronic voting system] narrowly
tailored to achieve a compelling state interest if, unlike other available
EVSs, the EVS cannot verify that votes were accurately captured?
Appellants’ Brief, at 4 (reordered for review).
II. Discussion
“An application for summary relief may be granted if a party's right to judgment is
clear and no material issues of fact are in dispute.” Jubelirer v. Rendell, 598 Pa. 16, 28,
953 A.2d 514, 521 (2008) (citations omitted).8
8 Pennsylvania Rule of Appellate Procedure 1532(b), which governs motions for
summary relief, provides: “[a]t any time after the filing of a petition for review in an
appellate or original jurisdiction matter the court may on application enter judgment if
the right of the applicant thereto is clear. Pa.R.A.P. 1532(b).
[J-74-2014] - 11
[I]n evaluating the Commonwealth Court’s decision to grant summary
relief, we examine whether there is any genuine issue of material fact and
whether the moving party is entitled to relief as a matter of law. In doing
so, we must view the record in the light most favorable to the non-moving
party, and all doubts as to the existence of a genuine issue of material fact
must be resolved against the moving party. Murphy v. Duquesne Univ.,
565 Pa. 571, 777 A.2d 418, 429 (2001)). Where there is no dispute as to
any material issues of fact, we must determine whether the lower court
committed an error of law in granting summary relief. Capek v. Devito, 564
Pa. 267, 767 A.2d 1047, 1048, n. 1 (2001). As with all questions of law,
our scope of review is plenary.
Pennsylvania Med. Soc. v. Dep't of Pub. Welfare of Commonwealth, 614 Pa. 574, 589,
39 A.3d 267, 276-77 (2012).
A. Permanent Physical Record of Each Vote Cast (25 P.S. § 3031.1)
Appellants argue the Commonwealth Court erred in granting Secretary summary
relief on Count I as the DREs violate the Election Code by failing to provide for a
permanent physical record of each vote cast. In the definitional section of the 1980
Election Code amendments permitting electronic voting, the Legislature defined an
“electronic voting system” as “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.” 25 P.S. § 3031.1 (emphasis added).
Appellants begin by emphasizing their belief that electronic data are not
“physical” records as such data is composed of subatomic particles that are not
perceptible through the senses. Appellants also claim electronic data cannot be
considered “permanent” as such records are in an alterable state until the polls close at
the end of the election. Lastly, Appellants challenge the Commonwealth Court’s finding
that electronic data constitute a “record of each vote cast” as the DREs’ recording
process is dependent on software which may be flawed or corrupted; thus, Appellants
allege that one cannot be certain if the electronic data reflects voter intent.
[J-74-2014] - 12
Although Appellants concede that the DREs can print records on paper that are
“physical” and “arguably permanent,”9 Appellants claim the Commonwealth Court erred
in finding the DREs’ printing capability allow them to “provide for a record of each vote
cast.” Appellants claim the plain meaning of the requirement that the DREs “provide
for” a permanent physical record should be interpreted to require a DRE to provide a
contemporaneous printed record at the time the vote is cast so that voters can verify the
DRE accurately recorded their votes. Appellants argue that the records printed at the
end of the election are not meaningful records, as they merely report electronic data
that may have been altered without detection. If this Court finds the phrase “provide for
a record of each vote cast” to be ambiguous, Appellants claim that their interpretation is
supported by the statute’s legislative history in which they allege the members of the
General Assembly expressed a distrust of computers and intended this requirement to
operate as a safeguard to provide a recountable record of votes.
In response, the Secretary contends that the DREs’ electronic records constitute
permanent physical records. Although not definitively decided by the Commonwealth
Court, the Secretary claims the DREs’ electronic records are “physical” as they can be
preserved for later use on removable memory cards and can remain intact for many
years. With respect to the electronic records’ permanency, the Secretary supports the
Commonwealth Court’s assessment that this requirement signifies that vote records
need not last forever but must be retained for a sufficient period of time to permit
recounts, recanvassing, and litigation. Moreover, the Secretary rejects Appellants’
suggestion that vote records must be software-independent as the General Assembly
specifically authorized the use of voting systems that only record votes electronically.
9 In Footnote 44 of their brief, Appellants assert there is a genuine issue of disputed fact
as to whether DRE vote records printed on thermal paper constitute “permanent”
records, but do not develop any analysis to support this point.
[J-74-2014] - 13
The Secretary also agrees with the Commonwealth Court’s finding that the
DREs’ printed records constitute permanent physical records of each vote cast. As the
Code requires that an electronic voting system “provide for” such records, the Secretary
finds this provision encompasses a DRE’s ability to generate records on demand,
defining the phrase “provide for” as “to make it possible for something to be done.”
Secretary’s Brief, at 17 (citing Oxford Advanced Learners Dictionary). Although
Appellants argue the printed records are simply copies of flawed electronic data, the
Secretary contends this indirect attack fails for the same reasons as their direct attack
on electronic data as the Legislature specifically authorized devices that only record
votes electronically. If this Court finds the permanent physical record requirement
ambiguous, the Secretary urges this court to give weight to her interpretation as the
governmental officer charged with applying the Election Code’s provisions. See 1
Pa.C.S. § 1921(c)(8). In addition, the Secretary urges this Court to consider the
consequences of adopting Appellants’ interpretation of the language in question to
decertify the DREs in use and leave a majority of the counties in the Commonwealth
without a voting system. While Appellants suggest that counties should replace DREs
with optical-scan systems in which a paper ballot is counted by an electronic device, the
Secretary argues that such a “solution” would pose the same issues as use of the DREs
and may not be economically feasible.
