discussed at pages 14-29 of the Majority’s opinion
How later courts described this case
- discussed at pages 14-29 of the Majority’s opinion
Written by the judges who cited it.
The opinion
CONCURRING AND DISSENTING OPINION BY
Judge McCULLOUGH.
I concur with the Majority’s disposition of Counts IV, VI, IX, and X. However, I would grant Petitioners’ motion for summary judgment on Count I because the *315 Direct Recording Electronic Voting Systems (DREs) fail to “provide for a permanent physical record of each vote cast.”
Section 1101-A of the Pennsylvania Election Code (Code), 1 defines “Electronic voting system” as:
a system in which one or more voting devices are used to permit the registering or recording of votes and in which such votes are computed and tabulated by automatic tabulating equipment. The system shall provide for a permanent physical record of each vote cast.
(Emphasis added.)
Petitioners’ motion for summary judgment on Count I avers that there is no genuine issue of material fact that DREs fail to, “provide for a permanent physical record of each vote cast.” In my view, based on the record and clear statutory language, the electronic data stored in DREs is neither “permanent,” nor “physical.”
The experts’ analysis of the electronic data itself would render the data stored electronically on DREs as not “permanent” and subject to intentional and unintentional alteration which can occur in ways that are undetectable. Making “print-outs” of each vote does not constitute a “permanent physical record.” Respondent’s expert testified at his deposition that vote receipts could be printed out on receipt-grade, ribbon-like thermal paper but acknowledged that thermal paper can become unreadable in a matter of weeks. Such paper is simply not “permanent.” See Lopresti Report at 4-5 (Ex. 11); see also Jones Report ¶ 30-32 (Ex. 7). 2
In addition to not being permanent, the data stored electronically on DREs is not physical. If the General Assembly intended electronic data to be considered “physical,” section 1101-A of the Code 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.
Accordingly, I would grant Petitioners’ motion for summary judgment on Count I.
Judge PELLEGRINI joins.
. 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.
. As Dr. Lopresti explained, electronic data cannot be considered "permanent” because by its very nature it is subject to alteration and change:
Computer memory can be written or rewritten with incorrect data intentionally (as a result of software and/or hardware and/or human error) or unintentionally (as a result of a malicious attempt to alter the results of an election). Moreover, the act of writing computer memory is in principle undetectable; it leaves behind no physical evidence. ... Since even the initial writing of a record into computer memory is accomplished through the use of software and hardware intermediaries, there is no way for a human observer to confirm that what is written is in fact an accurate record of his/her vote.
Lopresti Report at 4-5 (Ex. 11); see also Jones Report ¶ 30-32 (Ex. 7).