On April 29, 2020, following a three-day evidentiary hearing in federal court, Hangley Aronchick attorneys Mark Aronchick, Robert Wiygul, and Christina Matthias, along with paralegal Kim Ferrari, obtained a complete victory on behalf of their clients, Kathy Boockvar, the Secretary of the Commonwealth of Pennsylvania, and Jonathan Marks, the Deputy Secretary for Elections and Commissions, in litigation challenging the Pennsylvania Department of State’s certification of certain voting machines for use in Pennsylvania.
The challenge, which was brought by former Presidential candidate Jill Stein and other plaintiffs, grew out of a lawsuit filed in the wake of the 2016 Presidential election, in which Stein sought a recount (unsuccessfully) and also criticized Pennsylvania’s use of direct-recording electronic voting machines (“DREs”), which did not produce any contemporaneous paper record of the votes cast. While that lawsuit was pending, the Department of State undertook an initiative to phase out DREs and replace them with voting systems that produce voter-verifiable paper records of each vote. Such records not only permit each voter to verify her selections before casting her ballot, but also allow for robust pre-certification audits confirming the accuracy of election results. In November 2018, Plaintiffs and the Department of State agreed to settle the remaining portion of Stein’s lawsuit based on a commitment by the Department that all voting machines certified in the future would, consistent with the initiative already underway, produce voter-verifiable paper records and satisfy related criteria.
Two days after the settlement was signed, the Department certified the ES&S ExpressVote XL voting machine for use in Pennsylvania. The ExpressVote XL is known as an all-in-one voting machine because it both creates a paper ballot (based on the voter’s selections on an electronic touchscreen) and then, after the voter has had an opportunity to review and verify that ballot, scans the ballot and tabulates the vote. One significant advantage of the ExpressVote XL is that it can be used by voters with disabilities, obviating the need for them to utilize different voting technology that may be less familiar to poll workers. During the year following the certification of the XL, Philadelphia, Northampton, and Cumberland counties purchased ExpressVote XL machines, and Philadelphia and Northampton used them for the first time in the November 2019 election.
In late November 2019, Plaintiffs filed a motion alleging that the Department’s certification of the ExpressVote XL violated the terms of the parties’ settlement agreement, and sought an order requiring Secretary Boockvar to de-certify the machines in advance of the November 2020 election. Plaintiffs argued that the ExpressVote XL was vulnerable to hacking and failed to produce a “voter-verifiable paper ballot” as required by the settlement agreement. The City of Philadelphia and Philadelphia County Board of Elections intervened on the side of Defendants. After the parties submitted briefing, the Court, District Judge Paul Diamond of the United States District Court for the Eastern District of Pennsylvania, presided over a three-day evidentiary hearing in February 2020. Seven witnesses testified, including Secretary Boockvar and Plaintiffs’ voting-machine expert, a professor of computer science and engineering. Defendants also demonstrated the features and operation of the ExpressVote XL for the Court.
After reviewing the parties’ proposed findings of fact and conclusions of law, the Court issued a 41-page opinion denying Plaintiffs’ motion. Citing testimony elicited in Hangley Aronchick’s cross-examination of Plaintiffs’ expert, the Court found that there was “no truth in [the expert’s] ‘hacking’ testimony.” Indeed, the Court “largely discredit[ed]” Plaintiffs’ expert’s testimony as a whole. It found that “[t]he XL has many security features,” and that there was “no credible evidence even suggesting that … Pennsylvania ha[s] certified machines that can be ‘hacked.’” Based on the evidence presented at the hearing, including the demonstration of the machine by Defendants’ witness, the Court concluded that the XL machine “is reliable and easy to use,” producing a ballot that is “easy [for the voter] to read” and verify before casting her vote. Finally, the Court held that the XL machine satisfied each and every one of the settlement agreement’s requirements. In the Court’s words, “the Agreement was but a part of the Commonwealth’s ongoing Initiative to replace its DREs with machines that would create a voter-verifiable paper record. The XL does just that.”
Going further, the Court agreed with the Secretary that her affirmative defense of laches provided an independent basis to deny Plaintiffs’ motion. The evidence presented by the Secretary showed that Plaintiffs had unreasonably delayed in filing the motion, and that, as a result, granting the relief they sought would “have calamitous consequences” for Pennsylvania’s ability to administer an orderly election in, at the very least, November 2020. Accordingly, the doctrine of laches barred relief.