This challenge requires this Court to engage in statutory interpretation of the
Election Code, which, as a question of law, is subject to a de novo standard of review
and a plenary scope of review. Sch. Dist. of Philadelphia v. Dep't of Educ., ---Pa.---, 92
A.3d 746, 751 (2014). This Court’s role in statutory interpretation is to ascertain and
effectuate the intent of the Legislature, giving effect to all provisions of the statute under
review, if possible. 1 Pa.C.S. § 1921(a). The best indication of legislative intent is the
[J-74-2014] - 14
plain language of the statute. Bowling v. Office of Open Records, 621 Pa. 133, 156, 75
A.3d 453, 466 (2013). The plain language of each section of a statute must be read in
conjunction with one another, construed with reference to the entire statute. Id. When
the words of a statute are clear and free from all ambiguity, the letter of the statute is not
to be disregarded under the pretext of pursuing its spirit. 1 Pa.C.S. § 1921(b).
Accordingly, only when the words of a statute are ambiguous should a reviewing court
seek to ascertain the intent of the General Assembly through consideration of the
various factors found in Section 1921(c). Id. at § 1921(c).
Keeping these principles in mind, we turn to our task of interpreting Section
3031.1’s definition which states that an electronic voting system “shall provide for a
permanent physical record of each vote cast.” Although Appellants offer different
reasons why the DREs at issue cannot meet this definition, each of their arguments is
grounded in their belief that the Election Code requires an electronic voting system to
produce a software-independent, voter-verified paper record at the time each vote is
cast. However, while Appellants attempt to read this requirement into Section 3031.1,
the plain language of the statute provides otherwise.
Appellants cannot point to any provision in the Election Code requiring an
electronic voting system to print a paper ballot for each individual voter to view. On the
contrary, the plain language of Section 3031.1 states that an electronic voting system
shall “provide for a permanent physical record.” 25 P.S. § 3031.1 (emphasis added).
While the Oxford Dictionary defines the word “provide” as “to make available for use or
supply,” it separately defines the phrase “provide for” as “to make adequate preparation
for (a possible event).” Oxford Dictionaries, http://www.oxforddictionaries.com/
us/definition/american_english/provide#provide__13. As the addition of the preposition
“for” brings an anticipatory meaning to the phrase, we agree with the Commonwealth
[J-74-2014] - 15
Court that Appellants’ interpretation of the permanent physical record provision to be a
contemporaneous requirement would render the word “for” to be mere surplusage. See
Commonwealth v. Lobiondo, 501 Pa. 599, 603, 462 A.2d 662, 664 (1983) (presuming
that “every word, sentence or provision of a statute is intended for some purpose and
accordingly must be given effect”). Thus, the Legislature’s selection of the phrase
“provide for” is consistent with the Commonwealth Court’s interpretation requiring DREs
to have the “ability to generate or supply the required records on demand.”
Moreover, other Election Code provisions show the Legislature contemplated
and authorized electronic voting systems that would register votes during an election
without paper ballots. Section 3031.1 broadly defines “ballot” as “ballot cards or paper
ballots upon which a voter registers or records his vote or the apparatus by which the
voter registers his vote electronicallyP.” 25 P.S. § 3031.1 (emphasis added). Similarly,
Section 3031.1 defines “voting device” as “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 electronicallyP.” Id. (emphasis added). In addition, as discussed more
fully in the next issue, the Legislature set forth different full recount procedures for
electronic voting systems that operate with or without paper ballots. If we were to
accept Appellants’ contention that the Legislature intended that electronic systems must
provide voter-verified ballots, this interpretation would render meaningless provisions in
which the Legislature specifically discussed voting systems that do not use paper
ballots to register votes, leading to an absurd result. We presume the General
Assembly does not intend a result that is absurd or unreasonable, but intends for the
entire statute to be effective and certain. 1 Pa.C.S. § 1922.
[J-74-2014] - 16
Appellants argue that the DREs’ printed records are mere copies of electronic
data that may have been altered without detection and suggest counties should
purchase optical scanners or DREs equipped with new VVPAT (Voter-Verified Paper
Audit Trail) technology. Even though Appellants have raised a valid concern about DRE
security, this assertion does not affect our finding that the Legislature clearly authorized
electronic voting systems that do not utilize paper ballots. While VVPAT technology
may offer additional security against election fraud, Appellants should direct their claims
to the Legislature, which is better suited to investigate the advantages and
disadvantages of VVPAT DREs and examine policy considerations that would arise
from requiring voter-verified paper ballots. Although Appellants laud paper records as
a panacea to voting fraud, even paper ballots are not a completely secure system
without risk as there are many opportunities for tampering to occur from the time a voter
casts his or her ballot until the time a winner is declared. Appellants also seem to
assume there would be no practical problems in attempting to implement a
contemporaneous paper record requirement while preserving voter privacy and election
security.10 As the certified DREs are able to print individual vote records at the close of
an election, the DREs produce a permanent physical record of each vote cast as
contemplated by Section 3031.1.11 Thus, the Commonwealth Court correctly granted
the Secretary summary relief on Count I of Appellants’ Petition for Review.
