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Oral Arguments in Electronic, Paperless Voting Case

The Supreme Court of Pennsylvania heard oral argument on September 10 in a case challenging the use of paperless electronic voting machines.

The case, Banfield v. Cortez, challenges the use of these machines on the grounds that they do not provide for a permanent physical record of the vote cast or allow for meaningful audit or recount of election results. Together with partners Drinker Biddle & Reath LLP, and lead attorney Marian Schneider, the Law Center represents a group of petitioners from all over Pennsylvania who live in counties that use such voting machines.

Michael Daly of Drinker Biddle & Reath argued the case for the petitioners, emphasizing that when the state legislature enacted the current voting-machines statute in 1980, it was very concerned about all-digital systems, which would not generate any record of a voter’s intent. Without the safeguard of a permanent physical record, there is no means to recount ballots or to identify fraud or error in the tabulation of results.

Daly also noted that the right to vote is fundamental, triggering strict scrutiny. He cited optical scan machines and electronic ballot markers as technologies used in some Pennsylvania counties that satisfy all of the petitioners’ concerns.

Representatives of the state argued that no election system is free from the risk of tampering, and that the Court should defer to the Secretary’s discretion about which machines are safe enough. He contended that Pennsylvania has run 16 elections without incident since this case began, but acknowledged in response to a question from the bench that if there had been undetectable fraud or malfunction, no one would know.

The Court is likely to rule on this issue by the end of 2014.

Click here to read more about this case.

For additional coverage on the oral arguments: