Suit filed in Pa. court challenges widely used electronic voting machine

The latest lawsuit claims 11 violations of Pa.’s state constitution and election code

• Emily Previti/PA Post
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  Emily is a reporter for WITF who’s been covering voting and elections since July 2019 as part of her former role with statehouse accountability news organization PA Post. She was the senior reporter for statewide public media collaboration Keystone Crossroads. Previously, she covered city hall for PennLive/The Patriot-News (Harrisburg, Pa.), was a watchdog and city hall reporter at The Press of Atlantic City and reported for the Northwest Herald. She is a graduate of the University of Pennsylvania.
  
  See other articles by Emily Previti for WITF.

 AP Photo/Matt Rourke

Shown is a paper ballot during a demonstration of the ExpressVote XL voting machine at the Reading Terminal Market in Philadelphia, Thursday, June 13, 2019.

HARRISBURG – The Pennsylvania Department of State is facing another lawsuit demanding decertification of the controversial ExpressVote XL voting machine.

In addition to conflicting with Pa.’s election code, the XL’s design violates voters’ rights under the state constitution to cast a secure and secret ballot, according to the 228-page lawsuit filed in Commonwealth Court late Thursday by the National Election Defense Coalition, Citizens for Better Elections and 13 individual Pa. voters.

The filing comes one day after Election Systems & Software announced the findings of its investigation into problems – including incorrect vote counts in certain races – with XL machines used by Northampton County in the November general election.

In addition to Northampton’s tabulation problems, voters there and in Philadelphia, where the machine also debuted, reported other complaints, including over-sensitive touchscreens and excessively long lines. Those experiences are raised in the new filing as proof of the machine’s alleged deficiencies.

“No audit or recount can address the problem of voters who decide not to vote due to frustration or long lines caused by machine failures, or the poor performance of the machines,” the suit notes.

Outgoing Northampton Councilman Robert Werner is one of five voters from that county named as plaintiffs in the case. Eight Philadelphians are listed, in addition to two groups behind the failed bid to get the XL decertified last summer.

Privacy, access concerns

The lawsuit filed Thursday alleges the XL compromises voter anonymity because it stores ballots chronologically, so an election official could figure out which ballots belong to individual voters. Other systems avoid that possibility by letting paper ballots fall at random into a large, secure bin after being scanned, according to the complaint.

Anonymity is also compromised, the suit says, by the process a voter must go through if the voters prints their ballot and spots a mistake. In this case, a poll worker must get involved to restart the voting process – and gets full view of the voter’s selections while doing so.

Security concerns are raised in the lawsuit, too, including voter access to the device’s control panel. Voters draw a curtain to shield them while using the XL, but it also obscures the device’s control panel — which contains two open USB ports and the memory stick used to transfer voting data off the machine. The plaintiffs say that setup gives cover to someone who might try to tamper with the lock — which they claim is relatively easy to pick — and swap memory sticks or otherwise compromise data integrity.

And the machines don’t allow equal access for all voters for a host of reasons, the complaint alleges.

For example, the audio assistance feature does not announce a candidate’s party affiliation, nor does it provide an opportunity for voter verification at the very end. Visually impaired voters face a range of obstacles that prevent them from verifying their ballot before casting, such as the tiny font size of the printout and the display case surrounding it, according to the lawsuit.

Voter verification

Some of the claims raised in the lawsuit filed Thursday overlap with those central to a separate case filed in federal court by former Green Party presidential candidate Jill Stein.

Both suits say voters can’t verify that barcodes printed by the XL reflect their intended choices. While the XL prints out a voter’s selections in plain text, those selections are compiled into a barcode that is scanned to record the vote. In effect, the plaintiffs say there’s no way for a voter to confirm that a barcode matches the plain text ballot selections.

In a response to the Stein suit, the state says Stein’s camp never specifically objected to systems using barcodes during settlement negotiations — and notes that voters can confirm their choices by reading the plain text, which would be available in the event of a post-election audit.

Both sets of plaintiffs also say the XL isn’t using ballots that fit the parameters of Pa.’s election code.

In the Stein suit against DoS case, plaintiffs are petitioning a federal court to reopen the original post-2016 case, charging that the state DoS if failing to adhere to the settlement terms.

The lawsuit filed Thursday is working off a broader set of state laws, according to attorney Ron Fein of Free Speech for People.

“That provides us to address a wider range of technical and structural deficiencies,” Fein said Friday. “We are able to raise more violations under state laws and the state constitution.”

In Thursday’s court filing, plaintiffs note another verification issue with the XL that hasn’t been raised by the Stein plaintiffs: the XL scans and tallies a voter’s choices before presenting them for verification. ES&S spokeswoman Katina Granger said the XL does not commit a voter’s selections to permanent memory until after a voter verifies and casts their paper ballot. But the plaintiffs question how voters who detect an error at that stage can verify their initial, erroneous choices are actually erased.

All other systems certified in the commonwealth don’t tally anything until after voters have verified and cast their ballots, the lawsuit says.

Points made in Thursday’s filing also overlap with the petition that challenged the state’s certification of the XL last summer.

DoS officials dismissed the majority of the issues raised in that petition, saying they amounted “to purely legal arguments” that shouldn’t be addressed through the petition and ensuing re-examination process, noted Kevin Skoglund of Citizens for Better Elections.

“They said themselves those issues … were a matter of law,” Skoglund said Friday. “So, let’s go to court and discuss them. That’s what we’re doing.”

The Department of State declined comment.

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