10 Moreover, the Secretary has also expressed concern that DREs with VVPAT
technology may violate the ballot secrecy requirement in the Pennsylvania Constitution
by recording individual votes on a continuous roll of paper which may allow officials to
ascertain a voter’s identity. See Pa. Const. art. VII, § 4 (providing that “[a]ll elections by
the citizens shall be by ballot or by such other method as may be prescribed by law:
Provided, That secrecy in voting be preserved”).
11 While Appellants disputed in the lower court whether thermal paper records are
sufficiently permanent, Appellants limited their argument to a three-sentence footnote
(continuedP)
[J-74-2014] - 17
B. Statistical Recount Requirement (25 P.S. § 3031.17)
In their second challenge, Appellants claim the technical attributes of the DREs
make them incapable of allowing election officials to conduct a statistical recount of
election returns pursuant to Section 3031.17, which provides as follows:
The county board of elections, as part of the computation and canvass of
returns, shall conduct a statistical recount of a random sample of ballots
after each election using manual, mechanical or electronic devices of a
type different than those used for the specific election. The sample shall
include at least two (2) per centum of the votes cast or two thousand
(2,000) votes whichever is the lesser.
25 P.S. § 3031.17 (emphasis added).
Although the Commonwealth Court specifically found the DREs at issue can be
subject to a statistical recount by printing vote records that can be counted manually at
the close of the election, Appellants emphasize the DREs do not produce a record from
which officials could determine if the DRE correctly recorded a voter’s selection.
Suggesting the Commonwealth Court incorrectly defined the term “recount,” Appellants
distinguish between the terms “recanvass” and “recount,” claiming that a recanvass only
checks whether the votes were correctly counted whereas a recount assesses whether
votes were correctly captured in the first place. Appellants argue the legislative history
of the 1980 amendments authorizing electronic voting systems shows a recount must
(Pcontinued)
on appeal. Appellants’ Brief at 32, n. 44. Appellants have not meaningfully challenged
the opinion of the Secretary’s expert, Dr. Shamos, who emphasized that the
permanency of thermal paper can far exceed the both the twenty-day state ballot
retention requirement and the twenty-two month federal ballot retention requirement if
kept from direct heat. “Where an appellate brief fails to provide any discussion of a
claim with citation to relevant authority or fails to develop the issue in any other
meaningful fashion capable of review, that claim is waived. It is not the obligation of an
appellate court to formulate [an] appellant’s arguments for him.” Wirth v.
Commonwealth, ---Pa.---, 95 A.3d 822, 837 (2014).
[J-74-2014] - 18
verify voter intent as some legislators refused to support the amendments unless they
contained a statistical recount to detect and deter fraud.
Even assuming that votes recorded by a DRE can be recounted, Appellants
claim the DREs prevent officials from conducting a statistical recount by “devices of a
type different than those used in the election” as a DRE prints software-dependent vote
records. In contrast, Appellants argue that optical scan systems and VVPAT DREs
meet this requirement as they retain an original voter-verified paper record which can be
counted by another electronic device or by hand. Appellants again take issue with the
Commonwealth Court’s finding that the Election Code does not require software-
independent vote records, accusing the Commonwealth Court of implicitly repealing the
statistical recount requirement for electronic voting systems in Section 3031.17. As
portions of the 2004 amendments pertaining to full recounts provide that electronic
voting systems utilizing paper ballots must be subject to a full recount and any other
type of electronic voting system be subject to a recanvass (25 P.S. § 3031.18, §
3154(e)), Appellants suggest that this distinction shows that electronic voting systems
are incapable of performing any recount, including a statistical recount.
In response, the Secretary supports the Commonwealth Court’s finding that the
DREs can conduct a statistical recount using a “device of a different type” as required
by Section 3031.17 as a DRE’s printed records can be counted manually or in the
alternative, a DRE’s electronic records can be transferred on external media devices to
be recounted on another electronic device using different software. The Secretary
distinguishes the statistical recount provision from full recounts required by other
Election Code provisions, claiming that while a statistical recount is automatically
conducted on a small random sample of ballots at the close of every election, full
recounts are only performed in the event of discrepancy in the voting results or a
[J-74-2014] - 19
request by voters to ensure against fraud or error. The Secretary claims the purpose of
the statistical recount is different; a “‘statistical recount’ seeks merely to determine
whether the original tabulation was performed correctlyP [and] is not designed to be a
forensic examination into whether a voter’s intent was properly recorded by the
machine.” Secretary’s Brief, at 29. Moreover, the Secretary rejects Appellants’ claim
that the Commonwealth Court implicitly repealed the “statistical recount” requirement by
finding that the 2004 amendments authorized electronic voting systems that do not use
paper ballots to register votes. The Secretary argues the Commonwealth Court never
suggested that this requirement be repealed or that these provisions were in conflict.
