Monumental Election Law Decision by President Judge Kevin Brobson – Hopefully Soon To Be Justice Brobson

Today, in a monumental 50 page decision denying Secretary of the Commonwealth Kathy Boockvar’s preliminary objections in National Election Defense Coalition, et al., et al. v. Kathy Boockvar, 674 M.D. 2019 – which involves a challenge to the “certification of the ExpressVote XL electronic voting machines (ExpressVote XL machines) for use in Pennsylvania elections on the basis that the certification violates multiple provisions of the Election Code and impairs Pennsylvania citizens’ rights under the state constitution” – Judge Brobson found that the Petitioners (aka Plaintiffs) had sufficiently pleaded five cause of action against then Secretary Boockvar (now, Acting Secretary Veronica Degraffenreid), with the sixth being moot due to changes in the law, ushered in by the General Assembly’s enactment of Act 77 (see, footnote 8 for a full explanation).

As for some background,

[T]he ExpressVote XL machines are commonly referred to as all-in-one hybrid voting machines, because they combine two tasks—marking a voter’s choices on a piece of paper and tabulating votes from a piece of paper which are more often performed by two separate devices. (Petition ¶¶ 41-42.) On November 30, 2018, the Secretary certified Election Systems & Software’s (ES&S) electronic voting system (EVS), EVS 6.0.2.1, which included the ExpressVote XL machines. (Petition ¶¶ 69, 71.) On July 16, 2019, NEDC and CBE filed a petition (Reexamination Petition) with the Secretary, requesting reexamination of the ExpressVote XL machines based on ten enumerated grounds. (Petition ¶¶ 72-73.) The Reexamination Petition was signed by 200 duly registered electors in Pennsylvania and was filed along with a check for $450. (Petition ¶ 72.)

On September 3, 2019, following a reexamination conducted at the Colorado offices of SLI Compliance, a voting system test lab, the Secretary issued a report titled Report Concerning the Reexamination Results of Election Systems and Software ExpressVote XL (Report).5 (Petition ¶¶ 77-78.) In the Report, the Secretary outright dismissed without consideration by SLI Compliance seven of the ten grounds asserted by NEDC and CBE—identified as claims three through seven, nine, and ten—on the basis that they “amount to purely legal arguments which do not apply to reexamination or certification of an [EVS].” (Petition ¶¶ 80, 82 (quoting Report at 2).) As to the remaining grounds—claims one, two, and eight,—which the Secretary directed SLI Compliance to consider, the Secretary concluded that the ExpressVote XL machines did not violate the Election Code but listed several “additional conditions” that jurisdictions using the machines “must” implement. (Petition ¶¶ 82-83 (quoting Report at 11-126).) Petitioners aver that the Secretary’s position essentially concludes that the ExpressVote XL machines do “not violate the Election Code on the express assumption that jurisdictions using the machine[s] would implement these ‘additional conditions,’” but “[t]he Secretary does not have statutory authority to enforce these ‘additional conditions’” nor “a mechanism in place to enforce the ‘additional conditions’ or penalize counties that do not follow them.” (Petition ¶¶ 84-86.)

Petitioners aver that Philadelphia, Northampton, and Cumberland Counties purchased the ExpressVote XL machines following their certification. (Petition ¶ 87.) Philadelphia and Northampton Counties used the machines in the election on November 5, 2019, but Cumberland County did not because it was not yet in possession of the machines. (Petition ¶ 90.) Petitioners aver that all three counties intended to use the machines as the primary voting machine for the primary and general elections in 2020, which had not yet occurred at the time the Petition was filed, and beyond. (Petition ¶ 92.)

But what concerns were raised by the Petitioners?

Petitioners raise several concerns regarding the ExpressVote XL machines. Specifically, they aver that the ExpressVote XL machines do not provide acceptable ballot security in that the paper path is insecure (Petition ¶¶ 93-127), the administrator access panel is insecure (Petition ¶¶ 128-37), and the “test deck” feature is insecure (Petition ¶¶ 138-48). They also allege that the ExpressVote XL machines fail to provide all voters with the necessary privacy and absolute secrecy in the voting process due to the chronological ordering of ballot cards (Petition ¶¶ 158-74) and the procedures for vote spoliation that require a poll worker to enter the voting booth (Petition ¶¶ 175-202). Petitioners further aver that the Secretary’s reexamination did not resolve the concerns raised in the Reexamination Petition (Petition ¶¶ 248-65) and that the ExpressVote XL machines experienced multiple issues during their use in the November 2019 election in Philadelphia and Northampton Counties, including failure to tabulate votes correctly. (Petition ¶¶ 264-69.)7 Finally, they aver that continued use of the ExpressVote XL machines will cause irreparable harm to the electorate of the affected counties. (Petition ¶¶ 272-76.)

Finding in favor of the Petitioners, Judge Brobson declared:

Petitioners have identified vulnerabilities and deficiencies in the ExpressVote XL machines that they allege render them in violation of Section 1107-A(1), (11), (12), and (13), and Section 1111-A(b) of the Election Code. For instance, Petitioners aver that the machines have the ability to change votes prior to ballot impoundment due to the mechanism of the machines’ single paper path and the manner in which its software and hardware could be manipulated to malfunction. (Petition ¶¶ 93-127.) Petitioners also allege that the ExpressVote XL machines’ administrator access panel, which contains items such as a USB drive containing election results and a “CFLASH card” containing machine software, is readily available to voters while they are hidden from view of the poll workers. (Petition ¶¶ 128-31.) Petitioners allege that, while the administrator access panel is protected by a lock, the locks on every machine in a given county are identically keyed and can be “picked quickly” or accessed via a stolen or copied key across districts for all future elections. (Petition ¶¶ 132-35.) Further, “[d]uring the election on November 5, 2019[,] in Philadelphia, voters took photos of unlocked panels in at least three polling places.” (Petition ¶ 136.) Petitioners also claim that the ExpressVote XL machines’ test deck software, which can “create and submit completely digital ballots for tabulation without using a paper record,” exists on the ExpressVote XL machines during regular operations and, if hacked, has the potential to manipulate votes. (Petition ¶¶ 141, 145, 147.)…

Petitioners further aver that the ExpressVote XL machines were used for the first time in the November 2019 election in Northampton and Philadelphia Counties and that several issues with the ExpressVote XL machines were reported during and after that day, including machines that stopped working or would not start; touchscreens that were too sensitive or not sensitive enough; touchscreens that registered a vote for a candidate or other voting target the voter did not touch and for which the voter did not intend to cast a vote; votes being incorrectly tabulated, resulting in the need to re-scan all ballots using a high-speed scanner; some machines that showed no votes for certain candidates; and entire precincts that reported no votes for certain candidates. (Petition ¶¶ 264-65.)

(emphasis added)

As I have stated in my article Constitutional Rights, Including the Right to Keep and Bear Arms, in the CROSSHAIRS this Upcoming Election, our constitutional rights are in the crosshairs this upcoming election on November 2nd. As such, it is imperative that we elect President Judge Kevin Brobson to the Pennsylvania Supreme Court, Stacey Wallace and Drew Crompton to the Commonwealth Court, and Megan Sullivan to the Superior Court, as these candidates will work tirelessly to ensure that fairness and impartiality is restored to our courts, along with restoring the three, co-equal branches of government by stopping the courts from legislating from the bench.