Banfield v. Cortes

• Decision Date: 12 April 2007
• Docket Number: No. 442 M.D. 2006.,442 M.D. 2006.
• Citation: 922 A.2d 36
• Parties: Mark BANFIELD, Sarah Beck, Joan Bergquist, Alan Brau, Lucia Dailey, Peter Deutsch, Constance Fewlass, Barbara Glassman, Marijo Highland, Janis Hobbs-Pellechio, Deborah Johnson, Robert Maxwell McCord, 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, Petitioners v. Pedro CORTES, Secretary of the Commonwealth, Respondent.
• Court: Pennsylvania Commonwealth Court

922 A.2d 36

Mark BANFIELD, Sarah Beck, Joan Bergquist, Alan Brau, Lucia Dailey, Peter Deutsch, Constance Fewlass, Barbara Glassman, Marijo Highland, Janis Hobbs-Pellechio, Deborah Johnson, Robert Maxwell McCord, 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, Petitioners v. Pedro CORTES, Secretary of the Commonwealth, Respondent.

No. 442 M.D. 2006.

Commonwealth Court of Pennsylvania.

Argued November 15, 2006.

Decided April 12, 2007.

Mary E. Kohart and Michael Churchill, Philadelphia and Marian K. Schneider, Berwyn, for petitioners.

Mark A. Aronchick, Alan C. Promer, John S. Stapleton, and Sozi P. Tulante, Philadelphia, for respondent.

BEFORE: SMITH-RIBNER, Judge, and PELLEGRINI, Judge, and FRIEDMAN, Judge, and LEADBETTER, Judge, and COHN JUBELIRER, Judge, and SIMPSON, Judge, and LEAVITT, Judge.

OPINION BY Judge FRIEDMAN.

Pedro Cortes, Secretary of the Commonwealth, (Secretary) has filed preliminary objections to the petition for review (Petition) filed in this court's original jurisdiction by Mark Banfield, Sarah Beck, Joan Bergquist, Alan Brau, Lucia Dailey, Peter Deutsch, Constance Fewlass, Barbara Glassman, Marijo Highland, Janis Hobbs-Pellechio, Deborah Johnson, Robert Maxwell McCord, 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 and Jeanne Zang (collectively, Electors). In the Petition, Electors set forth the following allegations.

The Secretary has certified Direct Recording Electronic voting systems (DREs) for use in Pennsylvania.¹ (Petition, ¶ 40.) 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. (Petition, ¶ 39.) The certified DREs produce no contemporaneous external paper record that would allow voters to verify that their votes were recorded accurately. (Petition, ¶ 41.) Because the systems are paperless, election officials have no independent physical record to use for auditing DRE vote counts. (Petition, ¶¶ 42-43.)

The various certified DREs have failed during elections conducted in Pennsylvania and other states by: (1) losing almost 13,000 votes; (2) repeatedly registering votes for one candidate when the voter was attempting to vote for another candidate; (3) causing very high "undervote" rates; (4) failing to register votes when the ballot contained only one question; (5) counting more than 1,500 votes twice; (6) failing to print "zero tapes" to demonstrate that no lawful votes were stored on the machine prior to the election; (7) printing "zero tapes" after votes had been cast, i.e., at a time when the machines should not have reported zero votes; (8) printing "zero tapes" that did not contain all necessary information; (9) reporting 100,000 "phantom" votes, i.e., votes that were not cast by any voter; (10) failing to record any votes in four precincts due to programming errors, forcing officials to certify election results without votes from those precincts; (11) failing to activate for use; or (12) failing to record write-in votes. In certifying the DREs, the Secretary did not confirm that malfunctions that occurred previously in other states had been fixed.² (Petition, ¶¶ 54, 58-59, 62, 64, 66-68.)

In addition to these operational failures, in 2006, a computer security investigator found that anyone with brief access to the AccuVote TSX could corrupt the software in a way that would be difficult to detect and that would render the DRE vulnerable to tampering. Moreover, the AccuVote TSX operating systems have a history of security problems. A person with access to the AVC Edge II for a short time could modify unencrypted voting results or replace the "chip" with one that would re-program the machine to give all votes to a particular candidate. The eSlate voting machine transmits unencrypted data along a cable to a central terminal, allowing an unauthorized person to access, monitor and alter data transmitted over the cable. The iVotronic system uses a personal electronic ballot (PEB) to activate and de-activate individual machines, allowing any corruption, malfunction or contamination in one machine to be transmitted to other machines. (Petition, ¶¶ 72-79.)