Appellants’ argument that a statistical recount requires election officials to assess
whether a DRE has correctly captured voter intent is another reformulation of their
contention that DREs must produce voter-verified paper ballots, which we have
determined is not required by the Election Code. The plain language of Section
3031.17 supports the Commonwealth Court’s finding that the statistical recount
requirement constitutes a mere recount or retally of a random sample of a small
percentage of the votes. Election officials can conduct a statistical recount on the DREs
at issue by printing the requisite percentage of vote records for a manual count or
removing the electronic data on external media devices to use a different electronic
device to recount the results. The purpose of the statistical recount, or any random
sampling, is to ensure that the small random sample taken is representative of the
voting results of the entire population. This provision gives officials a simple method to
assess whether the tabulating element of the DRE is working properly without having to
print out all the votes cast at every election.
We also reject Appellants’ claim that the word “recount” should be defined as an
assessment of each ballot to determine voter intent and “recanvass” be defined as a
[J-74-2014] - 20
retally. While the Election Code does not define “recount,” the definitional section states
that canvass “includes gathering the ballots after the election and counting, computing[,]
and tallying the votes.” 25 P.S. § 2602(a.1). Since the Election Code’s original
enactment, the Legislature has consistently used the terms recount and recanvass to
acknowledge that distinct procedures are more suitable to conduct full recounts on
voting systems with different technology; ballots may be recounted and voting systems
that do not use ballots may be recanvassed. This concept is demonstrated in 25 P.S. §
3261 and 3262 (both sections addressing “Recounts”), which set forth full recount
procedures to be conducted in the event of fraud, error, or a proper voter request. The
two sections contain nearly identical language except for the procedures in which the
recount is conducted; while Section 3261 requires districts employing paper ballot
voting to “open the ballot box P and cause the entire vote to be correctly counted,”
Section 3262 mandates that voting machines be “recanvassed” by examining the
registering counters that record the vote totals. 25 P.S. § 3261-62. As noted above, the
term “voting machines” applies to paperless mechanical lever systems. See In re Gen.
Election for Twp. Supervisor, 620 A.2d 565, 568-69 (Pa. Cmwlth. 1993).
In the 1980 amendments, the General Assembly authorized electronic voting with
the additional requirement that electronic voting systems be subject to the automatic
statistical recount procedure at every election. The Legislature subsequently clarified in
the 2004 amendments that the same full recount procedures set forth in 25 P.S. § 3261
and 3262 for paper ballots and voting machines apply to electronic voting systems in
the event of fraud, error, or a proper voter request; electronic systems that use paper
ballots, similar to a traditional ballot box, should be subject to a recount under Section
3261 and electronic systems that register votes without paper ballots, similar to
[J-74-2014] - 21
paperless voting machines, should be subject to a recanvass under Section 3262.12 In
making this distinction, the Legislation in no way altered the automatic statistical recount
procedure, but explained the technical attributes of an electronic voting system will
dictate how a full recount should be conducted. In doing so, the General Assembly
clearly contemplated how an electronic voting system processes votes and set forth
procedures for officials to conduct both statistical and full recounts on electronic voting
systems that do not register votes on paper ballots.13 Appellants’ claim that the
Legislature intended the word “recount” to require software-independent, voter-verifiable
paper ballots runs contrary to its clear intent to authorize electronic voting systems that
register votes electronically. As the DREs are capable of performing a statistical
recount, the Commonwealth Court properly granted the Secretary summary relief on
Count IV of Appellants’ Petition for Review.
12 If an election district uses an electronic voting system with paper ballots, the board
shall recount all ballots using manual, mechanical, or electronic devices of a different
type used for the specific election. 25 P.S. § 3154(e)(3). If the district uses “any other
type of electronic voting systems, the county board shall conduct the recanvass similar
to the procedure specified in clause (1) for voting machines.” 25 P.S. § 3154(e)(4).
See also 25 P.S. § 3031.18 (emphasizing same distinction between electronic voting
systems based on their use of paper ballots).
13 The only authority Appellants cite offer for their claim that a recount must verify voter
intent is Edwards v. Prutzman, 165 A. 255, 255 (Pa. Super. 1933), in which the Superior
Court provided that “the recounting of the votesP is to ascertain whether there is any
fraud or substantial error appearing. This requires something more that the mere
counting of the votes. It involves the exercise of judicial functions to decide whether
certain votes shall be counted or not.” This argument ignores the differences in
technology offered by paper ballots and electronic voting. While election officials
conducting a manual recount of paper ballots may examine the ballots for markings that
may not clearly demonstrate voter intent, a DRE touchscreen does not record
ambiguous indicia of voter intent that can be reviewed during a manual recount. See
Wexler v. Anderson, 452 F.3d 1226, 1233 (11th Cir. 2006).
[J-74-2014] - 22
C-D. Protection from Tampering (25 P.S. § 3031.7) and the
Adequacy of the Secretary’s Examination of the DREs’ Security
We will address the next two issues together as Appellants’ arguments are
interrelated. In their third issue, Appellants maintain the Commonwealth Court erred in
finding the DREs satisfy the statutory certification requirements set forth in Section
3031.7 related to a DRE’s security from tampering:
No electronic voting system shall, upon examination, or reexamination, be
approved by the Secretary of the Commonwealth, or by any examiner
appointed by him, unless it be established that such system, at the time of
such examination or reexamination:
...
(12) Provides acceptable ballot security procedures and impoundment of
ballots to prevent tampering with or substitution of any ballots...
...
