If someone managed to hack into an electronic voting system, the votes as they were actually cast would be lost, and an election could be stolen without anyone’s knowledge.
Computer security experts have long argued that electronic voting systems cannot be effectively secured against vote tampering at our current level of technological ability, and without an independent system for tracking votes, there is no way to compare the count as it is registered by the voting machines with the votes actually cast. Direct-recording electronic (DRE) voting systems are in use in the vast majority of Pennsylvania counties, certified for use despite clear election law stating that electronic voting machines must have absolute accuracy, must be tamper-proof, and must create a permanent physical record.
The Law Center, along with the National watchdog group Voter Action, attorney Michael Daly of the firm Drinker Biddle and Reath, and private attorney Marian Schneider are representing 26 Pennsylvania voters who filed a lawsuit against the Pennsylvania Secretary of State in August of 2006 and alleged that their votes were at risk of being lost or altered because of operational or security failures of the Pennsylvania-certified systems, and that such failures have in fact occurred on DREs in elections in Pennsylvania and in other states.
The case, Banfield v. Cortes, alleges that the improper certification of DRE voting machines violates the plaintiffs’ constitutional right to vote as well Pennsylvania election law. The lawsuit aims to decertify the DRE voting machines and put in place a secure and reliable voting system that can be meaningfully monitored.
Case Documents
- Complaint
- Opinion Dismissing Preliminary Objections
- Motion for Summary Judgment
- Opinion on Partial Summary Judgment
- Respondent’s Brief requesting Motion for Summary Judgment
- Petitioner’s Brief in Opposition to Motion for Summary Judgment
Case Updates
Commonwealth Court Denies Motion for Partial Summary Judgment
On August 29, 2012, in a 5-2 decision, the Commonwealth Court denied our motion for partial summary judgment. The Court determined that the votes on DRE machines and the thin thermal paper upon which results can be printed satisfy the Pennsylvania Election Code’s requirements for “permanent physical records.” It also concluded that DREs are secure and verifiable, and that the Secretary of State must report on the reexamination of DREs within fifteen days of the order. Judge McCullough, joined by Judge Pelligrini, dissented from the decision that the electronic data stored in DREs are “permanent” and “physical.”
Law Center Clients File Motion for Summary Judgment in Banfield
In September of 2011, the Law Center filed a Motion for Summary Judgment in Banfield. The motion argues that, because there is no genuine question of whether DRE voting machines create a physical record of votes capable of independent verification, we are entitled to prevail in the lawsuit as a matter of law.
Pennsylvania election law states that voting machines must “provide for a permanent physical record of each vote cast.” Though the Pennsylvania Secretary of State argues that DRE voting machines technically comply with the language of the statute, the uncontested fact remains that they do not and cannot provide a physical copy independent of their electronic records, as would be needed to verify election results.
Pa. Supreme Court Refuses to Hear Appeal, Moving Banfield Forward
December 16, 2008 — Pennsylvania voters challenging the continued use of unverifiable electronic voting machines scored a victory when the Pennsylvania Supreme Court denied Secretary of State Pedro Cortes’ petition seeking permission to appeal a lower court ruling, allowing the voters’ case to proceed toward trial.
Following that ruling, Pennsylvania Secretary of State Pedro Cortés filed his petition before the Pennsylvania Supreme Court and further proceedings in the case, Banfield v. Cortes had been suspended pending the outcome of the petition. The order issued on Tuesday gives a green light for the voters to pursue their claims.
Commonwealth Court Vindicates Right to Secure & Reliable Voting Systems
In response to sixteen preliminary objections filed by Secretary of State Pedro Cortes arguing that our clients have no legal right to challenge Pennsylvania voting systems, the Commonwealth Court of Pennsylvania ruled in April of 2007 that voters have a constitutional right to secure voting systems, and that they can challenge the use of electronic voting machines lacking a system for voter verification or independent audit.
Also, the Court held that it had the power to order the Pennsylvania Secretary of State to re-examine the DRE systems in question, despite the Secretary’s contention that such an order violated the separation of judicial and executive power.