HARRISBURG – The Commonwealth Court of Pennsylvania recently ruled that legal action to prohibit electronic voting machines from being used in Northampton County and other Pennsylvania counties may proceed.
On Oct. 18, Commonwealth Court Judge P. Kevin Brobson, a Republican candidate for the upcoming Supreme Court of Pennsylvania election, plus judges Patricia McCullough and Michael Wojcik, collectively ruled to permit a petition looking to prevent the state from using the ExpressVote XL voting machine.
Non-profit groups National Election Defense Coalition and Citizens for Better Elections, non-partisan organizations pursuing greater election security, plus a dozen Pennsylvania voters filed a petition challenging the 2018 decision to allow the ExpressVote XL to be used for electronic voting statewide in Pennsylvania.
The petitioners claimed the machines and the software running them are able to be manipulated, violated the privacy needed for conducting elections and referenced technical problems when the ExpressVote XL machines were first utilized in November of 2019.
The petition argued that the state should prohibit use of the ExpressVote XL machine, “on the grounds that it is insecure, unreliable, inaccessible to users with disabilities, and not remotely compliant with state ballot requirements, in violation of multiple provisions of the Pennsylvania Election Code and of voters’ rights under the Pennsylvania Constitution.”
Two years ago, when Secretary Kathy Boockvar led the Pennsylvania Department of State, the agency threw out a similar petition wanting the ExpressVote XL to be decertified for use by Pennsylvania voters. The Department of State found the petitioners’ arguments to lack legal standing and that the claims against the ExpressVote XL machine were unfounded.
Boockvar was appointed to her post by Gov. Tom Wolf, a Democrat, and resigned last February.
In the instant matter, the petitioners countered that Boockvar’s approval of the electronic voting machines were both fraudulent and in bad faith.
In response, counsel for the Department of State and Boockvar filed preliminary objections to the petition, countering that the advocates “failed to make factual allegations about the security of the machines that, if true, would constitute a violation of the election code.”
But according to the Commonwealth Court, it is yet to be seen whether the petitioners’ arguments are true.
“Upon review, we agree with the Secretary that petitioners must demonstrate that the Secretary’s decision to certify the ExpressVote XL machines under Sections 1107-A(1) and (11)-(13) of the Election Code was ‘fraudulent, in bad faith, an abuse of discretion or clearly arbitrary’ in order to succeed on their claims arising out of those provisions,” Brobson said.
“Nonetheless, based on the averments outlined in the petition and the reasonable inferences deduced therefrom and resolving all doubt in favor of petitioners, it is unclear as a matter of law at this juncture that her decision to certify the ExpressVote XL machines as complying with those provisions at issue was not ‘fraudulent, in bad faith, an abuse of discretion or clearly arbitrary.’ As further factual development is necessary to analyze the Secretary’s certification decision in this regard, we overrule the Secretary’s preliminary objection raising a demurrer to the Election Code violations asserted in Counts I-IV of the Petition.”
Commonwealth Court of Pennsylvania case 674 M.D. 2019
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com