“Great Victory” in Challenge to Use of Systems in 56 Counties Statewide

Doylestown: The Coalition for Voting Integrity (CVI) joins the law firm of Drinker Biddle in announcing significant progress in a landmark voting rights lawsuit in Pennsylvania.

A Pennsylvania court held late today that voters have a right under the commonwealth’s constitution to reliable and secure voting systems and can challenge the use of electronic voting machines “that provide no way for Electors to know whether their votes will be recognized” through voter verification or independent audit. [Click here for Court opinion.]

The ruling by the Commonwealth Court allows the continuation of a suit filed last year by 26 individual Pennsylvania voters. including CVI members in four counties, against the Secretary of State that challenged the certification of Direct Electronic Voting systems (DREs) used in 56 counties across the state.

"This is a great victory for Pennsylvania voters,” said Mary Kohart, a partner at Drinker Biddle & Reath LLP, one of the lawyers representing the group of voters. The case, which ultimately seeks the decertification of the DREs, was also brought by the Public Interest Law Center of Philadelphia (PILCOP) and Chester County attorney Marian K. Schneider.

The 4-3 decision was sharply critical of the Pennsylvania Secretary of State’s actions in certifying the DREs. Judge Rochelle Friedman, who authored the majority opinion, noted the certification was the result of “deficient examination criteria” which “do not approximate those that are customary in the information technology industry for systems that require a high level of security.”

“Because Electors have no way of knowing whether their votes will be honestly counted by DREs that are not reliable or secure and that provide no means for vote verification or vote audit,” the voters sufficiently raised a violation of the Pennsylvania constitution in their suit, the court declared.

“Across the country, both state legislatures and Congress are realizing that DRE voting systems cannot be trusted,” said Michael Churchill, a lawyer with PILCOP. “More and more states are requiring optical scan paper ballots that voters mark directly or through a ballot-marking device.”

Procedurally, the court’s decision overruled the Secretary of State’s 16 preliminary objections against the voter’s August 2006 complaint. The objections claimed that the voters had no legal right to proceed with their case and no legal right to obtain the relief that they sought.

In the voters’ complaint, they alleged that the DREs failed during elections in Pennsylvania and in other states by losing votes, registering votes for one candidate when the voter was attempting to vote for another candidate; causing high “undervote” rates; failing to register votes when the ballot contained only one question; counting votes twice; failing to print “zero tapes” to demonstrate that no lawful votes were stored on the machine prior to the election; printing “zero tapes” after votes had been cases; reporting phantom votes and other irregularities.

Schneider noted that last fall’s elections across the country showed the unreliability of the machines. “The 2006 elections demonstrated that DREs repeatedly failed by breaking down, switching votes, losing votes and not providing the security necessary for a functional democracy,” she said.

Holly Jacobson, co-director at Voter Action, noted that good alternatives exist to the unreliable electronic voting machines: “Paper balloting, with ballot marking devices for the disabled, is a more secure and accountable option, which is why states like Michigan and New Mexico and others, in addition to hundreds of counties around the country, switched in time for last November’s elections.”

Kohart noted that in light of today’s court ruling so clearly establishing the law, “We hope that the Secretary will think about a quick settlement of this case.”

Drinker Biddle & Reath LLP, a full-service national law firm established in 1849, recently announced its combination with the more than 170 lawyers at Chicago-based Gardner Carton & Douglas. The merger, effective in January 2007, created a firm of more than 630 lawyers in 12 offices nationwide. For more information, please visit www.drinkerbiddle.com.

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On background:

Opening of Drinker Biddle press release announcing the suit on August 15, 2006:

Pennsylvania Voters File Suit to Halt Use of Touch-Screen Electronic Voting Systems in November; Cite Machines’ Vulnerability to Hacking, Inability to Verify Votes

PHILADELPHIA -- A nonpartisan and diverse group of Pennsylvania voters filed a lawsuit today in Commonwealth Court to halt the use of electronic voting machines that do not create a permanent physical record of each vote. The lawsuit, the most comprehensive yet filed against electronic voting in Pennsylvania, alleges that the Secretary of State’s certification of such electronic voting machines violates the state’s Election Code and the state’s Constitution.

The plaintiffs in the suit – numbering more than a dozen from around the state – include J. Whyatt Mondesire, president of the NAACP’s Philadelphia Branch; Susanna Staas, former Chester County Republican Committeewoman; the Rev. James Moore, president of the Black Clergy of Philadelphia and Vicinity; Rob McCord, chairman of the Eastern Technology Council; and Janis Hobbs-Pellechio, volunteer for the Bucks County group Coalition for Voting Integrity.

If the voter plaintiffs prevail in their request for a preliminary injunction, a total of 57 affected counties could still hold their November elections using paper ballots with optical scan readers.

“The very integrity of the election process is at stake here,” said Mary Kohart, lead attorney for the plaintiffs and partner at law firm Drinker Biddle & Reath LLP. “In elections using these computerized voting systems, the machines can be subject to tampering and malfunctions where there is no independent record allowing either voters to verify their own votes or election officials to recount all votes if necessary.”

The complaint details numerous breakdowns and loss of votes by machines that have been certified for use in Pennsylvania by the Secretary of State. Incidents include the loss of votes in four precincts in Berks County last year, the 10,000 votes in three Pennsylvania counties that were not counted in the 2004 Presidential election, and the 200 machines in Philadelphia that experienced problems in the May 2006 primary. The complaint also details examples of lost votes in elections around the country from electronic voting machines.

“The General Assembly has specified that electronic voting machines must be absolutely accurate, they must be reliable and they must have a ‘permanent physical record’ before they can be used in Pennsylvania,” said Michael Churchill, co-counsel for the plaintiffs and attorney with the Public Interest Law Center of Philadelphia (PILCOP). “With the all-electronic voting systems certified by the Secretary of State, it’s impossible to ensure all votes are recorded and counted as intended by the voters.”

Marian K. Schneider, also co-counsel for the voter plaintiffs, noted that this issue has broad implications. “The integrity of the voting process is an issue that concerns us all, regardless of ideology or political party affiliation,” Schneider said. “The changeover to paperless machines, however originally well-intended, threatens to undermine our democracy. Now is the time to ensure that every vote counts and every vote is counted.”