Pa. Judge Asks If 'Absolute' Privacy Is Realistic For Voting

Law360 (October 15, 2020, 4:17 PM EDT) -- A Pennsylvania state court judge asked if there was really such a thing as "absolute" privacy or accuracy, in arguments Thursday over whether voting machines used in three counties met the state election code's standards.

Commonwealth Court Judge P. Kevin Brobson posed the question as an attorney for the National Election Defense Coalition argued that the voting machines used by Philadelphia, Northampton and Cumberland counties shouldn't have been approved by the state because they couldn't meet the Pennsylvania Election Code's standards for "absolute" secrecy and accuracy.

"Is there such a thing as 'absolute privacy' or 'absolute accuracy' anymore?" the judge asked. "I'm not sure any voting machine meets the standard. … I have a hard time believing anything can be 'absolutely' anything."

An attorney for Pennsylvania's top election official, Secretary of the Commonwealth Kathy Boockvar, had asked the Commonwealth Court panel to grant her preliminary objections and dismiss the NEDC's challenge to the certification of the ExpressVote XL machines, contending that court precedent gave the secretary discretion to weigh the pros and cons of each voting system when approving which ones are certified for use.

The NEDC, Pennsylvania-based Citizens for Better Elections and more than a dozen voters had sued the state in December, claiming the ExpressVote XL system was flawed, vulnerable to hacking and replete with privacy and accessibility issues that meant it should never have been certified for use.

ExpressVote XL is a "hybrid" system, where voters make their selections on a touchscreen, but the machine prints out their choices on a paper ballot that is scanned to electronically record their vote, then drops into a receptacle beneath the machine as a paper backup to the electronic tally, the complaint said.

Ron Fein of Free Speech for People, representing the challengers, said in Thursday's video arguments that Boockvar abused her discretion and approved a system that did not adhere to the state election code's requirements for "absolute" secrecy and accuracy. He pointed to parts of the voting machines' operation that could require voters to expose how they voted to poll workers if they wanted to undo or "spoil" their ballot, or how stacks of paper-ballot printouts could be compared to the voter rolls to determine how people voted unless poll workers physically shuffled the papers.

"A voter can't spoil their ballot without a poll worker physically entering. … That could subject both the voter and the poll worker to criminal violations of the Election Code," Fein said. "The secretary said the machines didn't need 'absolute privacy,' but the Election Code says they need to be capable of 'absolute secrecy;' she said it didn't need to be 'absolutely foolproof' but the Election Code says it must be 'absolutely accurate.'"

Michele D. Hangley of Hangley Aronchick Segal Pudlin & Schiller, representing Boockvar, said the Commonwealth Court's 2013 decision in Banfield v. Cortes , dismissing a similar claim that purely-electronic voting machines should be decertified for lack of a paper trail, indicated that the court should not second-guess the secretary's performance of certifying voting systems.

"This is not a matter where the court decides what the best choice is. The court's job is not to certify voting technology," Hangley said. "Those are jobs that the legislature has given the secretary, and gave the secretary discretion to address."

She argued that the challengers had not adequately pled that Boockvar's decision was arbitrary, made in bad faith or was an abuse of discretion. But Judge Brobson said it seemed to him that the abuse-of-discretion standard was met in the complaint.

"'Bad faith' never came out of my mouth," Judge Brobson said. "You'd agree that an abuse of discretion can include an error of law. … Why isn't that enough?"

Hangley asserted that the secretary's job was to weigh all the advantages and disadvantages of a potential system in order to decide which ones best meet the state's needs and requirements, and the challengers couldn't just claim outright that she was wrong in her conclusion.

"They allege the secretary got the facts wrong, the weighing of the facts wrong. … The meat of the decision is how you weigh all the facts," she said. "A simple allegation that she violated the law is meaningless, is boilerplate."

The panel took the arguments under advisement Thursday.

Judges P. Kevin Brobson, Patricia A. McCullough and Michael H. Wojcik sat on the panel for the Commonwealth Court.

The challengers are represented by Lesley M. Grossberg, John F. Murphy and Jeanne-Michele Mariani of BakerHostetler LLP, and Ronald Fein of Free Speech for People.

Boockvar is represented by Michele D. Hangley, Robert A. Wiygul and Christina C. Matthias of Hangley Aronchick Segal Pudlin & Schiller, and Joe H. Tucker Jr. and Dmitri Mavroudis of the Tucker Law Group LLC.

The case is National Election Defense Coalition et al. v. Boockvar, case number 674 MD 2019, in the Commonwealth Court of Pennsylvania.

--Editing by Steven Edelstone.

For a reprint of this article, please contact reprints@law360.com.

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