(16) If the voting system is of a type which provides for the computation
and tabulation of votes at the district level, the district component of the
automatic tabulating equipment shall include the following mechanisms or
capabilities:
...
(iii) It shall be so constructed and controlled that, during the progress
of voting, it shall preclude every person from seeing or knowing the
number of votes theretofore registered for any candidate or question;
and it shall preclude every person from tampering with the tabulating
element.
25 P.S. § 3031.7 (emphasis added).
Specifically, Appellants argue that the DREs at issue cannot be deemed to have
sufficient protection against tampering when the DREs have security vulnerabilities that
make it possible to alter votes. Claiming that the mere possibility that a DRE’s
tabulating element is susceptible to tampering warrants its decertification, Appellants
argue that the plain language of the statute is obligatory as it provides that an electronic
voting system “shall preclude every person from tampering with the tabulating element.”
Id. (emphasis added). While the Commonwealth Court found Appellants presented “no
[J-74-2014] - 23
evidence that the challenged machines fail to accurately record votes when properly
used,” Appellants argue that Subsection 3031.7(16) does not include the qualifier “when
properly used” and assert the Legislature drafted this section in absolute terms.
Petitioners’ Brief, at 39 (citing Banfield III, 442 M.D. 2006, at *6).
In their motion for summary judgment and in their appellate brief, Appellants cite
to expert testimony and independent studies to support their claim that the DREs at
issue must be tamper-proof to comply with the Election Code.14 Appellants’ expert, Dr.
Jones, asserted that it would be possible to inject malicious code into a DRE to change
the vote tabulation. Appellants also rely on the 2005 report of a task force convened by
the Brennan Center for Justice which found that the Sequoia AVC Advantage, ES&S
iVotronic and Diebold Accuvote-TSx lack a “powerful countermeasure to software
attacks” and 2006 study by Princeton University researchers who claimed that a
predecessor to the AccuVote-TSx was susceptible to tampering as malicious software
14 Amicus Rutgers School of Law Constitutional Rights Clinic (“Rutgers”) filed a brief in
support of Appellants’ challenge to the DREs’ security. Rutgers has been litigating a
similar lawsuit in New Jersey to challenge the use of electronic voting systems that do
not produce voter-verified ballots, claiming that DREs’ vulnerability to tampering make
them inherently insecure and unreliable. Most of Rutgers’s brief refers to the use of one
particular DRE, the Sequoia AVC Advantage, in New Jersey elections. Rutgers relies
on expert testimony and evidence never entered into the record before the
Commonwealth Court. As correctly asserted by the Secretary, consideration of such
evidence by this Court would be improper since this evidence was never made part of
the official record. McCaffrey v. Pittsburgh Athletic Association, 448 Pa. 151, 162, 293
A.2d 51, 57 (1972) (appellate court cannot consider anything which is not part of the
record). Moreover, amicus briefs cannot raise issues not set forth by the parties. Hosp.
& Healthsystem Ass'n of Pennsylvania v. Dep't of Pub. Welfare, 585 Pa. 106, 115, 888
A.2d 601, 606 n.10 (2005); 4 Am.Jur.2d Amicus § 7 (2005) (“[A]n amicus must accept
the case before the court with the issues made by the parties. Accordingly, an amicus
curiae ordinarily cannot inject new issues into a case which have not been presented by
the parties”).
[J-74-2014] - 24
could be installed onto the DRE and transferred to other systems. In addition,
Appellants note the Secretaries of State in Ohio and California have decertified DREs
due to perceived security vulnerabilities and other state legislatures have required
DREs to have VVPAT technology.
In their fourth claim, Appellants claim the Secretary failed to use adequate testing
procedures in examining the DREs’ security. See 25 P.S. § 3031.5 (stating that the
Secretary “shall examine the [EVS]” to verify that the system “can be safely used by
voters P and meets all the requirements hereinafter set forth” in the Election Code).
Characterizing the Secretary’s testing as superficial and meaningless, Appellants claim
the Secretary’s reexaminer relied exclusively on testing of a federally recognized
independent testing authority (ITA), overlooked studies evaluating the DREs’ security
vulnerabilities, and failed to personally examine the DREs’ vulnerability to tampering.
Acknowledging the Commonwealth Court found mandamus relief does not encompass
a review of the Secretary’s discretion as to direct the manner in which the Secretary
performs her duties, Appellants contend the Secretary’s reexamination was an arbitrary
exercise of her discretion and based on a mistaken understanding of her duties. See
Appellants’ Brief, at 46 (quoting Seeton v. Pa. Game Comm’n, 594 Pa. 563, 574, 937
A.2d 1028, 1034 (2007) (providing that mandamus is “an appropriate remedy, to direct
[a public official] to comply with [her] statutory mandate to the extent [she]
misapprehends it”)).
The Secretary asserts the Commonwealth Court correctly held that the DREs at
issue preclude tampering as required by Section 3031.7(16)(iii). Criticizing Appellants’
claims of tampering as “hypothetical,” the Secretary maintains Appellants have not
identified a single, meaningful security breach in a Pennsylvania election. The
Secretary stresses that the DREs at issue have been tested and certified as secure for
[J-74-2014] - 25
reliable and accurate voting by independent federal laboratories and the Secretary’s
own examination. In addition, the Secretary emphasizes that the Election Code outlines
additional administrative and procedural security protections to preclude individuals
from tampering with the tabulating equipment of the electronic voting system. See 25
P.S. § 3031.13 (requiring that “automatic tabulating equipment P shall be locked and
sealed”); id. at § 3031.21 (providing for the secure custody of the electronic voting
system).
