State officials unclear on backup plan if federal courts decertify voting machine

Besides the voting system targeted by this lawsuit, others with similar characteristics could be affected by a decertification ruling.

  • Emily Previti

Editor’s Note: This story was updated on Feb. 21 to include two objections from the Pennsylvania Department of State and this reporter’s responses. The indented and italicized sections are what was added to the story.

PHILADELPHIA – Pennsylvania doesn’t appear to have a backup plan if a federal lawsuit succeeds in getting at least one voting system banned before the presidential election.

U.S. District Judge Paul Diamond pressed Secretary of State Kathy Boockvar Tuesday on what might happen if he orders her to decertify the ExpressVote XL – the machine used by nearly 2 million voters in Philadelphia, Northampton and Cumberland counties – and if he applies his order to other devices.

“I can’t overstate how much chaos would ensue, frankly,” Boockvar said.

DoS says Boockvar’s “chaos” statement was referring only to the April 28 primary.

The discussion in court witnessed by this reporter was more nuanced. In the exchange prior to that statement, Diamond asked Boockvar about switching voting systems in response to a decertification order effective for the general election.

She replied: “I don’t know whether it is feasible.” He asked her the same about the primary and she said, “It wouldn’t be possible.”

Diamond then asked what would happen if he ordered decertification in a week or two (before the primary).

“There would have to be something,” she said. “But your honor, I can’t overstate how much chaos would ensue, frankly.”

County election directors already are dealing with the state’s first major election law changes in decades amid the higher turnout that comes during a presidential election, she said.

Here, Boockvar had been asked whether the state could order counties to switch voting systems, to which she responded: “Switching now in time for the (primary) election would be difficult.”

Boockvar then said Philadelphia would have a particularly complex task switching so quickly, given the number of voters, poll workers, precincts, etc.

“The immense size of this endeavor is overwhelming,” she said.

“We started this project in 2018 very intentionally so counties could have the option of getting this done in 2019.

“[It] still took 18 months in a non-presidential year. Everything takes longer, [takes] more resources, takes more preparation. It’s a very different magnitude of voters showing up, attention being paid, pressure put on poll workers, county election directors – it’s far greater in a presidential [election] year.

“Additionally, this year, …[there’s] Act 77, which makes more changes to pa election law in more than 80 years: no-excuse mail-in [voting], walk-in voting, in person, in the county election office. It eliminates straight-party voting.”

And when Diamond asked Boockvar how

counties would proceed if he barred them from using the ExpressVote XL, she didn’t have an answer.

“I don’t know how that would work,” she said. “But there would have to be some ability for voters to vote.”

Boockvar’s testimony kicked off arguments in the latest litigation tied to the 2016 recount attempt by former Green Party presidential candidate Jill Stein.

The outcome hinges on two main issues: One is whether the paper produced by the XL qualifies as a ballot. Another is whether votes can be verified before they’re cast on the touchscreen device.

Both conditions are listed as requirements for voting machines approved in Pennsylvania, according to the terms of a 2018 settlement agreement reached between Stein and the state.

Stein’s team went back to court in 2019 to petition Diamond to enforce the settlement’s terms by ordering Boockvar to decertify the XL, made by voting industry giant Election Systems & Software (ES&S).

They allege the XL doesn’t meet the state’s requirements, in part, because voters can’t look at a barcode and confirm it reflects their choices.

All systems approved in Pa. present a similar issue, Boockvar said Tuesday.

They rely on scanners that read code of some kind – not text – to tabulate votes on election night. Those results stand as official — and ballot text isn’t used for the final tally — unless post-election audits prompt a manual recount, she said.

The Stein team also claims the paper produced by the XL doesn’t qualify as a ballot under Pennsylvania’s election code and federal Election Assistance Commission standards because it only shows a voter’s selections, versus showing a voter’s picks and all possible selections.

In her testimony, Boockvar said officials have used a litany of terms — e.g., ballot, vote summary record, vote summary card — interchangeably to describe paper produced by voting machines over the past couple years.

In settlement negotiations, no one ever made it a point to nail down which phrase or definition to use to refer to the paper that voting machines should produce, DoS attorney Timothy Gates

testified Tuesday.

DoS says Gates testified that the second paragraph of the settlement term sheet defines paper produced by voting systems. That section describes it in two different ways: “voter-verifiable record” and “ballot on which each vote is recorded is paper.” The alleged ambiguity of that section figures prominently in this litigation. So, plaintiffs’ attorney Illan Maazel asked Gates about final settlement discussions about the terms within the second paragraph. Gates said that multiple terms had been used interchangeably up until that point among the parties.

Proceedings will resume Wednesday.

Deputy Secretary of State Jonathan Marks and election security expert Alex Halderman are on the list of witnesses remaining to testify.

If Diamond ultimately orders decertification, Boockvar testified, counties likely would be best to determine how to handle that.

She also said she doubts voting machine vendors would be able to produce enough machines for the three XL counties in time for the general election – let alone the April 28 primary (though plaintiffs now say they aren’t demanding an immediate ban, but do want one effective for the general election).

DoS stated Boockvar’s testimony Tuesday lead the plaintiffs to amend their position on when they’d want decertification to be effective. Asked Friday whether the timing was tied to anything that happened in court earlier that week, attorney Doug Lieb pointed to a response brief filed 2 months ago that says: “To the extent the Court finds it necessary, the Court can tailor any such order to avoid disruption to upcoming elections, including by making it effective before the general election in November 2020.” 

No matter what happens with the machines, voters can always use mail-in ballots or fill them out in person at their local election office, Boockvar said.

Up Next
Politics & Policy

Some hoped letting groceries, mini-marts sell wine would kill Pa.'s state stores. It hasn’t