Banfield v. Cortés

Citation110 A.3d 155
Decision Date17 February 2015
Docket NumberNo. 83 MAP 2013,83 MAP 2013
PartiesMark BANFIELD, Sarah Beck, Joan Bergquist, Alan Brau, Lucia Dailey, Peter Deutsch, Constance Fewlass, Barbara Glassman, Marijo Highland, Janis Hobbs–Pellechio, Deborah Johnson, Andrew McDowell, James Michaels, J. Whyatt Mondesire, Mary Montresor, Rev. James Moore, Cathy Reed, Regina Schlitz, Alexander Sickert, Daniel Sleator, Susanna Staas, Stephen J. Strahs, Mary Vollero, Jeanne Zang, Appellants v. Pedro CORTÉS, Acting Secretary of the Commonwealth, Appellee.
CourtUnited States State Supreme Court of Pennsylvania

110 A.3d 155

Mark BANFIELD, Sarah Beck, Joan Bergquist, Alan Brau, Lucia Dailey, Peter Deutsch, Constance Fewlass, Barbara Glassman, Marijo Highland, Janis Hobbs–Pellechio, Deborah Johnson, Andrew McDowell, James Michaels, J. Whyatt Mondesire, Mary Montresor, Rev. James Moore, Cathy Reed, Regina Schlitz, Alexander Sickert, Daniel Sleator, Susanna Staas, Stephen J. Strahs, Mary Vollero, Jeanne Zang, Appellants
v.
Pedro CORTÉS, Acting Secretary of the Commonwealth, Appellee.

No. 83 MAP 2013

Supreme Court of Pennsylvania.

Argued Sept. 10, 2014.
Decided Feb. 17, 2015.


110 A.3d 158

Elizabeth Jan Goldstein, Esq., Dilworth Paxson LLP, Harrisburg, for Election Systems & Software Inc.

Marc J. Zucker, Esq., Weir & Partners, L.L.P., Philadelphia, for Sequoia Voting Systems.

110 A.3d 159

Katie Lynn Bailey, Esq., Michael Patrick Daly, Esq., Meredith Nissen Reinhardt, Esq., Drinker Biddle & Reath, L.L.P., Michael Churchill, Esq., Public Interest Law Center of Philadelphia, Benjamin David Geffen, Esq., Garrett Douglas Trego, Esq., Philadelphia, for Mark Banfield, et al.

David J. Berney, Esq., Law Offices of David J. Berney, Philadelphia, for Rutgers School of Law—Constitutional Rights Clinic, amicus curiae.

Steven Edward Bizar, Esq., Shawn N. Gallagher, Esq., Richard M. Simins, Esq., Buchanan Ingersoll & Rooney, P.C., Gregory Eugene Dunlap, Esq., PA Governor's Office of General Counsel, Kathleen Marie Kotula, Esq., PA Department of State, Robert J. Fitzgerald, Esq., Philadelphia, Brock Edward McCandless, Esq., Pittsburgh, for Carol Aichele.

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ.

OPINION

Justice STEVENS.

In this appeal, we must determine whether the Commonwealth Court erred in upholding the decision of the Secretary of the Commonwealth to certify certain direct-recording electronic voting systems (DREs) for use in Pennsylvania elections.1 The Commonwealth Court found that the DREs satisfy the certification requirements set forth in the Election Code2 and do not infringe on the fundamental right to vote as protected by the Pennsylvania Constitution. For the reasons that follow, we affirm the Commonwealth Court's decision to grant the Secretary's motion for summary relief.

I. Background

Before we consider the specific facts of this case, it is necessary to give a brief overview of our state law on voting system certification. The Election Code, enacted in 1937, initially permitted voting with paper ballots or mechanical lever voting machines. 25 P.S. §§ 2961 –71 (ballots); 25 P.S. §§ 3001 –18 (voting machines). In 1980, the General Assembly amended the Election Code to allow the use of electronic voting systems, which include optical scanners, punch card systems, and DREs. 25 P.S. §§ 3031.1 –3031.22 (electronic voting systems). Optical scanners (akin to standardized testing methods) and punch card voting allows voters to mark selections on a paper ballot that is subsequently scanned and counted by an automatic tabulation device. In contrast, DREs display an electronic ballot on a screen and allow an individual to vote using a button, dial, or touch screen. The DREs at issue do not produce a contemporaneous paper record of an individual's vote, but store each vote on internal memory. However, all of the DREs at issue are capable of printing the vote data at the close of the election; some DREs print on full sheets of paper while others print on thermal paper, which

110 A.3d 160

is commonly used for printing receipts. In addition, electronic vote data can be removed from the DRE on external memory devices, such as flash drives and memory cards, and connected to a different electronic system to tally the votes.

