The state Supreme Court on Wednesday heard arguments as to whether electronic voting machines that do not produce simultaneous paper records of each vote cast violate the Pennsylvania Election Code. The 24 petitioners in the matter, whose case was argued by Michael Daly of Drinker Biddle & Reath, are seeking a declaratory judgment that would direct Carol Aichele, the secretary of the commonwealth of Pennsylvania, to decertify the direct-recording electronic voting systems. Before the justices, Daly contended the direct-recording electronic (DRE) machines do not provide a permanent physical record of each vote cast, as the code mandates. Although the machines can print records on request, Daly explained to the court that neither the printed records nor the electronic records satisfied the code’s requirement. Daly highlighted the petitioners’ argument that the digital records couldn’t be considered physical records since they were software-dependent, and the data could be altered or used for a fraudulent purpose without detection. He added that the machines were “utterly incapable” of verifying that a vote was cast the way the voter intended it to be.
Chief Justice Ronald D. Castille asked Daly why the records kept by the DREs did not constitute physical records. Daly restated that the digital data stored on the units’ memory cards were not legally physical or permanent and could also be easily tampered with.
“Are there any tamper-proof memory cards?” Castille asked. “No, your honor,” Daly responded. “Why not?” “Because you can tamper with them.” After laughter on the bench and in the courtroom subsided, Daly explained that balloting through any digital medium is susceptible to hacking.
Daly claimed that the state’s General Assembly has a distrust of electronic voting and in 1980, mandated that electronic votes be subject to recounts to ensure accuracy. Daly added, however, that DREs cannot produce anything that could be used for a recount.