Nat'l. Election Defense Coalition v. K. Boockvar, Sec'y. of the Com.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

National Election Defense Coalition, :

Citizens For Better Elections, :

Rich Garella, Rachel A. Murphy, :

Caroline Leopold, Stephen Strahs, :

Kathleen Blanford, Sharon Strauss, :

Anne C. Hanna, Raphael Y. Rubin, :

Robert F. Werner, Sandra :

O’Brien-Werner, Thomas P. Bruno, Jr., :

Roger Dreisbach-Williams, and :

Jeff R. Faubert, :

Petitioners :

:

v. : No. 674 M.D. 2019

: Argued: October 15, 2020

Kathy Boockvar, :

Secretary of the Commonwealth, :

Respondent :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge1

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

OPINION BY JUDGE BROBSON FILED: October 18, 2021

Before the Court are the preliminary objections of Respondent Kathy

Boockvar, Secretary of the Commonwealth (Secretary),2 to the amended petition for

review (Petition) filed in this Court’s original jurisdiction by Petitioners National

Election Defense Coalition (NEDC), Citizens For Better Elections (CBE), Rich

1

This case was assigned to the opinion writer before January 4, 2021, when Judge Brobson

became President Judge.

2

On February 8, 2021, after the Petition was filed with this Court, Veronica Degraffenreid

was appointed Acting Secretary of the Commonwealth. See Department of State website

at https://www.dos.pa.gov/about-us/pages/secretary-of-the-commonwealth.aspx (last visited

Oct. 15, 2021).

Garella, Rachel A. Murphy, Caroline Leopold, Stephen Strahs, Kathleen Blanford,

Sharon Strauss, Anne C. Hanna, Raphael Y. Rubin, Robert F. Werner, Sandra

O’Brien-Werner, Thomas P. Bruno, Jr., Roger Dreisbach-Williams, and Jeff R.

Faubert. We now sustain the Secretary’s preliminary objection raising a demurrer

to Count V of the Petition and overrule the remaining preliminary objections.

I. BACKGROUND

The Secretary is charged with the general supervision and administration of

Pennsylvania’s election laws, including the duty “[t]o examine and reexamine voting

machines, and to approve or disapprove them for use in this state, in accordance with

the provisions of [the Pennsylvania Election Code (Election Code)3].”

Section 201(b) of the Election Code, 25 P.S. § 2621(b). Petitioners filed the instant

action against the Secretary, challenging 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.4

A. Petition

1. Petitioners

Petitioners allege that NEDC and CBE are nonprofit groups and that the

remaining Petitioners are members of the Pennsylvania electorate (Individual

Petitioners). (Petition ¶ 5.) The “core missions” of NEDC and CBE “include

helping members of the electorate exercise their right to vote in free and fair

3

Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §§ 2600-3591. The Act of

July 11, 1980, P.L. 600, added Article XI-A to the Election Code, 25 P.S. §§ 3031.1-.20.

4

According to the Petition, Acting Secretary Robert Torres originally certified the

ExpressVote XL machines. (Petition at 3 n.2.) Kathy Boockvar was thereafter appointed Acting

Secretary of the Commonwealth on January 5, 2019, and confirmed by the Senate on

November 19, 2019. (Id.)

2

elections[] and working to ensure that elections be conducted on systems that are

secure, accessible, transparent, and auditable.” (Id.) NEDC and CBE include voting

members of the Pennsylvania electorate within their organizations, including

members located in Philadelphia and Northampton Counties—two counties that

purchased the ExpressVote XL machines following the Secretary’s certification of

them for use in Pennsylvania elections. (Petition ¶¶ 3, 5.) More specifically, NEDC

and CBE have at least one member from these counties who each has “voted in the

November 2019 election where the ExpressVote XL [machines were] first used and

plans to continue to vote in Pennsylvania elections where the ExpressVote XL

[machines] will be used.” (Petition ¶¶ 15, 17.)

The Individual Petitioners live in, and are duly qualified electors of,

Philadelphia and Northampton Counties. (Petition ¶¶ 18-31.) They were required

in the November 2019 election to use the ExpressVote XL machines that are the

subject of this action, and they expect to use them in future elections. (Petition ¶ 32.)

“Each Individual [Petitioner] . . . wants to cast a ballot in future elections, and each

wants their future votes and the votes of all Pennsylvanians to be properly marked,

counted, and tallied,” but they have “concerns over the security and reliability of the

ExpressVote XL” machines. (Petition ¶¶ 33-34.)

2. Certification of the ExpressVote XL Machines

According to the Petition, the 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

3

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]

5

The Report is attached to the Petition as Exhibit B.

6

The Secretary “maintain[ed] the certification . . . subject to . . . additional conditions”

relating to implementation of “proper poll closing and vote record transportation procedures[,]”

“vote summary record instructions” for voters and poll workers, and “poll worker training.”

(Report at 11-12.)

4

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.)

3. The ExpressVote XL Machines’ Use in Pennsylvania Counties

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.)

4. Alleged Violations of the Election Code and the Pennsylvania Constitution

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

5

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.)

Based on the foregoing, Petitioners assert six counts in their Petition, five of

which are currently in dispute.8 The first three counts pertain to alleged security,

7

The Petition contains several errors with regard to how the paragraphs set forth therein

are numbered. Relevant here, the Petition includes one set of paragraphs numbered as 264 and

265, followed by another set of paragraphs numbered as 264 and 265. We note that the first citation

to the Petition in the sentence above thus refers to the first set of paragraphs numbered 264 and

265, and the second citation refers to the second set.

8

With respect to Count V of the Petition, in which Petitioners allege that the

ExpressVote XL machines do not comply with several provisions of the Election Code relating to

ballot formatting requirements, the basis of the Secretary’s preliminary objection that Count V

fails to state a claim for which relief can be granted changed in light of the amendments to the

Election Code. In Count V of the Petition, Petitioners first claim that the ExpressVote XL

machines violate Section 1109-A(e) of the Election Code, 25 P.S. § 3031.9(e) (requiring that

“ballot cards or paper ballots and ballot pages . . . be printed on card or paper stock of the color of

the party of the voter and [that] the appropriate party affiliation or independent status . . . be printed

on the ballot card”). (Petition ¶ 287.) Petitioners also claim that ExpressVote XL machines violate

Section 1004 of the Election Code, 25 P.S. § 2964 (requiring “[a]ll the ballots for the same

election district [to] be bound together in books of fifty, in such manner that each ballot may be

detached and removed separately”). (Petition ¶ 288.) Section 3 of the Act of March 27, 2020,

P.L. 41 (Act 12), however, eliminated these requirements. Petitioners further claim that the

ExpressVote XL machines violate Section 1112-A(b)(2)-(4) of the Election Code,

25 P.S. § 3031.12(b)(2)-(4) (requiring voter to vote by “making a cross (X) or check (✓) mark or

. . . a punch or mark sense mark” either “in the square opposite the name of the candidate” or

“in the appropriate space opposite the names of the candidates”). (Petition ¶ 289.) Section 4 of

Act 12 also expanded the manner in which a voter may indicate a selection; now, a voter must cast

his vote using a cross or check mark, a punch or mark sense mark, or by “otherwise indicating a

selection associated with” the candidate. Finally, Petitioners allege that the ExpressVote XL

machines violate Section 1109-A(a)(2) of the Election Code, 25 P.S. § 3031.9(a)(2) (requiring that

“the first ballot page . . . list in the order that such political parties are entitled to priority on the

ballot, the names of such political parties with designating arrows so as to indicate the voting

square or position on the ballot card where the voter may insert by one mark or punch the straight

6

reliability, and accuracy violations. Count I asserts a violation of

Section 1107-A(12) of the Election Code, 25 P.S. § 3031.7(12), on the basis that the

ExpressVote XL machines do “not ‘[p]rovide[] acceptable ballot security procedures

and impoundment of ballots to prevent tampering with or substitution of any ballots

or ballot cards.’” (Petition ¶ 278 (quoting 25 P.S. § 3031.7(12)).) Count II asserts

a violation of Section 1107-A(13) of the Election Code, 25 P.S. § 3031.7(13), on the

basis that the ExpressVote XL machines “do not routinely and consistently ‘record[]

correctly and compute[] and tabulate[] accurately every valid vote registered.’”

(Petition ¶ 280 (quoting 25 P.S. § 3031.7(13)).) Count III asserts a violation of

Section 1107-A(11) of the Election Code, 25 P.S. § 3031.7(11), on the basis that the

ExpressVote XL machines “are not ‘suitably designed and equipped to be capable

of absolute accuracy.’” (Petition ¶ 282 (quoting 25 P.S. § 3031.7(11)).)

The fourth count pertains to voter privacy and secrecy violations.

Specifically, Count IV asserts a violation of Section 1107-A(1) of the Election Code,

25 P.S. § 3031.7(1), and Article VII, Section 4 of the Pennsylvania Constitution on

the basis that the ExpressVote XL machines do not enable “‘voting in absolute

secrecy[,’] nor do they ‘prevent[] any person from seeing or knowing for whom any

voter, except one who has received or is receiving assistance as prescribed by law,

has voted or is voting.’” (Petition ¶ 284 (quoting 25 P.S. § 3031.7(1)).) Count IV

also asserts a violation of Section 1111-A(b) of the Election Code, 25 P.S.

§ 3031.11(b), “because the ExpressVote XL machines require another person to

party ticket of his choice”). (Petition ¶ 290.) This language was eliminated through the passage

of Section 3 of the Act of October 31, 2019, P.L. 552 (Act 77), and Section 4 of Act 12. At oral

argument before the Court, Petitioners agreed that the amendments mooted the violations of the

Election Code asserted in Count V. Thus, we sustain the Secretary’s preliminary objection and

dismiss Count V of the Petition, which we will not address further in this Opinion.

7

enter the voting booth in order for a voter to exercise the right to spoil a ballot.”

(Petition ¶ 285.)

In Count VI, Petitioners assert a violation of Article I, Section 5 of the

Pennsylvania Constitution, which guarantees free and equal elections and the free

exercise of the right to suffrage. Count VI also alleges a violation of Article I,

Section 26 of the Pennsylvania Constitution, which prohibits the Commonwealth

and any political subdivision thereof from denying a person the enjoyment of any

civil right and discriminating against a person in the exercise of any such right.