Rejecting Appellants’ claim that Section 3031.7(16) demands an electronic voting
system have absolute security, the Secretary maintains the Code does not require a
DRE to be immune from tampering, but simply have the capability to preclude
tampering, as the introductory paragraph of Section 3031.7(16) states that an electronic
voting system “shall include the following mechanisms or capabilitiesP.” (emphasis
added). As all voting systems are fallible and exhibit vulnerabilities, the Secretary
argues the possibility of electoral fraud or system malfunction can never be avoided no
matter what type of system is used. Moreover, the Secretary emphasizes the Code
gives her discretion to determine whether a particular system precludes tampering.
Even if this Court does not find the plain language of this provision to be dispositive, the
Secretary asserts there is no basis to conclude from the legislative history that the
Legislature intended to require absolute security against all potential threats.
In response to Appellants’ challenge to the certification process, the Secretary
defends the Commonwealth Court’s finding that Appellants failed to present any
evidence that the DREs at issue actually fell short of the statutory requirements and
were seeking inappropriate oversight of the Secretary’s discretionary duties. Refuting
Appellants claims that she ignored the DREs’ vulnerabilities, the Secretary maintains
that she determined that risks posed by such vulnerabilities were not sufficient to violate
[J-74-2014] - 26
the Election Code’s requirements. Thus, the Secretary concludes that Appellants
presented no basis for which the lower court could have concluded that she had acted
arbitrarily or mistakenly in certifying the DREs for use in Pennsylvania elections.
Our resolution of this claim turns on Appellants’ narrow argument that the DREs
at issue should be decertified and prohibited from use in Pennsylvania elections based
on the possibility that such systems are not tamper-proof. Appellants do not recognize
they are advocating that the DREs be held to an impossible standard of invulnerability.
We agree with the Commonwealth Court’s finding that the mere possibility of error
cannot bar the use of a voting system as “the unfortunate reality is that the possibility of
electoral fraud can never be completely eliminated, no matter which type of ballot is
used.” Banfield III, 442 M.D. 2006, at *8 (citing Weber v. Shelley, 347 F.3d 1101, 1106-
107 (9th Cir. 2003) (emphasis in original)). While Appellants claim traditional paper
ballots and optical scan voting are preferable alternatives, they fail to acknowledge that
such systems are also vulnerable to tampering as paper ballots can be easily destroyed
or altered by an individual intending to manipulate the election result. Moreover, paper
ballots may fail to accurately record voter intent as a result of mechanical or human
error that leads to the invalidation of votes, in cases where ballots have not been
completed in a correct and comprehensible manner, contain an overvote or undervote
based on the number of permitted selections in an election, or contain markings that
cannot be read by an optical scanner. As all voting systems are imperfect and not
immune from tampering, the Election Code cannot be read to impose a requirement that
cannot be achieved.
As the question of whether an electronic system has adequate security measures
against tampering necessarily results in a subjective determination, the Legislature
delegated this discretionary decision to the Secretary, who is the Pennsylvania’s chief
[J-74-2014] - 27
election official. Kuznik v. Westmoreland Cnty. Bd. of Comm'rs, 588 Pa. 95, 139-40,
902 A.2d 476, 502 (2006). We have previously held that “a reviewing court will
ordinarily defer to an agency’s interpretation of a regulation or a statute it is charged to
enforce.” Id. (citation omitted).
[W]hen the courts of this Commonwealth are faced with interpreting
statutory language, they afford great deference to the interpretation
rendered by the administrative agency overseeing the implementation of
such legislation.... Thus, our courts will not disturb administrative
discretion in interpreting legislation within an agency's own sphere of
expertise absent fraud, bad faith, abuse of discretion or clearly arbitrary
action.
Id. (quoting Winslow–Quattlebaum v. Maryland Ins. Group, 561 Pa. 629, 752 A.2d 878,
881 (2000)) (affording “great deference” to state election officials’ interpretation of the
Election Code in determining whether HAVA preempted Pennsylvania’s referendum
requirement).
As noted above, the Commonwealth Court found the Secretary was entitled to
summary relief on this claim as Appellants had not shown any more than the mere
possibility that the certified DREs in theory could be subject to tampering, presenting no
evidence that the challenged devices have failed to accurately record votes or
experienced a security breach in an actual election. Upon Appellants’ request, the
Secretary conducted reexaminations of the DREs with the assistance of an examiner,
who reviewed federal test results of federal independent testing authorities (ITAs),
created test protocols for each DRE, and performed penetration analyses to test the
voting systems’ security. In addition, the Secretary considered the competing opinions
of the parties’ experts and the studies cited by Appellants identifying vulnerabilities in
the security of the certified DREs. Taking all of this information into consideration, the
Secretary determined that the DREs satisfied each of the Election Code’s requirements,
finding their vulnerabilities do not render them necessarily defective and unfit for use in
[J-74-2014] - 28
an election when they have successfully worked to accurately record and tabulate votes
in countless Pennsylvania elections. As Appellants have not alleged the Secretary’s
certification of the DREs was fraudulent, in bad faith, an abuse of discretion or clearly
arbitrary, we decline to disturb her administrative discretion in overseeing the
implementation of the Election Code which is entitled to great deference.
