HARRISBURG – A federal judge has dismissed breach of contract litigation from Fulton County, its Board of Elections and two of its Commissioners against Dominion Voting Systems, over the decertification of the County’s voting systems by the Pennsylvania Department of State in July 2021.
On Aug. 22, U.S. District Court for the Middle District of Pennsylvania Judge Sylvia H. Rambo closed the case from Fulton County, the Fulton County Board of Elections and Commissioners Stuart L. Ulsh and Randy H. Bunch, lodged against Dominion Voting Systems, Inc. and U.S. Dominion, Inc.
“In August 2019, Dominion Voting entered into a written agreement with Fulton County to provide the county with voting system services and software for conducting elections. Dominion Voting’s responsibilities under the Agreement included delivering Fulton County its voting system, services, and licenses described therein. The Agreement’s term was to continue through Dec. 31, 2026, unless terminated earlier or extended. Fulton County was permitted to terminate the Agreement in the event that the system provided by Dominion Voting did not obtain Pennsylvania voting system certification,” Rambo said.
“The Agreement’s terms placed restrictions on Fulton County’s use of the leased hardware and licensed software provided by Dominion Voting. The Agreement prohibited Fulton County from (i) transferring or copying onto any other storage device or hardware, or other copying of the software, in whole or in part, except for the purpose of system backup; (ii) reverse engineering, disassembling, decompiling, deciphering or analyzing the software in whole or in part; and/or (iii) altering or modifying the software in any way, in whole or in part.”
The plaintiffs then received the voting machines more than a year before the 2020 Presidential Election, at which point they went into active use.
“In January 2019, Dominion provided Fulton County with the hardware and software which was subsequently certified by the Commonwealth of Pennsylvania as complying with its elections code and by the United States Election Assistance Commission as meeting federal voting system requirements. Fulton County began using the Voting System in April 2019, and continued to use it during the Nov. 3, 2020, general election. In December 2020 and February 2021, Fulton County permitted Wake TSI, a third-party consultant, to access and inspect the Voting System, and to make copies of directories, log files and other information therein,” Rambo stated.
“Thereafter, the Pennsylvania Department of State decertified Fulton County’s future use of the Voting System in July 2021, explaining, ‘as a result of the access granted to Wake TSI, Fulton County’s certified system has been compromised and neither Fulton County; the vendor, Dominion Voting Systems; nor the Department of State can verify that the impacted components of Fulton County’s leased voting system are safe to use in future elections.’ The Department of State’s decertification decision led to separate state court litigation by Fulton County in the Commonwealth Court, and a contempt proceeding before the Supreme Court of Pennsylvania after Fulton County defied its order not to allow further inspection of the Voting System during the pendency of the Commonwealth Court suit. It is unclear whether the underlying suit remains pending.”
The plaintiffs initiated this suit by the filing a complaint in the Fulton County Court of Common Pleas in September 2021, which was then removed to the U.S. District Court for the Middle District of Pennsylvania by the defendants in October 2022 – who then motioned to have the complaint dismissed for failure to state claims upon which relief could be granted.
The Court granted the initial dismissal in September 2023, on the grounds that “each plaintiff, except for Fulton County, lacked standing because none were parties to the Agreement” and further, that “the plaintiffs’ own pleaded allegations evinced that any breach of contract or warranty failed as a matter of law because it was Fulton County, or its agents, who breached the Agreement, causing decertification, rather than any act on the part of defendants.”
When the plaintiffs filed an amended complaint last October, the defendants again moved for dismissal, on identical grounds as cited in their first dismissal motion.
Rambo noted that the only notable substantive difference is that, where the Court previously decided that only plaintiff Fulton County would have standing as a party to the Agreement to bring this suit and stated the other plaintiffs lacked standing, the current iteration of the complaint names only those plaintiffs that this court already decided lacked standing and omits Fulton County as a plaintiff.
“Even if each of the plaintiffs in this case were parties to the contract and suffered a concrete and particularized harm, the amended complaint is again entirely devoid of non-conclusory allegations that it was the defendants who caused them harm. Instead, the amended complaint evinces that it was the conduct of Fulton County and its agents that caused the Voting System to be decertified by the Pennsylvania Department of State by breaching its contract with the defendants. In relevant part, the amended complaint states, ‘in mid-2021, the Secretary of the Commonwealth of Pennsylvania ‘decertified’ the Dominion Voting System machines in Fulton County, purportedly because Fulton County Board of Elections had used ‘a third-party consultant’ to inspect its electronic voting devices as part of Fulton County Board of Election’s inquiry into the integrity of the system’s performance during the 2020 election.’ The amended complaint admits as much when it states that it hired a third-party consultant, ‘Wake TSI,’ which conducted a report into unclear allegations of voting irregularities, despite the Voting System having been previously certified,” Rambo said.
“Further, as defendants note in a footnote, Fulton County was on the receiving end of a contempt order before the Supreme Court of Pennsylvania over its defiance of that Court’s order not to allow inspection of the Voting System during the pendency of Fulton County’s Commonwealth Court litigation against the Secretary of State. In the contempt opinion, the Supreme Court of Pennsylvania stated that the Pennsylvania Secretary of State decertified the Voting System after learning that Fulton County allowed Wake TSI to ‘perform a probing inspection,’ and, in violation of the Court’s order, allowed yet another third party to inspect the Voting System. Due to these deficiencies with standing as to all plaintiffs, the amended complaint will be dismissed, with prejudice, for lack of subject matter jurisdiction.”
U.S. District Court for the Middle District of Pennsylvania case 1:22-cv-01639
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com