Petitioners assert that the Secretary’s certification of the ExpressVote XL machines

and their use in Pennsylvania infringe upon their suffrage rights by “making it likely

that a significant number of votes will not be counted accurately[] or at all,” creating

“the risk that persons for whom the majority of voters have not cast their ballots will

be declared the election winners,” and creating the risk that votes will be “rendered

meaningless or . . . deemed cast for a candidate for whom they did not vote.”

(Petition ¶¶ 294-95, 297.) Petitioners add that their equal protection rights are at risk

because, “while they are compelled to vote in counties using the ExpressVote XL

[machines], other registered voters in Pennsylvania may vote in precincts or counties

using voting systems, such as verifiable paper ballots that are counted by hand or by

optical scanners, that do not suffer from the defects identified in th[e] Petition.”

(Petition ¶ 298.)

5. Relief Sought

By way of relief, in the body of the Petition, Petitioners seek a declaration that

the certification of the ExpressVote XL machines violates the aforementioned

provisions of the Election Code and the Pennsylvania Constitution, and they seek an

order directing the Secretary to decertify the ExpressVote XL machines for use in

8

Pennsylvania. (Petition ¶¶ 10-11.) In their request for relief, they similarly ask this

Court to declare that the ExpressVote XL machines violate the Pennsylvania

Constitution and Election Code, “[e]njoin the Secretary to decertify” the

ExpressVote XL machines for use in Pennsylvania, award Petitioners reasonable

attorney’s fees and costs, and grant any other relief the Court deems just and

appropriate. (Petition at 54-55, “Wherefore” Clause.)

B. Preliminary Objections

In response to the Petition, the Secretary filed preliminary objections. In her

first preliminary objection, the Secretary argues that Petitioners have failed to state

a claim for which relief can be granted as to the Election Code violations asserted in

Counts I-IV of the Petition because Petitioners have not alleged sufficient facts

demonstrating that her certification of the ExpressVote XL machines was fraudulent,

in bad faith, an abuse of discretion, or clearly arbitrary, as is required to be successful

on those claims. In her second preliminary objection, the Secretary asserts that

Petitioners have likewise failed to state a claim for relief under Count VI of the

Petition, because Petitioners have not alleged sufficient facts demonstrating a plain,

palpable, and clear abuse of power that actually infringes on the exercise of their

voting rights with respect to the Secretary’s certification of the ExpressVote XL

machines, as is required to make out their constitutional claims.

The Secretary also contends that Petitioners lack standing with respect to their

alleged Election Code violations in Counts I-IV because they have not alleged an

interest in ensuring compliance with the Election Code that is greater than the

common interest that all electors have in this regard. Moreover, the Secretary asserts

that all counts should be dismissed on the basis that Petitioners failed to join

indispensable parties, specifically Philadelphia, Northampton, and Cumberland

9

Counties, all of which have purchased the ExpressVote XL machines and have a

strong interest in being permitted to use this voting system in upcoming elections.

Finally, the Secretary maintains that Petitioners’ claims are time-barred by

Section 5522 of the Judicial Code, 42 Pa. C.S. § 5522. As a result of these

deficiencies, the Secretary argues that the entire Petition should be dismissed.

II. DISCUSSION

A. Standard of Review

In ruling on preliminary objections, we accept as true all well-pleaded material

allegations in the petition for review and any reasonable inferences that we may draw

from the averments. Meier v. Maleski, 648 A.2d 595, 600 (Pa. Cmwlth. 1994). The

Court, however, is not bound by legal conclusions, unwarranted inferences from

facts, argumentative allegations, or expressions of opinion encompassed in the

petition. Id. We may sustain preliminary objections only when the law makes clear

that the petitioner cannot succeed on the claim, and we must resolve any doubt in

favor of the petitioner. Id. “We review preliminary objections in the nature of a

demurrer under the above guidelines and may sustain a demurrer only when a

petitioner has failed to state a claim for which relief may be granted.” Armstrong

Cnty. Mem’l Hosp. v. Dep’t of Pub. Welfare, 67 A.3d 160, 170 (Pa. Cmwlth. 2013).

B. Relevant Law

1. Election Code

Before addressing the preliminary objections individually, consideration of

the general framework of the law surrounding the certification of EVSs is warranted.

The term “electronic voting system” is defined as “a system in which one or more

voting devices are used to permit the registering or recording of votes and in which

10

such votes are computed and tabulated by automatic tabulating equipment.”9

Section 1101-A of the Election Code, 25 P.S. § 3031.1. Under Section 201(b) of the

Election Code, 25 P.S. § 2621(b), the Secretary has the affirmative duty “[t]o

examine and reexamine voting machines, and to approve or disapprove them for use

in this state.” The Secretary’s determinations about which voting machines to

approve and which voting machines to disapprove must be made “in accordance

with the provisions of [the Election Code]” and “the requirements of

[S]ection 301 of the Help America Vote Act of 2002”10 (HAVA). 25 P.S. § 2621(b).

Section 1105-A of the Election Code, 25 P.S. § 3031.5, relating to examination and

approval of EVSs by the Secretary, sets forth the mechanism for certification and

decertification of EVSs. It provides, in relevant part:

(a) Any person or corporation owning, manufacturing or selling, or

being interested in the manufacture or sale of, any [EVS], may request

the Secretary . . . to examine such system if the voting system has been

examined and approved by a federally recognized independent testing

authority and if it meets any voting system performance and test

standards established by the Federal Government. . . . Any ten or more

persons, being qualified registered electors of this Commonwealth,

may, at any time, request the Secretary . . . to reexamine any [EVS]

theretofore examined and approved by him. Before any reexamination,

the person, persons, or corporation, requesting such reexamination,

shall pay to the Treasurer of the Commonwealth a reexamination fee of

four hundred fifty dollars ($450). The Secretary . . . may, at any time,

in his discretion, reexamine any such system therefore examined and

approved by him. The Secretary . . . may issue directives or instructions

for implementation of electronic voting procedures and for the

operation of [EVSs].

(b) Upon receipt of a request for examination or reexamination of an

[EVS] as herein provided for or in the event he determines to reexamine

9

In order to qualify as an “electronic voting system,” the system also must “provide for a

permanent physical record of each vote cast.” Section 1101-A of the Election Code, 25 P.S.

§ 3031.1.

10

52 U.S.C. § 21081, transferred from 42 U.S.C. § 15481.

11

any such system, the Secretary . . . shall examine the [EVS] and shall

make and file in his office his report, attested by his signature and the

seal of his office, stating whether, in his opinion, the system so

examined can be safely used by voters at elections as provided in [the

Election Code] and meets all of the requirements hereinafter set forth.

If his report states that the system can be so used and meets all such

requirements, such system shall be deemed approved and may be

adopted for use at elections, as herein provided. . . .

(c) No [EVS] not so approved shall be used at any election, and if, upon

the reexamination of any such system previously approved, it shall

appear that the system so reexamined can no longer be used safely by

voters at elections as provided in [the Election Code] or does not meet

the requirements hereinafter set forth, the approval of that system shall

forthwith be revoked by the Secretary . . . and that system shall not

thereafter be used or purchased for use in this Commonwealth.

25 P.S. § 3031.5(a)-(c).

In order to merit approval for use in the Commonwealth, an EVS must satisfy

specific requirements set forth in Section 1107-A of the Election Code.11 See 25 P.S.

§ 3031.7 (listing requirements relating to, inter alia, privacy, security, quality, and

accuracy). The requirements at issue here are set forth in subsections (1), (11), (12),

and (13) of Section 1107-A, which provide:

No [EVS] shall, upon any examination or reexamination, be approved

by the Secretary . . . or by any examiner appointed by him, unless it

shall be established that such system, at the time of such examination

or reexamination:

(1) Provides for voting in absolute secrecy and prevents any

person from seeing or knowing for whom any voter, except one

who has received or is receiving assistance as prescribed by law,

has voted or is voting.

....

(11) Is suitably designed for the purpose used, is constructed in

a neat and workmanlike manner of durable material of good

quality, is safely and efficiently useable in the conduct of

elections and, with respect to the counting of ballots cast at each

11

HAVA imposes more than a dozen additional requirements. See 52 U.S.C. § 21081(a).

12

district, is suitably designed and equipped to be capable of

absolute accuracy, which accuracy shall be demonstrated to the

Secretary . . . .

(12) Provides acceptable ballot security procedures and

impoundment of ballots to prevent tampering with or substitution

of any ballots or ballot cards.

(13) When properly operated, records correctly and computes

and tabulates accurately every valid vote registered.

25 P.S. § 3031.7(1), (11)-(13).

In addition to the secrecy requirement for EVS certification listed in

Section 1107-A(1) of the Election Code above, Section 1111-A of the Election

Code, 25 P.S. § 3031.11, provides the following pertinent information regarding the

instruction of voters using EVSs while maintaining secrecy:

(b) At the polling place on the day of the election, each voter who

desires shall be instructed, by means of appropriate diagrams and a

model, in the operation of the voting device before he enters the voting

booth. If any voter shall ask for further instructions concerning the

manner of voting after entering the voting booth, any election officer

may give him audible instructions without entering such booth, but no

such election officer shall when giving such instructions in any manner

request, suggest or seek to persuade or induce any such voter to vote

any particular ticket or for any particular candidate or other person or

for or against any particular question.

25 P.S. § 3031.11(b) (emphasis added). These provisions serve as the bases for

Petitioners’ Election Code claims herein.

2. Constitutional Provisions

As noted, the instant suit also challenges the certification of the ExpressVote

XL machines on the basis that it violates Sections 5 and 26 of Article I and

Section 4 of Article VII of the Pennsylvania Constitution. Article I, Section 5

provides that “[e]lections shall be free and equal; and no power, civil or military,

shall at any time interfere to prevent the free exercise of the right of suffrage.”