On the same note, Appellants are not entitled to mandamus relief based on their
contention that the Secretary testing standards are inadequate to assess DRE security
from tampering. The writ of mandamus is an extraordinary remedy which exists to
compel official performance of a ministerial act or a mandatory duty. Brown v. Levy,
621 Pa. 1, 4, 73 A.3d 514, 516 n.2 (2013). “Where 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. Pennsylvania State Ass'n of Cnty.
Comm'rs v. Commonwealth, 545 Pa. 324, 330, 681 A.2d 699, 701-702 (1996).
Before a proposed electronic system can be submitted to the Secretary’s
examination, the Election Code provides that the system must have first been
“examined and approved by a federally recognized independent testing authority and
meet[] any voting system and performance and test standards established by the
Federal Government.” 25 P.S. § 3031.5(a). If an electronic voting system satisfies
scrutiny under federal test standards, the system may be examined by the Secretary,
who must file a report “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 hereinafter set forth.” 25 P.S. § 3031.5(b) (emphasis added).
While the Legislature mandated that an electronic voting system must comply
with specific federal testing and performance standards and the requirements set forth
[J-74-2014] - 29
in the Election Code, it does not prescribe a particular testing procedure to govern the
manner in which the Secretary is to perform the examination, but ultimately left this
discretion to the expertise of the Secretary, who is tasked with implementing the
Election Code. Although Appellants demand that this Court direct the Secretary to
adopt more rigorous testing standards to examine DRE security, they have not provided
this Court with an adequate basis to interfere with or control the Secretary’s discretion
as they failed to show the Secretary acted arbitrarily or mistakenly in directing the
certification process.
E. Constitutional Challenges
Lastly, Appellants contend the Commonwealth Court erred in granting the
Secretary summary relief on their constitutional challenges in Counts VII, IX, & X,
claiming the Secretary’s certification of DREs violates Article I, Sections 5 and 26 of the
Pennsylvania Constitution as these devices are susceptible to interference. See Pa.
Const. art. I, § 5 (providing state action “shall P [not] interfere to prevent the free
exercise of the right of suffrage”); § 26 (stating that “[n]either the Commonwealth nor
any political subdivision thereof shall deny to any person the enjoyment of any civil
right”). Citing Reynolds v. Sims, 377 U.S. 533, 555 (1964), in which the Supreme Court
of the United States held the right to vote “cannot be destroyed by the alternation of
ballots, nor diluted by ballot-box stuffing,” Appellants assert the fundamental right to
vote includes the right to have one’s vote counted as cast. Appellants ask this Court to
apply strict scrutiny as the Secretary neither articulated a compelling state interest for
certifying the DREs nor demonstrated their use is the least restrictive means of
furthering a government interest.15
15 When a statute significantly interferes with the exercise of a fundamental right, such a
statute “will be upheld only if it is necessary to promote a compelling state interest and
(continuedP)
[J-74-2014] - 30
In addition, Appellants claims the Secretary’s certification of the DREs violates
Article VII, Section 6 which provides that “[a]ll laws regulating the holding of elections by
the citizensP shall be uniform throughout the State.” Pa. Const. art. VII, § 6. As
Pennsylvania counties may choose to utilize voting systems with or without voter-
verified ballots, Appellants claim that individuals who vote on DREs will be harmed as
their votes will not be weighed equally with those who vote on systems with software-
independent records.
While the Secretary acknowledges that the right to vote is fundamental, the
Secretary argues that this principle does not by itself require strict scrutiny of Appellants’
claims. As there must be substantial governmental regulation to ensure that elections
are fair, honest, and orderly, the Secretary asserts that the Commonwealth Court has
applied a “gross abuse” standard to review claims challenging the constitutionality of
election statutes. In re Nomination Papers of Rogers, 908 A.2d 948, 954 (Pa. Cmwlth.
2006) (single judge opinion). As such, the Secretary claims that election regulations
should be found constitutional if they are “reasonable, neutral, and do not work a severe
restriction on the right to vote.” Secretary’s Brief, at 56-57 (citing Weber, 347 F.3d at
1106). The Secretary argues Appellants have failed to show the certification and use of
the DREs directly interferes with the right to vote as there is no evidence that any
Pennsylvania county using DREs had experienced lost or miscounted votes, tampering
of their election result, or malfunction preventing voters from casting their vote.
Moreover, the Secretary rejects Appellants’ claim that the certification of DREs
violates Article VII, Section 6. While this constitutional provision requires uniformity of
elections, the Secretary asserts that the Constitution does not require the Legislature to
(Pcontinued)
is narrowly tailored to effectuate that state purpose.” Khan v. State Bd. of Auctioneer
Examiners, 577 Pa. 166, 184, 842 A.2d 936, 947 (2004) (citations omitted).
