Pennsylvania

Pennsylvania doesn’t appear to have a backup plan if a federal lawsuit succeeds in getting at least one voting system banned before the presidential election. U.S. District Judge Paul Diamond pressed Secretary of State Kathy Boockvar Tuesday on what might happen if he orders her to decertify the ExpressVote XL – the machine used by nearly 2 million voters in Philadelphia, Northampton and Cumberland counties – and if he applies his order to other devices. “I can’t overstate how much chaos would ensue, frankly,” Boockvar said. County election directors already are dealing with the state’s first major election law changes in decades amid the higher turnout that comes during a presidential election, she said. And when Diamond asked Boockvar how counties would proceed if he barred them from using the ExpressVote XL, she didn’t have an answer. “I don’t know how that would work,” she said. “But there would have to be some ability for voters to vote.”

Pennsylvania’s top elections official spent hours in federal court Tuesday, defending the certification of voting machines being used by Philadelphia and two other Pennsylvania counties, including one where problems led to undercounted returns in a race in November. The hearing in federal court could help determine how 17% of Pennsylvania’s registered voters cast ballots in the April 28 primary election, as well as in November, when the state is expected to be one of the nation’s premier presidential battlegrounds. It comes after a two-year push by Gov. Tom Wolf to get counties to switch to paper-based voting systems ahead of this year’s presidential election, a move he frames as a crucial election security bulwark against hacking. For part of her three-plus hours on the stand, Secretary of State Kathy Boockvar sought to show that no element of a federal court agreement in 2018 specifically outlawed certification of the machine in question, the ExpressVote XL touchscreen system. She also testified that certification of the ExpressVote XL touchscreen system had been well underway during talks to settle the lawsuit.

More than 2 million voters in three counties will remain in limbo a bit longer after a voting machine lawsuit changed course late Friday. Commonwealth Court Judge Kevin Brobson had scheduled a hearing Tuesday over whether the ExpressVote XL should be shelved for Pennsylvania’s nominating contest April 28, while the court fully considered the case. But late Friday afternoon, the plaintiffs withdrew their motion for a preliminary injunction. They say they’ll instead ask the court to fast-track the lawsuit – but not when that might happen. The change follows a hearing Thursday where the Pa. Department of State’s lawyers said a court action intended to be temporary could have permanent effects in this case. If counties buy and implement new voting machines to comply, they wouldn’t be in a position to switch back to the XL if the final decision later upholds the machine’s certification, attorney Michele Hangley said.

A federal judge on Friday ordered a month-long delay in a case that seeks to bar the use of a specific voting machine in the upcoming presidential primary. Hearings were to begin Tuesday in U.S. District Court in Philadelphia to determine whether the ExpressVote XL touchscreen tabulator violates a legal settlement that set higher standards for election security in Pennsylvania. Philadelphia, Northampton and Cumberland counties selected the XL as part of an election system update required of all Pa. counties by the end of 2019. The delay ordered by the judge leaves the counties in limbo. Officials from the counties and the Pa. Department of State say shelving the XL and shifting to different voting systems so close to the election would create chaos for voters. They say plaintiffs could and should have acted sooner — and U.S. District Judge Paul Diamond agreed with that point in the order issued Friday.  A key issue in Diamond’s decision to delay the next hearing until Feb. 18 is the potential that one of the plaintiffs attorneys, Ilann Maazel, could be called as a witness by the DoS. If the state insists on calling Maazel, Diamond said he would remove the lawyer from the case. The delay, the judge said, is intended to give the plaintiffs time to prepare new counsel.

Cumberland County received some of its new voting machines this week, the same machines that are the subject of state and federal lawsuits and that experienced mistabulations in Northampton County in the last election. Cumberland and Northampton counties, along with Philadelphia, are in limbo regarding the current or future use of the ExpressVote XL, a product of Election Systems and Software. Cumberland County received the first shipments of its 400-machine order this week, according to Bethany Salzarulo, director of the county’s elections bureau. Salzarulo said she and her staff were aware of the Northampton issues, which officials there blamed on ES&S not adequately communicating the necessary testing procedures to elections staff. Proper testing would have caught the errors well before election day, Salzarulo said, something Cumberland County staff is prepared to do regardless of ES&S.

“They are insecure and administration panels are easily opened and tampered with.” Attorney Leslie Grossberg is talking about the ExpressVoteXL voting machines. The machines used in Northampton County malfunctioned last November causing a paper ballot recount. Grossberg’s clients, voting security groups, recently filed an injunction with the Court of Common Pleas to block the XL in 2020. The groups cite immediate and irreparable harm to the election. “Decertification of the ExpressXL is the goal,” Grossberg said. In December the machines, also used in Philadelphia, received a vote of no-confidence from the Northampton County Election Commission Board.  A state hearing is set that could decide to keep or toss the XL.

Warning of immediate and irreparable harm to the election system, voting security advocates asked a Pennsylvania court to block the use of troubled voting machines in Northampton County and elsewhere in the 2020 elections. Leading a group of Northampton County and Philadelphia voters in a lawsuit over the machines, the National Election Defense Coalition and Citizens for Better Elections filed a motion Friday in Commonwealth Court seeking a preliminary injunction requiring the state to decertify the ExpressVote XL electronic voting system for the April primary and November general election. Citing new information from voters who encountered difficulty using the machines last year and a vote of “no confidence” in the ExpressVote XL by Northampton County election commissioners, the advocates said there is “no way to repair voters’ trust in the machines.” “If voters do not trust the machines, they cannot trust the outcome of the election,” the advocates said. “If that is to happen, the entire state of democracy starts to crumble under the weight of suspicion, distrust and frustration.”