PA. CONST. art. I, § 5. Article I, Section 26 provides that “[n]either the

13

Commonwealth nor any political subdivision thereof shall deny to any person the

enjoyment of any civil right, nor discriminate against any person in the exercise of

any civil right.” PA. CONST. art. I, § 26. Article VII, Section 4 provides: “All

elections by the citizens shall be by ballot or by such other method as may be

prescribed by law: Provided, That secrecy in voting be preserved.” PA. CONST. art.

VII, § 4.

3. Case Law

Also relevant to our analysis are earlier decisions of this Court and the

Pennsylvania Supreme Court relating to a similar attempt to obtain decertification

of a voting system. In 2006, electors filed an action in this Court’s original

jurisdiction against the Secretary, seeking decertification of Direct Recording

Electronic voting systems (DREs) for use in Pennsylvania.12 That lawsuit resulted

in several opinions of interest to our analysis: Banfield v. Cortes, 922 A.2d 36

(Pa. Cmwlth. 2007) (en banc) (Banfield I),13 overruling preliminary objections;

Banfield v. Aichele, 51 A.3d 300 (Pa. Cmwlth. 2012) (en banc) (Banfield II), denying

an application for partial summary judgment filed by the electors; Banfield v. Aichele

(Pa. Cmwlth., No. 442 M.D. 2006, filed October 1, 2013) (Banfield III), granting an

application for summary relief filed by the Secretary; and Banfield v. Cortes,

110 A.3d 155 (Pa. 2015) (Banfield IV), affirming this Court’s order granting the

Secretary summary relief.

In the Banfield litigation, the electors averred that the various certified DREs

failed during elections conducted in Pennsylvania and other states in a variety of

12

The action seeking decertification of DREs was docketed as Banfield v. Cortes,

442 M.D. 2006, which we will generally refer to as the Banfield litigation.

13

The Supreme Court denied permission to appeal by order dated December 16, 2008,

docketed at 70 MM 2007.

14

ways, including losing votes, registering votes for the wrong candidate, causing very

high “undervote” rates, failing to register votes when the ballot contained only one

question, counting votes more than once, reporting phantom votes, failing to record

votes due to programing errors, failing to activate for use, failing to record write-in

votes, and failing in a number of aspects with regard to what the electors refer to as

“zero tapes.”14 Banfield I, 922 A.2d at 40. The electors also averred the DREs

suffered from security issues in that a variety of the models of DREs could be

corrupted in a brief amount of time through unauthorized access. The electors

averred that the Secretary’s certification of DREs resulted from “deficient

examination criteria.” Id. at 41. The electors sought a judgment declaring that the

Secretary had violated the Election Code and the Pennsylvania Constitution and

directing the Secretary to decertify the DREs, establish uniform testing criteria, and

reexamine certain DREs previously certified by the Secretary. In response, the

Secretary filed sixteen preliminary objections, including preliminary objections

based on failure to state a claim for mandamus, failure to join indispensable parties,

lack of standing, and legal insufficiency (demurrer), all of which are relevant to the

matter now before this Court. We addressed those preliminary objections in

Banfield I, overruling them all.

As to the Secretary’s preliminary objection that we should dismiss the

electors’ petition because it sought mandamus relief but failed to state a claim for

which mandamus could be granted, we explained:

14

“DREs are devices that display ballots and allow a voter to make choices with a push

button, dial or touch screen and then cast the vote. DREs are supposed to record the vote on an

electronic storage device in the form of digital markings.” Banfield I, 922 A.2d at 40. In essence,

they are paperless systems, meaning they “produce no contemporaneous external paper record that

would allow voters to verify that their votes were recorded accurately.” Id.

15

Mandamus is an extraordinary remedy designed to compel

official performance of a ministerial act or mandatory duty where there

exists a clear legal right in the plaintiff and a corresponding duty in the

defendant and where there is no other adequate remedy at law. County

of Allegheny v. [Cmwlth.], . . . 544 A.2d 1305 ([Pa.] 1988). Mandamus

will not lie to compel the performance of discretionary acts except

where the exercise or non-exercise of discretion is arbitrary, fraudulent,

or based upon a mistaken view of the law. Camiel v. Thornburgh, . . .

489 A.2d 1360 ([Pa.] 1985). “If [an official] abuses his [or her]

discretion or acts under a mistaken view of the law, mandamus will lie

to compel proper action.” Duncan Meter [Corp.] v. Gritsavage, . . .

65 A.2d 402, 403 ([Pa.] 1949).

Banfield I, 922 A.2d at 42 (emphasis in original). We rejected the Secretary’s

arguments that the electors were not entitled to relief because the Secretary’s

decisions to certify DREs, to establish DRE testing criteria, and to conduct

reexaminations are discretionary and because the electors did not have a clear right

to have the Secretary decertify the DREs. In doing so, we concluded, in part, that

the electors alleged facts sufficient to establish that the Secretary’s decisions in these

regards “were arbitrary or based on a mistaken view of the law.” Id.

As to the Secretary’s preliminary objection based on the “failure to join

indispensable parties, i.e., the fifty-six counties planning to use one or more of the

challenged DREs in the November 2006 election,” we explained:

A party is indispensable when his or her rights are so connected

with the claims of the litigants that no decree can be made without

impairing those rights. Sprague v. Casey, . . . 550 A.2d 184

([Pa.] 1988). “A corollary of this principle is that a party against whom

no redress is sought need not be joined. In this connection, if the merits

of a case can be determined without prejudice to the rights of the absent

party, the court may proceed.” Id. . . . at 189 (citations omitted).

Section 7540(a) of the Declaratory Judgments Act states that,

when declaratory relief is sought, all persons shall be made parties who

have any interest which would be affected by the declaration, and no

declaration shall prejudice the rights of persons not parties to the

proceeding. 42 Pa.[ ]C.S. § 7540(a). While the provision is mandatory,

16

it is subject to limiting principles. City of Philadelphia v. [Cmwlth.],

. . . 838 A.2d 566 ([Pa.] 2003).

Banfield I, 922 A.2d at 43-44. In rejecting the argument that the fifty-six counties

were indispensable parties, we opined:

Here, [the e]lectors do not seek redress from the fifty-six

counties, and, because the November 2006 election has passed, the

fifty-six counties will not be prejudiced by a judgment in favor of [the

e]lectors. Even absent a request, the Secretary could de-certify a DRE

at any time based solely on the statutory requirements for certification,

and counties using certified DREs must be prepared for that possibility.

Id. at 44.

With regard to the Secretary’s preliminary objection based on standing, we

explained and held as follows:

To establish standing, [the e]lectors must allege a substantial,

direct and immediate interest in the outcome of the litigation. Wm.

Penn Parking Garage, Inc. v. City of Pittsburgh, . . . 346 A.2d 269

([Pa.] 1975). An interest is substantial if it surpasses the common

interest of all citizens in obedience to the law; an interest is direct if it

is harmed by the matter that is the subject of the complaint; and an

interest is immediate if it is not remote or speculative. Id.

[The e]lectors have alleged a substantial interest in the

certification of the challenged DREs by asserting that, unlike all

citizens, they are required to vote using DREs that are not reliable or

secure and that do not provide a means for vote verification or vote

audit. [The e]lectors have alleged a direct interest by asserting that,

because of such deficiencies, [the e]lectors have “no way of knowing”

whether the DREs will recognize their votes in an election. Finally,

[the e]lectors have alleged an immediate interest by asserting that “each

wants to cast a ballot” in future elections, and “each wants their future

votes . . . to be properly counted and weighted.” Thus, [the e]lectors

have standing.

Banfield I, 922 A.2d at 44 (footnote omitted) (record citations omitted).

With regard to legal insufficiency, we considered several such preliminary

objections, including as to whether the Secretary violated Section 1101-A of the

Election Code by certifying DREs that do not create a “permanent physical record,”

17

see 25 P.S. § 3031.1, that can be retained and used to audit voting results. Although

the Secretary sought to dismiss this claim on the basis that Section 1101-A does not

require a “voter[-]verified independent record,” we observed that Section 1117-A of

the Election Code, 25 P.S. § 3031.17, “requires that the county board of elections

conduct ‘a statistical recount of a random sample of ballots after each election using

manual, mechanical or electronic devices of a type different than those used for the

specific election.’” Banfield I, 922 A.2d at 47 (quoting 25 P.S. § 3031.17) (emphasis

in original). We rejected the Secretary’s argument, noting that “[t]he Secretary d[id]

not explain, and, at this stage of the proceedings, there is no evidence to explain how

a board is to conduct a statistical recount using a different type of device if the

permanent physical record of each vote cast on a DRE is not independent of the data

in the electronic storage system.” Id. (emphasis added). We likewise rejected the

Secretary’s argument that some DREs satisfied the “permanent physical record”

requirement because they had a “Ballot Image Retention” (BIR) feature, concluding

that those particular DREs were not identified in the [p]etition and noting that the

electors disputed whether a BIR was a “permanent physical record.” Id.

We also considered whether the electors’ claim based on Article I, Section 5

of the Pennsylvania Constitution was legally insufficient because they failed to plead

a constitutional injury. We wrote:

Our [S]upreme [C]ourt has stated that elections are free and equal

under Article I, Section 5:

when they are public and open to all qualified electors

alike; when every voter has the same right as any other

voter; when each voter under the law has the right to cast

his ballot and have it honestly counted; when the

regulation of the right to exercise the franchise does not

deny the franchise itself, . . . and when no constitutional

right of the qualified elector is subverted or denied him.

18

In re 1991 [Pa.] Legislative Reapportionment Comm[’]n, . . . 609 A.2d

132, 142 ([Pa.] 1992) (emphasis added) (quoting City Council v.

Marcincin, . . . 515 A.2d 1320, 1323 ([Pa. ]1986)).

[The e]lectors allege that the Secretary’s certification of the

challenged DREs will make it “likely that a significant number of votes

will not be counted accurately, or at all.” [The e]lectors also

incorporate the allegation that they have “no way of knowing” whether

a DRE has recognized their votes so that they will be counted. Because

[the e]lectors have a right under Article I, Section 5 of the Pennsylvania

Constitution to have their votes honestly counted and because [the

e]lectors 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 e]lectors have pled an

injury under Article I, Section 5.

