In moving last November to scrap the voting machines, Stein and several Pennsylvania voters argued that the state's move to use the equipment in the 2020 election season violated an agreement to settle a 2016 lawsuit that Stein brought against state election officials. That suit challenged the state's decision to use direct recording electronic voting machines that recorded votes only electronically without a paper trail in the 2016 elections, in which Stein had run a failed presidential bid.
The agreement required the state to switch to machines that maintained a paper record, a move that the Commonwealth of Pennsylvania claimed it was planning to make even without Stein pressing her lawsuit. The city of Philadelphia and other counties around the state have since spent millions of dollars to buy ExpressVote XL machines, which are able to produce a paper record that can be reviewed by the voter and audited, according to state and local officials.
Stein and her fellow plaintiffs alleged that the XL machines don't comport with the terms of the settlement agreement, but U.S. District Judge Paul S. Diamond roundly rejected this assertion in a 41-page opinion issued Wednesday.
"The credible evidence shows that the XL is exactly the kind of voting machine contemplated by the agreement, and that Stein has not shown that I should grant her belated motion," Judge Diamond ruled.
He added that both the commonwealth and the city of Philadelphia — which along with the city's board of elections was allowed to intervene and join the state officials as defendants — had expended "considerable resources to demonstrate that Dr. Stein has based her motion on absolutely nothing" and that there was "no credible evidence even suggesting that the [U.S. Election Assistance Commission] and Pennsylvania have certified machines that can be 'hacked.'"
"Pennsylvania's computer expert testified credibly in 2016 that Stein's allegations 'are approximately as likely as the fact that androids from outer space are living amongst us and passing as humans,'" Judge Diamond wrote in his latest opinion. "Her allegations now — that the challenged voting machines are unreliable and thus violate the settlement agreement — are as baseless and irrational."
According to Judge Diamond, for the first eight months that the settlement was in effect, "Stein expressed no concern as the commonwealth certified various machines which, in turn, were purchased by counties throughout Pennsylvania." This included $30 million worth of machines that the city of Philadelphia purchased to use in this year's elections, according to the order.
Judge Diamond pointed out Wednesday that, given this investment, banning the voting machines would make it "impossible" for Philadelphia to hold its primaries — which were originally scheduled April 28 but have since been rescheduled for June 2 due to the coronavirus pandemic — or to participate in the general elections currently slated for early November.
Stein began raising concerns over the security and reliability of the newly purchased machines in late 2019, roughly a year after reaching her settlement with the state. She asserted that her challenge was motivated by her desire to promote election integrity, although Judge Diamond noted Wednesday that, as with her initial challenge to the state's voting machines, Stein has "repeatedly changed the basis for objection."
Stein first argued that the barcode on the paper card produced by the new machines couldn't be properly "verified" by voters. She later pressed the argument that the nature of the printed "ballot card" and the way these cards were printed were inconsistent with the settlement's terms, and finally moved to add the allegation that the ExpressVote XL machine "is uniquely vulnerable to hacking," according to Judge Diamond's ruling.
Pennsylvania voters Randall Reitz, Robin Howe, Shannon Knight and Emily Cook have also backed these assertions as fellow named plaintiffs in the suit, although Judge Diamond explained that he referred only to Stein throughout his ruling "because the record shows that Dr. Stein was and remains the moving force behind her motion, while her co-plaintiffs have played no discernable role."
Many of the plaintiffs' theories were backed by their only independent witness, computer expert J. Alex Halderman. Judge Diamond characterized Halderman's theories as "ill-considered" and noted that he "largely discredited" this testimony and instead relied on the assertions of witnesses employed by the government defendants, including Secretary of State Kathy Boockvar.
"Yet, Dr. Halderman's daft theories, promoted by Dr. Stein, will undoubtedly shake the belief of some in their government because Stein has convinced them that voting integrity is at risk in Pennsylvania," the judge wrote. "That is certainly the most unfortunate consequence of Stein's pointless motion."
Judge Diamond also pointed out that what Stein wants out of the lawsuit has continued to "evolve." She first requested that the machines should be decertified immediately but then, likely due to the realization that such a move would have made it impossible for Philadelphia to hold its primary or general elections, suggested scrapping the equipment after the primaries and later amended her request again to make the ban effective for the 2021 voting season, according to the judge.
"Dr. Stein's inability to decide what relief she wants underscores her motion's lack of factual or legal basis," Judge Diamond ruled.
Ilann M. Maazel of Emery Celli Brinckerhoff & Abady LLP, an attorney for the Stein and the other plaintiffs, told Law360 that her side "strongly" disagreed with the court's decision. But she noted that the plaintiffs were also "pleased with the overall progress Pennsylvania has made as a result of [Stein's] settlement, and look forward to the day when every single Pennsylvania voter can be sure of the integrity of their vote."
"When we filed this case, millions of Pennsylvania voters were stuck with antiquated, hackable machines with no paper trial," Maazel added. "Thanks to this litigation, those days are over."
Representatives for the Commonwealth and the city of Philadelphia did not immediately respond to a request for comment.
Stein and the Pennsylvania voters are represented by Ilann M. Maazel of Emery Celli Brinckerhoff & Abady LLP and John G. Papianou and Brett Waldron of Montgomery McCracken Walker & Rhoads LLP.
The voting officials are represented by Mark A. Aronchick, Robert A. Wiygul and Christina C. Matthias of Hangley Aronchick Segal Pudlin & Schiller and Joe H. Tucker and Dimitrios Mavroudis of Tucker Law Group. Philadelphia and its elections board are represented by Marcel S. Pratt, Benjamin H. Field, Danielle Walsh and Michael Pfautz of City of Philadelphia Law Department.
The case is Stein et al. v. Cortes et al, case number 2:16-cv-06287, in the U.S. District Court for the Eastern District of Pennsylvania.
--Editing by Michael Watanabe.
Update: This article has been updated to add comment from counsel for Stein and the other plaintiffs.
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