The Secretary's certification of such DREs is the result of the Secretary's deficient examination criteria. The Secretary's testing procedures do not approximate those that are customary in the information technology industry for systems that require a high level of security. The Secretary does not perform a "code audit," i.e., a review of a computer program's source code to determine whether it meets applicable standards. DRE vendors do not disclose the software programs they use, making it impossible for the Secretary to verify that the programs used in an election are the programs actually certified by the Secretary. To the extent that the Secretary relies on certifications of Independent Testing Authorities (ITA), which test DREs for manufacturers, ITAs are fraught with conflicts of interest, and they have repeatedly approved systems later found to have security problems. Moreover, Pennsylvania certification requirements are more stringent than those in the ITA process. (Petition, ¶¶ 81-94.)

By letter dated March 7, 2006, Elector Alan Brau asked the Secretary to re-examine one of the certified DREs. Brau enclosed a check for $450 and the signatures of ten qualified registered electors, as required by statute. By letter dated March 27, 2006, the Secretary denied the request, stating that the Secretary was not aware of any change to the DRE. The Secretary received three similar re-examination requests from other Electors, but the Secretary denied each one for the same reason. (Petition, ¶¶ 95-102.)

On August 15, 2006, Electors filed their Petition, setting forth ten Counts that allege violations of the Pennsylvania Election Code³ (Election Code) and the Pennsylvania Constitution. Essentially, Electors allege that the Secretary has used inadequate examination procedures in certifying DREs that: (1) are not reliable or consistent in the recording and counting of votes; (2) are not secure; (3) do not provide a means for voters to verify that the DRE properly recorded or counted their votes; and (4) do not provide a means for anyone to determine the actual votes cast in an election. Electors seek a judgment declaring that the Secretary has violated the Election Code and the Pennsylvania Constitution. Electors also seek an order directing the Secretary to de-certify the DREs, to establish uniform testing criteria that comply with the Election Code and to re-examine the DREs identified in the requests of Brau and the other Electors. In response, the Secretary has filed the following sixteen preliminary objections. For the reasons set forth below, we overrule the Secretary's preliminary objections.

I. Mandamus

In the first preliminary objection, the Secretary argues that this court should dismiss Electors' Petition because Electors seek mandamus relief but state no claim for which mandamus relief can be granted. We disagree.

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. Commonwealth, 518 Pa. 556, 544 A.2d 1305 (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, 507 Pa. 337, 489 A.2d 1360 (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 Corporation v. Gritsavage, 361 Pa. 607, 610, 65 A.2d 402, 403 (1949).

The Secretary first argues that Electors are not entitled to mandamus relief because decisions to certify DREs, to establish DRE testing criteria and to conduct re-examinations are discretionary. However, here, Electors have alleged facts sufficient to establish that the Secretary's decisions in this regard were arbitrary or based on a mistaken view of the law, i.e., either the Election Code or the Pennsylvania Constitution. Indeed, Electors allege that the Secretary decided to: (1) certify DREs that are not reliable or secure and that do not allow for vote verification or vote audits; (2) examine DREs without establishing uniform testing criteria that comply with the Election Code; and (3) refuse proper requests for statutorily-mandated DRE re-examinations. Thus, mandamus lies to compel proper action.

The Secretary next argues that Electors are not entitled to mandamus relief because Electors do not have a clear right to have the Secretary de-certify the DREs. However, because Electors have alleged sufficient facts to support their claim that the Secretary's DRE certifications were arbitrary or based on a mistaken view of the law, mandamus lies to compel proper action, i.e., de-certification of the DREs.

The Secretary also argues that Electors are not entitled to mandamus relief because Electors do not have a clear right to have the Secretary re-examine a DRE in a particular manner. (See Secretary's brief at 19.) However, Electors do not allege in their Petition that any Elector asked the Secretary to re-examine a DRE in a particular manner. Thus, we shall not consider this matter further.

Finally, the Secretary argues that Electors are not entitled to mandamus relief because Electors do not have a clear right...