Banfield I, 922 A.2d at 48 (emphasis in original) (record citations omitted).

We similarly considered whether the electors’ claim based on Article I,

Section 26 of the Pennsylvania Constitution was legally insufficient because they

failed to allege an equal protection violation. We opined:

[The e]lectors allege that their equal protection rights are at risk

because, “while they are compelled to vote in counties using the

certified DRE voting systems, other registered voters in Pennsylvania

may vote in precincts or counties using voting systems . . . that do not

suffer from the [identified] defects” of the DREs. The Secretary argues

that [the e]lectors fail to allege an equal protection violation because

Article VII, Section 6 of the Pennsylvania Constitution[15] permits the

use of voting machines in some parts of the state without requiring the

use of voting machines in other parts of the state. See PA. CONST.,

art. VII, § 6. However, Article VII, Section 6 does not permit DREs

that are not reliable or secure and that provide no means for vote

verification or vote audit.

Banfield I, 922 A.2d at 48 (record citation omitted).

The Secretary asserted a second preliminary objection based on the electors’

claim under Article I, Section 26 of the Pennsylvania Constitution, claiming that the

15

“Article VII, Section 6 of the Pennsylvania Constitution [generally provides] that all

laws regulating the holding of elections shall be uniform throughout the state.” Banfield I,

922 A.2d at 49.

19

electors failed to allege a denial of a right thereunder. Again, we rejected the

argument, reasoning:

[The e]lectors allege that the Secretary’s certification of the

challenged DREs threatens their right to vote because the defects and

security flaws create the risk that [the e]lectors’ votes will be rendered

meaningless or, worse yet, deemed cast for a candidate for whom they

did not vote. [The e]lectors also incorporate the allegation that they

have “no way of knowing” whether a DRE has recognized their votes

so that they will be counted. Because [the e]lectors have a right to vote

and because [the e]lectors have no way of knowing whether using the

DREs affords them that right, [the e]lectors have pled the denial of a

civil right under Article I, Section 26.

Banfield I, 922 A.2d at 49 (record citations omitted).

Following the completion of discovery, the electors filed a motion for partial

summary relief, which we denied in Banfield II. The electors sought summary relief

on certain counts “primarily on the basis that, inasmuch as there is no dispute

regarding certain technical attributes of the DREs, the DREs fail to comply with

specific provisions of the Election Code, thereby entitling [the e]lectors to judgment

as a matter of law.” Banfield II, 51 A.3d at 303.

We considered the electors’ contention that they were entitled to summary

relief because the DREs do not comply with Section 1101-A of the Election Code,

which defines an EVS as a system that, in part, “provides for a permanent physical

record of each vote cast,” and rejected the notion that the DREs fail to “provide for”

such a permanent record. Banfield II, 51 A.3d at 303-05. The Court seemingly

adopted the Secretary’s construction to require “only the capability of providing the

specified item upon demand if needed.” Id. at 305. We then considered whether the

DREs create “permanent physical records” of “each vote cast.” Id. at 305-06. “[W]e

disagree[d] with [the electors’] contention that use of the term ‘permanent’ requires

an electronic record that is immune from wrongful or malevolent alteration or

20

destruction or even alteration or destruction resulting from unintentional human

error or mishap.” Id. at 307. Instead, we agreed with the Secretary that “any record,

whether paper or electronic, is subject to destruction, loss, tampering or wear” and

“that the term must be construed in a manner which serves the purposes of the

Election Code.” Id. “[W]e conclude[d] that a permanent record is one that will

remain stable or intact and be available for an indefinite period of time, but at a

minimum, twenty days for purposes of recounts, recanvasses, litigation, etc., in

state-related contests and twenty-two months in federal-related election matters.”16

Id. at 307-08. As to DREs that print ballot images and vote records on thermal paper,

which the electors suggested was fragile and prone to fading and deterioration and,

therefore, not permanent, we noted that the electors’ expert opinion on the

permanency of thermal paper was too vague and concluded that “the possibility that

vote records printed on thermal paper may not be treated properly to ensure their

stability and longevity does not require a declaration that the machines cannot

provide a permanent record.” Id. at 308-09. We concluded that we did not need to

address the question of whether electronic vote records satisfy the requirement for a

permanent physical record, because, in that case, every certified DRE could provide

vote records printed on paper. Id. at 309-10.

16

The Court further declined to “construe ‘permanent’ to denote a vote record immune

from human alteration, mishap or loss,” concluding that such a construction would render

Section 1107-A(11), (12), and (13) of the Election Code redundant and that the electors had not

pointed “to any undisputed record evidence that demonstrates that an electronic record, which has

been created by a[n] EVS meeting all requirements for certification, cannot be accurately retained

for time periods mandated by law.” Banfield II, 51 A.3d at 308. The Court also found that “the

prospect that some counties may actually reuse the electronic storage media in subsequent

elections without preserving a printed copy of the vote data or another electronic copy” was

immaterial to the issue of whether the certified DREs provide a permanent record of each vote

cast. Id.

21

We also considered an additional argument—whether the electors were

entitled to judgment as a matter of law based on their contention “that the electronic

vote records, including the cast vote records or ballot images from which the printed

records stem, cannot be deemed a ‘record of each vote cast’ because there is no way

to certify that the records accurately represent each vote cast.” Id. at 310. The

electors based their argument on the fact that “the vote records are ‘software

dependent’ and, therefore, are vulnerable to all the various undetectable maladies

plaguing computers and computer software.” Id. The electors articulated their

argument, as follows:

[E]ven if the data that is stored electronically on DREs were both

“permanent” and “physical,” there is no way for the Secretary (or

anyone else) to certify that it is a “record of each vote cast.” Say what

you will about paper ballots and the ability to alter them after they have

been cast, the systems that incorporate paper ballots will always create

an actual record of the actions as expressed by a voter. Even if they are

altered after that, that does not change that there was at one time an

actual, accurate record of the voter’s actions.

The same cannot be said of DRE systems. . . . [E]ven the initial

writing of data in a computer’s memory is dependent on and affected

by the software the computer runs, and if that software is flawed or

corrupted, the initial data—and any subsequent copies of it—will not

reflect the voter’s interaction with the ballot interface. And as there

was never a physical ballot to fall back on, the system in such a situation

would never create any actual “record” of any actual vote. In short,

whereas optical scan systems use voter-created records, DREs generate

software-created data that is no more reliable than the software itself.

And when for whatever reason the software is not reliable, there is no

“record” of the vote at all.

Id. at 310 (alteration in original) (citations and footnote omitted).

In rejecting the electors’ argument regarding the security and reliability

concerns surrounding computer software and computers, we opined:

First, the Election Code was amended in 1980 to authorize the use of

[EVSs]. [EVSs], as designed and defined, register votes electronically,

without the need for use of paper ballots or “voter-created” records. A

22

fortiori, without software, we would not have [EVSs]; software is

necessary to register, create and store the voter’s action in electronic

format. Not only does the [Election] Code not require that vote records

be software independent, but such a construction would be absurd,

completely incongruous to the amendments defining and authorizing

the use of such devices and inconsistent with the state of technology in

1980. Second, while [the electors] are obviously concerned with the

vulnerability of the DREs to “malicious or mistaken code, or . . . [a

hijack] through a ‘man-in-the-middle’ attack, or [human error],” the

certification and approval process is designed to provide security from

such occurrences.

Id. at 311 (some alterations in original) (footnotes omitted). In reaching that

determination, however, we also noted the opinion of the Secretary’s expert:

[I]t is possible to determine easily whether a system is recording,

computing and tabulating votes accurately. One casts a known set of

ballots that have been previously tabulated manually. A totals report is

then produced and the machine totals are compared with those reported

by the machine. This is done on a large scale by the [Independent Test

Authority] and on a small scale during certification exams.

Id. at 311-12 (alteration in original). We further noted the Secretary’s expert’s

opinion that “machines are tested before each election to verify that they are

recognizing votes correctly.”17 Id. at 312.

Following our denial of the electors’ application for partial summary relief

and upon consideration of an application for summary relief filed by the Secretary,

the Court, through a single-judge order issued on January 29, 2013, and a

single-judge memorandum opinion issued on October 1, 2013 (Banfield III),

ultimately dismissed all counts. Relevant to this matter, in Banfield III, the Court

17

Additionally, the electors argued that they were entitled to judgment in their favor with

respect to two counts of their petition relating to their constitutional claims, asserting that “the

Secretary’s allegedly improper certification of the DREs at issue resulted in constitutional

violations as well.” Banfield II, 51 A.3d at 314 n.34. The Court reasoned that the electors were

not entitled to the requested relief on those counts given its conclusion that the electors had “not

demonstrated that the certifications were illegal thereby entitling them to judgment as a matter of

law.” Id.

23

observed that the electors sought relief in three of the counts at issue based on a

failure to comply with the certification requirements set forth in Section 1107-A(11),

(12), and (13) of the Election Code, which are likewise at issue in this matter, as well

as Section 1107-A(16)(iii) and (17)(i), relating to tamper-proof requirements.

Banfield III, slip op. at 3-4. The electors contended that the DREs were neither

capable of the required accuracy nor sufficiently tamper-proof, that the Secretary’s

testing procedures did not ensure full compliance with the subject provisions, and

that the Secretary failed to adopt adequate testing procedures.

The Court noted that, because the electors were seeking mandamus relief on

the basis that the Secretary “failed to properly exercise her discretion in the

performance of [her] duty” to certify DREs as required under the Election Code, the

electors “must establish that the Secretary performed her statutory duties arbitrarily,

fraudulently or under a mistake of law.” Banfield III, slip op. at 5. The Court further

explained that, “to prevail in their quest to de-certify the challenged DREs, [the

electors] must establish that the DRE voting systems actually fall short of the

statutory requirements for accuracy and security from tampering.” Id. Indeed, to

survive summary relief, the record had to “contain some evidence that would support

such a finding,” and electors could not prevail “without supportive expert opinion”

given that the workings of EVSs were outside “the skill and knowledge of the

ordinary layman.” Id., slip op. at 5-6.