In October 2002, Congress enacted the Help America Vote Act (“HAVA,” Pub. L 107–252, formerly 42 U.S.C. § 15301, et seq., transferred to 52 U.S.C. § 20901, et seq. ) to reform the nation's voting process in response to the issues that arose in the 2000 presidential election. See generally Bush v. Gore, 531 U.S. 98, 121 S.Ct. 525, 148 L.Ed.2d 388 (2000). One of HAVA's main purposes was to authorize funding for the replacement of lever and punch card voting machines with other systems that are HAVA compliant.3 Although the Secretary urged counties to obtain electronic voting systems, each county retained discretion on whether to replace their voting systems, provided that the chosen system met federal and state requirements. Commonwealth of Pennsylvania State Plan as required by HAVA (Sept. 15, 2005). One such requirement in the Election Code is that an electronic voting system must be subject to a certification process before it is deemed authorized for use in an election. The Secretary has 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 Election Code].” 25 P.S. § 2621(b). A county board of elections may choose among the certified electronic voting systems and independently procure such system for use in its districts. 25 P.S. § 3031.4. The board of elections then appoints custodians to prepare the voting system for use. 25 P.S. § 3031.10.

Appellants, twenty-four Pennsylvania voters, filed this action in 2006 in the Commonwealth Court's original jurisdiction to challenge the certification of the six DRE models in use in Pennsylvania.4 Seeking declaratory, mandamus, and injunctive relief, Appellants claimed the Secretary should be ordered to decertify the DREs which do not comply with the Election Code and compelled to adopt more rigorous testing standards. In Count I, Appellants claimed the DREs do not meet the Election Code's definition of an electronic voting system as they cannot produce a “permanent physical record of each vote cast.” 25 P.S. § 3031.1. In Count II, Appellants contended the DREs do not “preclude every person from tampering with the tabulating element.” 25 P.S. §§ 3031.7(16)(iii), (17)(i). In Counts III and VII, Appellants asserted the Secretary failed to adopt adequate procedures to test the DREs' reliability, accuracy, and security. In Count IV, Appellants alleged the DREs do not allow officials to conduct a “statistical recount of a random sample of ballots ... using manual, mechanical or electronic devices of a type different than those used for the specific election.” 25 P.S. § 3031.17. In Count V, Appellants claimed voting officials cannot perform full

110 A.3d 161

recounts on DRE results. See 25 P.S. § 3154(e) (recount to assess discrepancy in election results), § 3261 (recount upon the voters' request). In Count VI, Appellants challenged the Secretary's denial of the voters' requests for reexamination of the DREs. See 25 P.S. 3031.5. In Counts VIII, IX, and X, Appellants claimed the DREs' certification interferes with their suffrage rights under various provisions of the Pennsylvania Constitution.5

The Secretary filed preliminary objections to the Petition for Review. The Commonwealth Court overruled these objections in a published opinion. Banfield v. Cortes, 922 A.2d 36 (Pa.Cmwlth.2007) (en banc ) (“Banfield I ”). In the discovery phase of trial, the parties obtained reports and deposition testimony from expert witnesses who reviewed the Secretary's examination reports. Appellants retained two experts, Dr. Douglas Jones, Ph.D., and Dr. Daniel Lopresti, Ph.D., who contended that the certified DREs do not meet several requirements of the Election Code and the Secretary's certification process is inadequate to determine whether electronic voting systems meet accuracy, security and reliability requirements. In addition, Appellants relied on studies conducted by other states that reveal security vulnerabilities in the DREs at issue. The Secretary's expert, Dr. Michael I. Shamos, Ph.D., J.D., opined that both the DREs and the Secretary's certification process conform to the Election Code and the Secretary acted within his discretion in certifying the DREs at issue for use in Pennsylvania.

In August 2011, Appellants filed a motion for partial summary judgment as to Counts I, IV, VI, IX, and X, arguing they were entitled to judgment as a matter of law on claims in which the parties did not dispute the relevant technical attributes of the DREs alleged to violate the Election Code. The Secretary filed a motion for summary relief, seeking the dismissal of Appellants' action in its entirety as Appellants did not demonstrate the DREs should be decertified and improperly sought mandamus relief. The Commonwealth Court scheduled en banc argument on Appellants' motion and directed that all other matters, including the Secretary's motion, be held in abeyance.

On August 29, 2012, the Commonwealth Court denied Appellants' motion for partial summary judgment in a published, en banc opinion. Banfield v. Aichele, 51 A.3d 300, 302 (Pa.Cmwlth.2012) (en banc ) (“Banfield II ”). The Commonwealth Court first rejected Appellants' multi-faceted claim in Count I that the DREs do not satisfy the Election Code's definition of an electronic voting system as they cannot “provide for a permanent physical record of each vote cast.” 25 P.S. § 3031.1. While Appellants contended this...

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