[J-74-2014] - 31
limit the number of types of voting systems that can be simultaneously certified for use
as it “permit[s] the use of voting machines, or other mechanical devices for registering
or recording and computing the vote, at all elections or primaries, in any county, city,
borough, incorporated town or townshipP.” Pa. Const. art. VII, § 6. The Secretary also
emphasizes that Appellants have not presented evidence to show that DREs are more
susceptible to interference, fraud, or error than any other voting system. Noting the
Election Code is applied uniformly to DREs and optical scanners, the Secretary asserts
that both types of voting systems are subject to the same examination and certification
process and the same statutory protections, such as a recanvass or recount.
Although this Court has acknowledged that the right to vote is fundamental and
“pervasive of other basic civil and political rights,” Bergdoll v. Kane, 557 Pa. 72, 85, 731
A.2d 1261, 1269 (1999) (citation omitted), the state may enact substantial regulation
containing reasonable, non-discriminatory restrictions to ensure honest and fair
elections that proceed in an orderly and efficient manner. In re Nader, 588 Pa. 450, 465,
905 A.2d 450, 459 (2006) (finding statute placing restrictions on candidates’ eligibility
was an “eminently reasonable” regulation which was rationally related to the
Commonwealth’s interest in ensuring honest and fair elections). Cf. Burdick v. Takushi,
504 U.S. 428, 434 (1992) (stating “when a state election law provision imposes only
reasonable, nondiscriminatory restrictions upon the First and Fourteenth Amendment
rights of voters, the State's important regulatory interests are generally sufficient to
justify the restrictions”) (quotation marks omitted).
We find persuasive the decisions of federal circuit courts that have held that
DREs that register votes electronically without a voter-verified ballot do not severely
restrict the right to vote. As mentioned supra, the Ninth Circuit emphasized in Weber
that all balloting systems are imperfect; although DREs have many significant benefits
[J-74-2014] - 32
in promoting voter turnout, offering an accurate and cost-effective method, presenting a
user-friendly display, and eliminating ballot ambiguity problems exhibited by traditional
paper ballots, DREs are vulnerable to programming errors and may make fraud more
difficult to detect. Weber, 347 F.3d at 1106. However, the Ninth Circuit emphasized
that state officials have the power to substantially regulate the election process as it is
“the job of democratically-elected representatives to weigh the pros and cons of various
balloting systems.” Id. at 1107. Refusing to interfere with this discretion, the Ninth
Circuit found that “[s]o long as their choice is reasonable and neutral, it is free from
judicial second-guessing.” Id. Cf. Hennings v. Grafton, 523 F.2d 861, 864 (7th Cir.
1975) (providing that “[v]oting device malfunction [and] the failure of election officials to
take statutorily prescribed steps to diminish what was at most a theoretical possibility
that the devices might be tampered with ... fall far short of constitutional infractions”).
In claiming the uniformity requirement of Article VII, Section 6 is violated,
Appellants do not assert that counties should be required to employ a single kind of
voting system throughout the Commonwealth. Instead, Appellants’ argument sounds in
equal protection principles as they allege that voters in counties that utilize DREs are
less likely to have their votes counted accurately that those voters who use systems
with voter-verified ballots. Citing to Black v. McGuffage, 209 F. Supp. 2d 889 (N.D. Ill.
2002), Appellants suggest that the Secretary’s certification of the DREs is
unconstitutional as it “arbitrarily and unnecessarily values some votes over others.”
Appellants’ Brief at 54 (quoting Black, 209 F. Supp. at 899).
Even if we overlook the fact that Appellants never raised an equal protection
claim in their Petition for Review, we reiterate that Appellants have presented no
evidence to suggest that DREs are any less accurate than any other voting system.
Appellants’ reliance on Black is misplaced; the federal district court in Black denied
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preliminary objections seeking dismissal of the action as the plaintiffs had sufficiently
stated a federal Equal Protection claim in presenting voting statistics showing that
voters in jurisdictions using punch card systems and optical scan systems without error
notification features were “statistically less likely to have their votes counted.” Black,
209 F. Supp. at 899. In contrast, in this case, Appellants were given the opportunity to
develop a full record to prove their claim that the DREs’ accuracy rates were inferior to
those voting systems which they claim to be tamper proof. After ample discovery,
Appellants failed to substantiate any of the alleged deficiencies in DRE accuracy.
As a result, we find no merit in Appellants’ claim that the Secretary’s certification
of the DREs violated the fundamental right to vote or resulted in disparate treatment of
any group of voters. As the Election Code bestows upon the Secretary the
responsibility to choose between several voting systems with varying advantages and
disadvantages, we see no reason to interfere with the Secretary’s discretion in certifying
the DREs at issue absent a showing that the decision was unreasonable or
discriminatory.
III. Conclusion
For all of the aforementioned reasons, we conclude the Commonwealth Court did
not err in granting the Secretary’s petition for summary relief. In particular, we find the
Secretary exercised proper discretion in determining that the certified DREs satisfy the
requirements for electronic voting systems set forth in the Election Code and the use of
the DREs does not violate Appellants’ fundamental right to vote as embodied within
Article I, Section 5 of the Pennsylvania Constitution or the uniformity requirement in
Article VII, Section 6 of the Pennsylvania Constitution. Thus, we affirm the
Commonwealth Court's order.
Former Chief Justice Castille and Former Justice McCaffery did not participate in
the decision of this case.
[J-74-2014] - 34
Mr. Chief Justice Saylor, Messrs. Justice Eakin and Baer and Madame Justice Todd
join the opinion.
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