The Banfield III Court concluded that the electors failed to produce any

evidence “that the challenged machines fail[ed] to accurately record votes when

properly used. Rather, review of the expert reports disclose[d] that [the electors

could] establish no more than that a possibility exists that the challenged DREs could

in theory be subject to tampering or human error.” Banfield III, slip op. at 6. The

24

Court added that “the possibility that tampering can produce inaccuracy does not

render the DREs incapable of the absolute accuracy required under the Election

Code,” nor do uncovered vulnerabilities “establish the presence of unacceptable

security procedures.” Id., slip op. at 6-7. The Court explained, “[s]ince voting will

always be vulnerable to fraud, a mere possibility of a security breach is not alone

sufficient to warrant overriding the Secretary’s determination to certify the systems.”

Id. at 8. The Court added that, “because the experts have failed to establish that the

Secretary’s testing procedures and the DREs that she certified create more than a

mere possibility of error in recording and tabulating votes,” the electors’ claims

failed. Id. In sum, the Court explained that “more than a mere possibility of

inaccuracy or insecurity is required to justify the relief” sought by the electors, whom

the Court thus viewed instead as largely demanding improper oversight of the

Secretary’s discretion. Id., slip op. at 5, 9.

Further, the Court concluded that the constitutional claims at issue18 could not

survive given that those claims were based “on the premise that the challenged DREs

are so inaccurate and insecure as to infringe on the right to vote and the requirement

for uniform election regulation”—a premise the electors failed to prove.

Banfield III, slip op. at 10. The electors then appealed to the Supreme Court.

18

Notably, the electors’ constitutional claims included claims similar to those asserted by

Petitioners here. In this regard, the electors alleged that the certification of the DREs at

issue: (1) “create[s] the risk that persons for whom the majority of voters have not cast their ballots

will be declared the election winners and will take office, in contravention of the very essence of

our democracy,” in violation of Article I, Section 5 of the Pennsylvania Constitution,

and (2) “threatens [the electors’] fundamental right to vote because the voting systems’ defects and

security flaws create the risk that [the electors], together with other Pennsylvania voters, have their

votes rendered meaningless or, worse yet, deemed cast for a candidate for whom they did not vote”

in violation of Article I, Section 26 of the Pennsylvania Constitution. Banfield III, slip op. at 9-10

nn.5-6.

25

Among the issues addressed on appeal, and most relevant to this matter, were

claims relating to the electors’ security concerns. Before the Supreme Court, the

electors argued that this Court erred in finding that the DREs satisfied the

requirements related to a DRE’s security from tampering outlined in

Section 1107-A(12) and (16)(iii) of the Election Code, 25 P.S. § 3031.7(12),

(16)(iii). The electors argued that the DREs at issue could not be deemed to have

sufficient protection against tampering because security vulnerabilities make it

possible to alter votes. The electors argued “that the plain language of the statute is

obligatory as it provides that an [EVS] ‘shall preclude every person from tampering

with the tabulating element,’” taking the position that Section 1107-A(16)(iii) of the

Election Code “does not include the qualifier ‘when properly used’ and assert[ing]

the Legislature drafted this section in absolute terms.” Banfield IV, 110 A.3d at 172

(emphasis in original) (citations omitted).

The Supreme Court characterized the electors’ argument as “advocating that

the DREs be held to an impossible standard of invulnerability.” Id. at 174. The

Supreme Court “agree[d] with the Commonwealth Court’s finding that the mere

possibility of error cannot bar the use of a voting system as ‘the unfortunate reality

is that the possibility of electoral fraud can never be completely eliminated, no matter

which type of ballot is used.’” Id. (emphasis in original) (quoting Banfield III, slip

op. at 8).

The Supreme Court expounded on the imperfections of voting systems at

length:

While [the electors] claim traditional paper ballots and optical scan

voting are preferable alternatives, they fail to acknowledge that such

systems are also vulnerable to tampering as paper ballots can be easily

destroyed or altered by an individual intending to manipulate the

election result. Moreover, paper ballots may fail to accurately record

voter intent as a result of mechanical or human error that leads to the

26

invalidation of votes, in cases where ballots have not been completed

in a correct and comprehensible manner, contain an overvote or

undervote based on the number of permitted selections in an election,

or contain markings that cannot be read by an optical scanner. As all

voting systems are imperfect and not immune from tampering, the

Election Code cannot be read to impose a requirement that cannot be

achieved.

As the question of whether an electronic system has adequate

security measures against tampering necessarily results in a subjective

determination, the Legislature delegated this discretionary decision to

the Secretary, who is . . . Pennsylvania’s chief election official.

Kuznik v. Westmoreland Cnty. Bd. of Comm’rs, . . . 902 A.2d 476, 502

([Pa.] 2006). We have previously held that “a reviewing court will

ordinarily defer to an agency’s interpretation of a regulation or a statute

it is charged to enforce.” Id. (citation omitted).

[W]hen the courts of this Commonwealth are faced with

interpreting statutory language, they afford great

deference to the interpretation rendered by the

administrative agency overseeing the implementation of

such legislation. . . . Thus, our courts will not disturb

administrative discretion in interpreting legislation within

an agency’s own sphere of expertise absent fraud, bad

faith, abuse of discretion or clearly arbitrary action.

Id. (quoting Winslow-Quattlebaum v. [Md.] Ins. [Grp.], . . . 752 A.2d

878, 881 ([Pa.] 2000)) (affording “great deference” to state election

officials’ interpretation of the Election Code in determining whether

HAVA preempted Pennsylvania’s referendum requirement).

As noted above, the Commonwealth Court found the Secretary

was entitled to summary relief on this claim as [the electors] had not

shown any more than the mere possibility that the certified DREs in

theory could be subject to tampering, presenting no evidence that the

challenged devices have failed to accurately record votes or

experienced a security breach in an actual election. Upon [the electors’]

request, the Secretary conducted reexaminations of the DREs with the

assistance of an examiner, who reviewed federal test results of federal

independent testing authorities (ITAs), created test protocols for each

DRE, and performed penetration analyses to test the voting systems’

security. In addition, the Secretary considered the competing opinions

of the parties’ experts and the studies cited by [the electors] identifying

vulnerabilities in the security of the certified DREs. Taking all of this

information into consideration, the Secretary determined that the DREs

27

satisfied each of the Election Code’s requirements, finding their

vulnerabilities do not render them necessarily defective and unfit for

use in an election when they have successfully worked to accurately

record and tabulate votes in countless Pennsylvania elections. As [the

electors] have not alleged the Secretary’s certification of the DREs was

fraudulent, in bad faith, an abuse of discretion or clearly arbitrary, we

decline to disturb her administrative discretion in overseeing the

implementation of the Election Code which is entitled to great

deference.[19]

Banfield IV, 110 A.3d at 174-75.

The electors also argued that the Commonwealth Court erred in rejecting their

constitutional challenges as they related to the electors’ security concerns. In

concluding that the electors were not entitled to relief, the Supreme Court opined:

[W]e find no merit in [the electors’] claim that the Secretary’s

certification of the DREs violated the fundamental right to vote or

resulted in disparate treatment of any group of voters. As the Election

Code bestows upon the Secretary the responsibility to choose between

several voting systems with varying advantages and disadvantages, we

see no reason to interfere with the Secretary’s discretion in certifying

the DREs at issue absent a showing that the decision was unreasonable

or discriminatory.

Id. at 178.

Despite the requirements of Section 1107-A of the Election Code, the

Pennsylvania Supreme Court has acknowledged that “all voting systems are

imperfect and not immune from tampering” and “the mere possibility of error cannot

bar the use of a voting system.” Banfield IV, 110 A.3d at 174. Thus, the Election

Code does not require “an impossible standard of invulnerability” or “impose a

requirement that cannot be achieved.” Id. With this backdrop in mind, our Supreme

Court has made clear that the Secretary’s “administrative discretion in overseeing

the implementation of the Election Code . . . is entitled to great deference” and will

19

The Supreme Court relied on this analysis to conclude that the electors were not entitled

to mandamus relief. Banfield IV, 110 A.3d at 175.

28

not be disturbed by the judiciary absent a showing that “the Secretary’s certification

. . . was fraudulent, in bad faith, an abuse of discretion or clearly arbitrary.”

Id. at 175. This is consistent with the deference that Pennsylvania courts generally

bestow on an agency tasked with implementing a legislative enactment. See Kuznik,

902 A.2d at 502. Moreover, where “the statutory scheme is complex,” as is the case

in this instance, “the reviewing court must be even more cautious in substituting its

discretion for the expertise of an administrative agency.” Laundry Owners Mut.

Liab. Ins. Ass’n v. Bureau of Workers’ Comp., 853 A.2d 1130, 1136

(Pa. Cmwlth. 2004) (quoting Graduate Health Sys., Inc. v. Pa. Ins. Dep’t, 674 A.2d

367, 370 (Pa. Cmwlth. 1996)).

III. PRELIMINARY OBJECTIONS

A. Failure to State a Claim (Counts I-IV)

The Secretary argues that the Election Code violations asserted in Counts I-IV

of the Petition should be dismissed because Petitioners have failed to allege facts

that, even if true, would suffice to state a claim for a violation of the Election Code

under those counts. In short, the Secretary claims that Petitioners must allege facts

demonstrating that her decision to certify the ExpressVote XL machines under the

statutory provisions at issue—which is a discretionary, subjective decision entitled

to great deference—was “fraudulent, in bad faith, an abuse of discretion or clearly

arbitrary.” Banfield IV, 110 A.3d at 175. The Secretary contends that, here,

Petitioners’ allegations consist of theoretical deficiencies in the ExpressVote XL

machines that fall short of justifying judicial interference with the Secretary’s

decision to certify the machines.

For instance, with regard to Counts I-III of the Petition, relating to the security

and accuracy of the ExpressVote XL machines, the Secretary characterizes those

29

counts as criticizing three discrete design features—i.e., the administrator access

panel, the test deck feature, and the paper path. The Secretary contends, however,

that Petitioners base their assertions regarding the exploitation or malfunctioning of

these features on theory as opposed to any real-world occurrences or testing that

would demonstrate that these alleged outcomes have occurred or are actually

possible. As to Count IV of the Petition, relating to voter privacy and secrecy, the

Secretary characterizes that count as narrowly focusing on the ExpressVote XL

machines’ storage of ballots chronologically and the procedure used for ballot

spoliation, which requires a poll worker to enter the voting booth to provide

assistance. The Secretary points out that Petitioners do not allege that the claimed

flaws have ever resulted in an invasion of any voter’s privacy while voting or the

exposure of any elector’s vote selection. The Secretary notes that, while Petitioners

allege that issues occurred when the machines were used in the November 2019

election in Northampton and Philadelphia Counties, Petitioners fail to aver that any

of those issues were connected to the alleged theoretical flaws identified in the

Petition.

The Secretary maintains that, other than “boilerplate, rote incantation of the

legal standard,” which in and of itself is insufficient, the Petition lacks “factual

allegations to support the bald assertions that the Secretary ‘abused her discretion

and acted clearly arbitrarily’ when she certified the ExpressVote XL” machines “and

that her reexamination of this voting system ‘was conducted in bad faith.’”

(Secretary’s Brief at 17 (quoting Petition ¶¶ 253-54).) The Secretary adds that

Petitioners are mistaken insofar as they claim that they need not plead such facts at

this stage, that their claims survive because they are similar to the claims that

30

survived preliminary objections in Banfield I, and that they will be able to further

substantiate their claims once they are able to take discovery.

Petitioners counter by first addressing the Secretary’s arguments that

Petitioners have alleged only theoretical flaws in the ExpressVote XL machines that

are not based on empirical evidence. Petitioners respond that the ExpressVote XL

machines have never been made public to Petitioners or anyone else in the

technological field for inspection, noting that even the Secretary’s reexamination of

the machines occurred in Colorado, as opposed to Pennsylvania, and was open to

personnel of the Department of State only. Furthermore, the Secretary obtained a

stay of discovery in this case, thereby preventing Petitioners from accessing the

machines thus far in the litigation. Based on these circumstances, Petitioners posit

that any lack in empirical evidence is due to the lack of their ability to inspect or

assess the machines due in large part to the actions of the Secretary. Petitioners add

that they identify in their Petition specific security, accuracy, and secrecy issues that

arose during the November 2019 election in Philadelphia and Northampton Counties

with the use of the ExpressVote XL machines. Additionally, Petitioners aver in their

Petition that the ballot spoliation process employed in at least Philadelphia County

in the November 2019 election violated voters’ right to vote in secrecy.

Petitioners also argue that the Secretary is urging the Court to apply an

incorrect legal standard at this stage of the pleadings. Specifically, Petitioners argue

that the Secretary’s contention that Petitioners must allege facts showing that the

Secretary’s certification was “fraudulent, in bad faith, an abuse of discretion or

clearly arbitrary” in order to challenge it successfully is based upon a

misinterpretation of our Supreme Court’s decision in Banfield IV. Petitioners reason

that the standard set forth above is the standard of deference to be utilized after

31

Petitioners have had the opportunity to take discovery and present evidence. The

standard of deference, they assert, is not the legal standard to be applied at the

pleading stage of litigation. Petitioners contend that they have raised well-pled

allegations concerning the ExpressVote XL machines’ inability to conform to the

Election Code, which is enough to survive dismissal under Banfield I, where this

Court did not mention the necessity to plead fraud, bad faith, abuse of discretion, or

clear arbitrariness in overruling a preliminary objection arguably similar to that

asserted by the Secretary here. Regardless, Petitioners maintain that their pleading

meets even this incorrect standard, because they pled that, “[o]n information and

belief, the Secretary’s reexamination of the ExpressVote XL [machines] was

conducted in bad faith.” (See Petition ¶¶ 250-54.) Petitioners assert they have pled

sufficient facts to state a claim under Counts I-IV of the Petition and, as such, are

entitled to proceed on those counts, including by taking discovery into the

circumstances of the Secretary’s certification and reexamination.

Here, 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

32

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.)20 With respect to the ExpressVote

XL machines’ secrecy issues, Petitioners aver that a voter’s ballot could be identified

as a result of: (1) the machines’ storing of ballots in chronological order, and (2) the

machines’ spoliation procedure, which requires a poll worker to enter the voting

booth and retrieve the ballot card, thereby enabling the poll worker to see and know

the voter’s vote at a time it can still be legally cast.21 (Petition ¶¶ 158-68, 180-92,

194.)

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

“Northampton County used the Test Deck feature during its logic and accuracy tests on

20

and around October 9, 2019.” (Petition ¶ 147.)

21

With regard to the spoliation procedure, Petitioners aver that a poll worker training video

recorded on November 3, 2019, in Philadelphia County “highlights the high probability that the

legal procedures for spoiling a ballot will be violated and secrecy will not be maintained,” as

demonstrated by the trainer’s comments made in the video. (See Petition ¶ 197 (averring that

trainer directed poll workers to “let [the voter] know [the poll worker is] coming in to spoil the[]

ballot” and advising poll worker to “not look at the[] selections” or tell anyone if they do).)

33

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.)22 Petitioners also allege that the

Secretary “abused her discretion and acted clearly arbitrarily” in certifying the

ExpressVote XL machines notwithstanding the issues identified in the Petition, and

that her “reexamination of the ExpressVote XL [machines] was conducted in bad

faith.” (Petition ¶¶ 253-54.)

Upon review, we agree with the Secretary that Petitioners must demonstrate

that the Secretary’s decision to certify the ExpressVote XL machines under

Sections 1107-A(1) and (11)-(13) of the Election Code was “fraudulent, in bad faith,

an abuse of discretion or clearly arbitrary” in order to succeed on their claims arising

out of those provisions. Nonetheless, based on the averments outlined in the Petition

and the reasonable inferences deduced therefrom and resolving all doubt in favor of

Petitioners, it is unclear as a matter of law at this juncture that her decision to certify

the ExpressVote XL machines as complying with those provisions at issue was not

“fraudulent, in bad faith, an abuse of discretion or clearly arbitrary.” As further

factual development is necessary to analyze the Secretary’s certification decision in

this regard, we overrule the Secretary’s preliminary objection raising a demurrer to

the Election Code violations asserted in Counts I-IV of the Petition.

22

This citation refers to the second set of paragraphs numbered 264 and 265 in the Petition.

34

B. Failure to State a Claim Under Constitutional Provisions

(Counts IV and VI)

The Secretary likewise objects to Petitioners’ constitutional claims in

Counts IV and VI of the Petition on the basis that they fail to state a claim for which

relief may be granted. The Secretary argues that Petitioners’ allegations, even if

true, would not establish that the Secretary’s decision to certify the ExpressVote XL

machines was unreasonable, discriminatory, or “severely restrict[s] the right to

vote,” Banfield IV, 110 A.3d at 177-78, or constituted a “plain, palpable, and clear

abuse of . . . power which actually infringes on the rights of the electors,” League of

Women Voters v. Commonwealth, 178 A.3d 737, 793 (Pa. 2018), as is required to

succeed on their claims. Rather, the Petition merely avers that certain design features

and aspects of functionality of the ExpressVote XL machines create theoretical

security and performance vulnerabilities and could theoretically undermine voter

privacy. The Secretary adds that, to the extent Petitioners argue that this standard

only applies to legislative enactments as opposed to executive action, they offer no

support for that proposition. Further, the Secretary submits that, insofar as

Petitioners rely upon Banfield I to argue that they have pled sufficient facts to sustain

their constitutional claims, Banfield I is inapposite because it was based on different

factual allegations and decided before the Supreme Court had opined on the relevant

legal standard in Banfield IV.

Petitioners argue that they have pled viable constitutional claims pursuant to

Banfield I, as they set forth a clear constitutional injury by the executive branch—

that by certifying the ExpressVote XL machines, the Secretary has violated their

constitutional rights by failing to provide voters with voting machines that ensure

that their votes are honestly counted. Petitioners add that, in arguing to the contrary,

the Secretary again advocates for application of an improper legal standard.

35

Moreover, Petitioners claim that they have nonetheless pled the standard asserted by

the Secretary in alleging that, “[b]y certifying the ExpressVote XL [machines] while

being aware that the machine[s] violated the Election Code in the many ways already

detailed in the Petition, the Secretary committed a plain, palpable, and clear abuse

of power that infringes on the voting rights of the Individual [Petitioners] and of

[NEDC’s and CBE’s] individual members.” (See Petition ¶ 255.)

Similar to our conclusion above, we hold that Petitioners have alleged

sufficient facts at this stage of the litigation to proceed on their constitutional claims.

Insofar as the Supreme Court has determined that the Secretary’s discretion in

certifying voting machines will not be disturbed on constitutional grounds “absent a

showing that the [Secretary’s] decision was unreasonable or discriminatory,”

Banfield IV, 110 A.3d at 178, based upon the allegations set forth in the Petition and

the reasonable inferences deduced therefrom and again resolving all doubt in favor

of Petitioners, it is unclear as a matter of law at this point whether the Secretary’s

decision was “unreasonable or discriminatory.” Thus, we overrule the Secretary’s

preliminary objection raising a demurrer to Petitioners’ constitutional claims.

C. Lack of Standing (Counts I-IV)

The Secretary also objects on the basis that Petitioners lack standing to pursue

their claims arising under the Election Code set forth in Counts I-IV. The Secretary

asserts that Petitioners have failed to allege a “substantial interest” in the outcome

of those claims because they do not aver that their alleged concerns about the

certification and voting process set them apart from any other voter in Pennsylvania.

In particular, the Secretary notes that the Petition is devoid of averments regarding

what voting systems are in use in other jurisdictions in Pennsylvania and whether

those voting systems share the same alleged imperfections and vulnerabilities of the

36

ExpressVote XL machines or are more reliable. Rather, Petitioners merely aver that

“other registered voters in Pennsylvania may vote in precincts or counties using

voting systems . . . that do not suffer from the defects identified in this Petition.”

(See Petition ¶ 298 (emphasis added).) Thus, according to the Secretary, this matter

is distinguishable from Banfield I, where the electors were deemed to have standing

because they alleged that, “unlike all citizens, [the electors] are required to vote using

DREs that are not reliable or secure and that do not provide a means for vote

verification or vote audit.” See Banfield I, 922 A.2d at 44 (emphasis added). The

Secretary also challenges the standing of NEDC and CBE noting that “where an

organization fails to establish standing on the basis of its membership, allegations

that its mission relates to the challenge being pursued are insufficient.”

(Secretary’s Brief at 28 n.8.)

Petitioners counter that Individual Petitioners have standing under this Court’s

decision in Banfield I. Petitioners further challenge the Secretary’s claim that

Individual Petitioners failed to distinguish themselves from residents of other

counties, noting that the voters in Philadelphia, Northampton, and Cumberland

Counties are distinct because those counties (and no other counties) purchased the

ExpressVote XL machines. In fact, this distinction is why the Secretary contends

that those counties are indispensable parties to this action. Petitioners maintain that

they need not plead a comparative analysis of the voting methods used in

Pennsylvania’s other sixty-four counties. As to NEDC and CBE, Petitioners contend

that they have standing through their members who have standing. In their Petition,

they aver that NEDC has “at least one member who is a resident of Philadelphia

County and who has voted in the November 2019 election where the ExpressVote

XL [machines were] first used and plans to continue to vote in Pennsylvania

37

elections where the ExpressVote XL [machines] will be used.” (Petition ¶ 15.)

Similarly, CBE has “at least one member in each of Philadelphia and Northampton

Counties who are residents of such county, who voted in the November 2019

election where the ExpressVote XL [machines were] first used, and who plan to

continue to vote in Pennsylvania elections where the ExpressVote XL [machines]

will be used.” (Petition ¶ 17.)

In reply, the Secretary argues that the mere fact that the ExpressVote XL

machines are in use in three Pennsylvania counties and not the others is insufficient

to support a finding that the electors in those three counties using the

ExpressVote XL machines have a substantial interest. The Secretary claims that,

instead, Petitioners must allege facts establishing that Petitioners face a heightened

risk of not having their votes counted or having their privacy infringed upon as

compared with voters in counties that use other voting machines, based on

meaningful functional differences between the ExpressVote XL machines and the

other machines used in Pennsylvania. The Secretary contends that it is “[t]hese types

of allegations [which] are necessary for Petitioners to make out an interest that

‘surpasses the common interest of all citizens in obedience to the law.’” (Secretary’s

Reply Brief at 9 (quoting Banfield I, 922 A.2d at 44).) We disagree.

“Under a traditional standing analysis, the individual initiating the legal action

must show that he is aggrieved by the matter that he seeks to challenge,” which

means he “must have a substantial, direct, and immediate interest in the outcome of

the litigation.” Firearm Owners Against Crime v. City of Harrisburg, 218 A.3d 497,

506 (Pa. Cmwlth. 2019) (en banc), appeal granted in part, 230 A.3d 1012 (Pa. 2020).

As we explained in Phantom Fireworks Showrooms, LLC v. Wolf, 198 A.3d 1205

(Pa. Cmwlth. 2018) (en banc):

38

A substantial interest in the outcome of litigation is one that surpasses

the common interest of all citizens in procuring obedience to the law.

A direct interest requires a causal connection between the asserted

violation and the harm complained of. An interest is immediate when

the causal connection is not remote or speculative.

Phantom Fireworks, 198 A.3d at 1215 (citations omitted). An organization, such as

NEDC or CBE, has standing to sue “so long as [the] organization has at least one

member who has or will suffer a direct, immediate, and substantial injury to an

interest as a result of a challenged action.” Parents United for Better Schs., Inc. v.

Sch. Dist. of Phila. Bd. of Educ., 646 A.2d 689, 692 (Pa. Cmwlth. 1994). The

Secretary does not appear to contest that Petitioners, as individuals or organizations,

have an interest that is “immediate” or “direct.” Rather, the Secretary urges the

Court to conclude that Petitioners’ interest is not “substantial.”

As previously noted, the Court in Banfield I concluded that the electors had

“alleged a substantial interest in the certification of the challenged DREs by asserting

that, unlike all citizens, they are required to vote using DREs that are not reliable or

secure and that do not provide a means for vote verification or vote audit.”

Banfield I, 922 A.2d at 44. Petitioners have likewise alleged a substantial interest in

the certification of the challenged ExpressVote XL machines by asserting that they

are required to vote using those machines, which are not reliable or secure. (See

Petition ¶¶ 32-36.) While Petitioners did not explicitly allege that they are “unlike

all citizens” in this regard, the Secretary reads too much into Banfield I’s use of that

phrase and the general requirement that a litigant’s interest must “surpass[] the

common interest of all citizens in obedience to the law.” Banfield I, 922 A.2d at 44.

Petitioners need not demonstrate that they are the only people that use the

ExpressVote XL machines, nor do they need to show that they face a heightened risk

of not having their votes counted or having their privacy infringed upon as compared

39

with voters in counties that use other voting machines based on differences between

the voting machines. “[T]he requirement of a ‘substantial’ interest simply means

that the individual’s interest must have substance—there must be some discernible

adverse effect to some interest other than the abstract interest of all citizens in having

others comply with the law.” In re General Election 2014, 111 A.3d 785, 792 (Pa.

Cmwlth. 2015) (quoting Wm. Penn Parking Garage, 346 A.2d at 282). Here,

Petitioners have an interest that is immediate, direct, and more than an “abstract

interest” in having the Secretary comply with the law; they have an interest in

ensuring that their votes, which are cast through use of the ExpressVote XL

machines certified by the Secretary at issue here, are recorded and counted in an

accurate, secure, and secret manner. Thus, we overrule the Secretary’s preliminary

objection raising lack of standing as to Counts I-IV of the Petition.

D. Nonjoinder of Necessary Parties (Counts I-IV, VI)

The Secretary next claims that all disputed counts of the Petition should be

dismissed for Petitioners’ failure to join Philadelphia County, Northampton County,

and Cumberland County as indispensable parties to this action. The Secretary notes

that these counties have already expended significant effort and money in acquiring

and implementing the ExpressVote XL machines, and she submits that many of

Petitioners’ complaints involve ways that the counties’ election boards and poll

workers allegedly have deployed the machines rather than defects in the machines

themselves. The Secretary argues that these counties have an interest in ensuring

the orderly administration of elections and in protecting their citizens’ voting rights,

as well as a financial interest in maintaining their ability to use the ExpressVote XL

machines in upcoming elections. According to the Secretary, these interests would

be harmed and the counties would be substantially prejudiced in having to replace

40

the machines should Petitioners be granted relief on their claims in the form of

decertification of the ExpressVote XL machines, thereby rendering the counties

indispensable parties. The Secretary adds that Banfield I is inapposite because, inter

alia, the Secretary recently certified the ExpressVote XL machines—and the

counties procured them—as part of an initiative to update the voting technology used

throughout the Commonwealth, indicating that the Secretary would not act to

decertify them suddenly and without warning.23 (Secretary’s Reply Brief at 9-12.)

Petitioners counter that Banfield I is again controlling and requires the Court

to overrule the Secretary’s preliminary objection asserting nonjoinder of

indispensable parties. In so doing, Petitioners emphasize that the timing of any

particular election is not dispositive of the jurisdictional question of whether a party

is indispensable and that the counties have no right to participate in the Secretary’s

process of certifying voting machines. Petitioners also argue that the counties do

not appear to have any interests that diverge from the Secretary’s and, thus, their

contributions are likely to be duplicative and burdensome.

Upon review, we agree with Petitioners that Banfield I controls our disposition

of the Secretary’s fourth preliminary objection. In rejecting the Secretary’s

contention that the electors failed to join as indispensable parties the fifty-six

counties planning to use one or more of the challenged DREs in the November 2006

election, the Banfield I Court explained that the electors did “not seek redress from

23

The Secretary also argues that, in Banfield I, the November 2006 election at issue had

already passed, whereas, at the time the Secretary had filed her preliminary objections and

supporting briefs here, the November 2020 election had not yet occurred. Indeed, much of the

Secretary’s argument in support of her preliminary objection asserting nonjoinder of indispensable

parties is premised upon the hardship the three counties listed above would face particularly with

respect to the November 2020 election should the ExpressVote XL machines be decertified prior

to that time. The November 2020 election, however, has obviously already passed at this point.

41

the fifty-six counties, and, because the November 2006 election has passed, the

fifty-six counties will not be prejudiced by a judgment in favor of [the e]lectors.”

Banfield I, 922 A.2d at 44. The Court further found it significant that, “[e]ven absent

a request, the Secretary could de-certify a DRE at any time based solely on the

statutory requirements for certification, and counties using certified DREs must be

prepared for that possibility.” Id.

In the instant matter, Petitioners likewise do not seek redress from the three

named counties and, because the November 2020 election has passed, those counties

will not be prejudiced by a judgment in favor of Petitioners. Further, because the

Secretary can decertify the ExpressVote XL machines at any time based solely on

the statutory certification requirements, any county using certified ExpressVote XL

machines must be prepared for that possibility. We find the Secretary’s attempts to

distinguish Banfield I to be unpersuasive. We, therefore, overrule the Secretary’s

preliminary objection asserting a failure to join Philadelphia County, Northampton

County, and Cumberland County as indispensable parties.

E. Time-Barred by Section 5522(b)(1) of the Judicial Code

(Counts I-IV, VI)

Finally, the Secretary argues that all disputed counts of the Petition should be

dismissed as time-barred under Section 5522(b)(1) of the Judicial Code, 42 Pa. C.S.

§ 5522(b)(1), which provides:

(b) Commencement of action required.--The following actions and

proceedings must be commenced within six months:

(1) An action against any officer of any government unit for

anything done in the execution of his office, except an action

subject to another limitation specified in this subchapter.

The Secretary argues that this action plainly is one “against an[] officer of a[]

government unit,” i.e., the Secretary, for “[some]thing done in the execution of [her]

office,” i.e., certification of the ExpressVote XL machines, and no other limitations

42

period applies. The Secretary claims that, because she certified the ExpressVote XL

machines on November 30, 2018, Petitioners’ claims accrued on that date. Thus,

Petitioners had until May 30, 2019, to bring their claims in a timely manner. The

Secretary argues that, because Petitioners did not institute their action until

December 12, 2019, their action must be dismissed as time-barred.

Petitioners counter that Section 5522(b)(1) of the Judicial Code does not bar

their claims because: (1) electors are injured every time they must use a deficient

voting machine, (2) many of the alleged injuries could not have been known to

Petitioners at the time the ExpressVote XL machines were initially certified for use,

and (3) sustaining the Secretary’s preliminary objection “would create a dangerous

and unintended rule that a voting machine’s use in the Commonwealth could never

be challenged by voters if the certification of that machine happened more than six

months prior.” (Petitioner’s Amended Brief at 29 (emphasis in original).)

Petitioners also submit that the operative date for purposes of calculating the

timeliness of the Petition is September 3, 2019, the date the Secretary issued the

Report. Petitioners argue in favor of using September 3, 2019, as the date their

claims accrued because the Secretary’s Report imposed “additional conditions for

certification” that jurisdictions using the ExpressVote XL machines must

implement. Petitioners add that concluding otherwise would disincentivize the

exhaustion of administrative remedies and “render superfluous” the Secretary’s

ongoing obligation to reexamine and approve electronic voting machines.

(Id. at 30-31.)

In response to Petitioners’ contentions, the Secretary argues that, to the extent

that Petitioners assert an “ongoing injury,” the Petition plainly challenges the

Secretary’s certification of the ExpressVote XL machines, which occurred on

43

November 30, 2018, and this Court has rejected the argument that a continuing

violation tolls the statute of limitations in any event. See, e.g., Fleming v. Rockwell,

500 A.2d 517, 519 (Pa. Cmwlth. 1985) (rejecting plaintiffs’ “argument as to the

existence of a continuing violation that precludes the running of the statute of

limitations” and explaining that “a statute of limitations begins to run . . . when the

plaintiff could have first maintained the action to a successful conclusion”). The

Secretary further argues that Petitioners failed to allege any facts or otherwise

demonstrate that some of the alleged deficiencies with the ExpressVote XL

machines could not have been known to them at the time of initial certification and

that Section 5522(b)(1) of the Judicial Code is not subject to any sort of “discovery

rule” under the law. The Secretary also contends that, insofar as Petitioners argue

that imposing a six-month limitations period would preclude challenges to voting

machines if the certification of the machines occurred more than six months prior to

the asserted challenge, that is the very purpose of Section 5522(b)(1), which is

supported by various policy considerations.

The Secretary adds that, assuming the process for requesting reexamination

in Section 1105-A of the Election Code constitutes an administrative remedy that

must be exhausted prior to filing suit, allowing a statute of limitations to run only

after an administrative remedy has been exhausted would effectively nullify the

statute of limitations, as it would permit a petitioner to revive stale claims by simply

filing a petition for reexamination and then filing suit within six months of the

petition’s resolution. The Secretary notes that even assuming the limitations period

should be tolled during the period of time needed to exhaust administrative remedies,

the six-month limitations period had already expired at the time Petitioners filed their

Reexamination Petition on July 16, 2019. The Secretary also argues that the

44

Report’s “additional conditions” did not render the original certification unlawful in

some new way, thus enabling the limitations period to “restart,” and that to conclude

otherwise would discourage the Secretary from making a good faith attempt to

address concerns raised in reexamination petitions.24

Assuming arguendo that Section 5522(b)(1) of the Judicial Code applies

herein as the Secretary alleges, we conclude that Petitioners’ suit is not untimely

under that provision. As noted, Section 5522(b)(1) requires that “[a]n action against

any officer of any government unit for anything done in the execution of his office”

be commenced within six months. 42 Pa. C.S. § 5522(b)(1). Petitioners challenge

the Secretary’s certification of the ExpressVote XL machines. Though the Secretary

is alleged to have initially certified the ExpressVote XL machines on

November 30, 2018, she also is alleged to have maintained that certification

pursuant to the Report issued on September 3, 2019, in response to Petitioners’

Reexamination Petition. In this regard, we note that Section 1105-A of the Election

Code provides that a request for reexamination of an EVS may be submitted “at any

time” and that the Secretary must act on the request, thereby permitting continual

reassessment of the appropriateness of an EVS’s certification.

25 P.S. § 3031.5(a)-(c). Thus, while the parties dispute which date between the

Secretary’s initial certification decision and the issuance of her Report is the proper

date of accrual of Petitioners’ claims, we conclude that any distinction between the

two is of no consequence in light of Section 1105-A, as both actions by the Secretary

24

The parties also spend a significant portion of their argument on this preliminary

objection disputing the proper characterization of the nature of Petitioners’ action, i.e., whether it

is an action sounding in mandamus or an action for declaratory and injunctive relief, as well as the

sovereign immunity implications attendant to that determination. At bottom, however, the

Secretary argues that Section 5522(b)(1) of the Judicial Code applies to bar Petitioners’ action

irrespective of the nature of the action.

45

resulted in the certification of the ExpressVote XL machines. As Petitioners

submitted their Reexamination Petition on July 16, 2019, the Secretary issued her

Report on September 3, 2019, and Petitioners’ instant suit was filed within six

months of that date on December 12, 2019, their Petition is timely under

Section 5522(b)(1) of the Judicial Code. Thus, we overrule the Secretary’s

preliminary objection challenging the timeliness of the Petition.25

IV. CONCLUSION

For the reasons set forth above, we sustain the Secretary’s preliminary

objection as to Count V to the extent that the provisions relevant to that count are no

longer included in the Election Code, and we overrule the remaining preliminary

objections.

P. KEVIN BROBSON, Judge

Judge Covey did not participate in the decision of this case.

25

While we acknowledge the Secretary’s concerns regarding use of the reexamination

process to “nullify” any limitations period, the Secretary fails to appreciate that Section 1105-A of

the Election Code allows for a reexamination request at any time and requires her to act on the

request. We further note that such concerns implicate policy considerations more appropriately

directed to the General Assembly.

46

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

National Election Defense Coalition, :

Citizens For Better Elections, :

Rich Garella, Rachel A. Murphy, :

Caroline Leopold, Stephen Strahs, :

Kathleen Blanford, Sharon Strauss, :

Anne C. Hanna, Raphael Y. Rubin, :

Robert F. Werner, Sandra :

O’Brien-Werner, Thomas P. Bruno, Jr., :

Roger Dreisbach-Williams, and :

Jeff R. Faubert, :

Petitioners :

:

v. : No. 674 M.D. 2019

:

Kathy Boockvar, :

Secretary of the Commonwealth, :

Respondent :

ORDER

AND NOW, this 18th day of October, 2021, the preliminary objection filed by

Kathy Boockvar, Secretary of the Commonwealth, (Secretary) raising a demurrer to

Count V of the Amended Petition for Review Addressed to the Court’s Original

Jurisdiction (Petition) is SUSTAINED, and that count is DISMISSED. The

Secretary’s remaining preliminary objections are OVERRULED. The Secretary is

hereby ordered to file within 30 days of the date of this order an answer to the

remaining counts of the Petition.

P. KEVIN BROBSON, Judge

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

National Election Defense Coalition, :

Citizens For Better Elections, :

Rich Garella, Rachel A. Murphy, :

Caroline Leopold, Stephen Strahs, :

Kathleen Blanford, Sharon Strauss, :

Anne C. Hanna, Raphael Y. Rubin, :

Robert F. Werner, Sandra :

O'Brien-Werner, Thomas P. Bruno, Jr., :

Roger Dreisbach-Williams, and :

Jeff R. Faubert, :

Petitioners :

: No. 674 M.D. 2019

v. :

: Argued: October 15, 2020

Kathy Boockvar, Secretary of the :

Commonwealth, :

Respondent :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

CONCURRING OPINION

BY JUDGE McCULLOUGH FILED: October 18, 2021

I concur in the result and analysis of the majority. I write separately to

emphasize my belief, as I expressed in my concurring and dissenting opinion in

Banfield v. Aichele, 51 A.3d 300 (Pa. Cmwlth. 2012) (en banc) (Banfield II)

(discussed at pages 14-29 of the Majority’s opinion), that the legislature, in requiring

that electronic voting systems “shall provide for a permanent physical record of each

vote cast,” intended that voting systems must produce a contemporaneous paper

record of each vote cast, so that voters can verify that their votes were recorded

accurately. Banfield II, 51 A.3d at 315 (McCullough, J., concurring and dissenting).

I explained:

In addition to not being permanent, the data stored

electronically on DREs [Direct Recording Electronic

Voting System] is not physical. If the General Assembly

intended electronic data to be considered “physical,”

section 1101-A of the [Pennsylvania Election] Code[1]

would have required DREs to provide for a

“permanent electronic record” (emphasis added) rather

than a “permanent physical record.” While a memory card

or computer chip containing electronic data is “physical,”

it is not the “record of each vote cast,” which is the clear

language of the statute.

Banfield II, 51 A.3d at 315.

Ultimately, in Banfield v. Cortes, 110 A.3d 155, 168 (Pa. 2015)

(Banfield IV), our Supreme Court found that the Election Code authorizes electronic

voting systems that do not utilize paper ballots.

Nevertheless, the voting public’s skepticism and discontent has

persisted since Banfield IV. They have voiced serious concerns that paperless

electronic voting machines do not reliably and consistently record, tally, and weigh

the votes of Pennsylvania’s citizens or produce any permanent physical record of

any elector’s actual vote. As this is now a matter for the legislature, I respectfully

urge that it review the Election Code to ensure these concerns are addressed and

assess whether amendment is warranted regarding the requirement that electronic

voting systems include the ability to create a voter verified independent and legible

record that can be used to audit voting results. As voiced by the electors, if votes

1

Act of June 3, 1937, P.L. 1333, as amended, added by the Act of July 11, 1980, P.L. 600,

25 P.S. §3031.1.

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are cast without the simultaneous creation of any printed confirmation or ballot that

can be retained by elections officials for comparison with what the machine records

electronically, the right to vote and the integrity of the election process will remain

compromised.

________________________________

PATRICIA A. McCULLOUGH, Judge

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