Voters Appeal Unconstitutional Legislative Redistricting Plan, Offer Alternate Plan

UPDATE: Petitioner’s Brief to the Supreme Court Submitted – Read it here

On behalf of a group of thirteen Pennsylvania voters, the Public Interest Law Center of Philadelphia and the law firm Hogan Lovells filed an appeal on January 11th asking the Pennsylvania Supreme Court to reject the Pennsylvania Legislative Reapportionment Commission’s redistricting plan for the State House and Senate. The appeal to the Court charges that the plan, which would remain in effect for the next decade, “violates [the Pa. Constitution] on a pervasive, statewide scale.”

Though Article II, Section 16 of the state Constitution states that “[u]nless absolutely necessary no county, city, incorporated town, borough, township or ward shall be divided in forming either a senatorial or representative district,” the Commission’s plan splits counties, municipalities and wards 837 times in its districting for the House, and it splits the same communities 167 times for the Senate. The appeal explains that excessive splitting of communities “undermines the ability of the voters […] to secure meaningful and effective legislative representation” in the interest of their community.

Despite the Constitution’s clear language, the Commission’s plan does not attempt to explain why these splits are “absolutely necessary,” and indeed the lawsuit demonstrates that they could easily be avoided. An alternate plan designed by plaintiff Amanda E. Holt cuts the number of splits to less than half the Commission’s number while matching the Commission’s plan for population equality in each district. Holt’s plan also improves on the Commission’s compliance with the federal Voting Rights Act.

The voters’ challenge to the plan is being supported by the Pennsylvania League of Women Voters and Common Cause PA.

Read the full appeal
Read the full press release
More info on Amanda Holt’s alternate plan
More info on the Pennsylvania Legislative Reapportionment Committee and its plan

RECENT HACKS HIGHLIGHT VULNERABILITIES OF ELECTRONIC VOTING MACHINES AT CENTER OF LAW CENTER CASE

During a public testing period to evaluate a Washington, D.C. internet voting system, a team led by University of Michigan Professor Alex Halderman successfully hacked and took almost complete control of the system, which allowed them to change the votes previously cast by test voters. Despite the team’s only minimal attempts to hide their attack on the system, the election officials monitoring the test did not notice the intrusion for several days. Computer security experts have long argued that Internet-based voting systems cannot be effectively secured against outside threats at our current level of technological ability. (Read more about the hack here)

Professor Halderman's dramatic hack illustrated the vulnerabilities of electronic voting systems that are at the center of a lawsuit in which the Law Center is challenging the use of electronic voting machines in Pennsylvania. That suit, Banfield v. Cortes, brought with the National watchdog group Voter Action, attorney Mary Kohart of the firm Drinker Biddle and Reath, and private attorney Marian Schneider, is expected to go to trial in the Spring of 2011. Read more about the case here. Though the Pennsylvania voting machines are not Internet-based, there are important parallels with Professor Halderman’s successful subversion of the D.C. voting system that further undermine the reliability of Pennsylvania’s electronic machines.

In fact, electronic voting machines not connected to the Internet are still vulnerable to tampering. In 2008, Princeton Professor Andrew Appel demonstrated such vulnerabilities in the Sequoia DRE voting machines used in New Jersey, hacking the machines and taking full control of their operation. His full report, parts of which were previously sealed by court order, was recently released in full to the public. (Read the report here)

The root problem in each of these cases is the absence of a credible auditing system. Without an independent, non-electronic verification of the vote, there is no way to reliably compare the count as it is registered by the electronic voting machines with the votes actually cast. In both the D.C. system and the New Jersey machines, it was possible to change the internal audits, the protective redundant ballot images, and the protective logs so that the true votes were obliterated and the fake votes undetectable. If a malicious failure occurs in a solely electronic voting system, the votes as they were actually cast are lost, and an election could be stolen.

Professor Halderman’s attack showed how easy it is to get into an Internet-based system, and Professor Appel revealed similar vulnerabilities in non-Internet electronic voting machines. The failure of machines used in Pennsylvania to correctly count votes could go unnoticed until much later, as in Halderman’s hack, or – as Professor Appel demonstrated – hacks could occur entirely undetected. Appel even showed that the Sequoia machines could be programmed to steal votes in future elections without detection.

Professor Halderman's subversion of the D.C. voting system and the newly released details of Professor Appel’s hack of New Jersey’s voting machines have shown once again that because electronic voting systems lack a credible auditing procedure independent of their computer systems,  they simply cannot be trusted.


LINCOLN UNIVERSITY STUDENTS AND CHESTER COUNTY RESIDENTS SETTLE LAWSUIT CHARGING RACIAL DISCRIMINATION IN 2008 ELECTION
August 10, 2010 – Lincoln University students and Chester County residents have settled their federal lawsuit in which they alleged that the Chester County Board of Elections and Department of Voter Services deprived African-Americans in Lower Oxford East Township of their right to vote by assigning them to inconvenient and inadequate polling facilities. On Election Day 2008, hundreds of Lower Oxford East voters - most of them African-American - waited up to seven hours in the pouring rain to cast their votes. Those who were unable to wait left without voting.

"The voting process in the 2008 presidential election was a frustrating and time consuming process. With the changes coming, residents and students will have adequate facilities and a better experience," said Wanda Havelow, who waited six hours in the rain next to active train tracks to vote.
Read more about the filing of the case here.

“The Chester County Commissioner twice refused to move the Lower Oxford East polling location to Lincoln University because they wanted to deter African American students from voting. Under pressure of a lawsuit, they have now agreed to stop interfering with this basic American right. It is tragic that so many people were prevented from voting or inconvenienced by the County Commissioner playing politics with voting rights,” said Michael Churchill, an attorney with the Public Interest Law Center of Philadelphia.

As part of the settlement, the Board of Elections has agreed to return the Lower Oxford East polling place to the Lincoln University campus, where it had been in the 1990s. The County will notify all Lower Oxford East voters of the change in polling location. The County will seek to transfer a portion of Lower Oxford East north of Baltimore Pike to Lower Oxford West. Voters affected by that change will also be notified by mail that they will continue to vote at the Township Building. The federal court will retain jurisdiction over issues relating to the Lower Oxford East polling place through the 2012 presidential election, allowing plaintiffs to return quickly to the same judge if problems with the settlement arise.

”All people in this country have a chance to voice their opinion through the vote. Government with all of it responsibilities to the people should never demonstrate such little regard for the process that give people a sense of being free to have their voices heard,” said Golden English, who had taken the day off work to vote but left before casting a ballot in order to babysit his granddaughter.

The plaintiffs are represented pro bono by Phil Wilson, John E. McKeever and Nicole Edwards of DLA Piper LLP (US); and by Michael Churchill of the Public Interest Law Center of Philadelphia; Mary Catherine Roper of the American Civil Liberties Union of Pennsylvania; Bryan Sells of the American Civil Liberties Union Voting Rights Project; and Marian Schneider, Esq., a Chester County lawyer, election integrity and voting rights advocate.

Read the Settlement Agreement

 
REPORT ISSUED BEFORE 2010 ELECTION SUPPORTS VOTER CONCERNS ABOUT RELIABILITY OF ELECTRONIC VOTING MACHINES
The Election Reform Network issued a report on May 13, 2010 showing that the number of voters counted by electronic voting machines and the number of votes cast in Montgomery County, PA in the 2008 presidential election were rarely the same. The report documented discrepancies in three fourths of the election districts analyzed with differences of up to 47 voters per district. The report provides factual support for the contention made in the lawsuit challenging Pennsylvania’s use of electronic voting machines filed by the Law Center and co-counsel on behalf of Pennsylvania voters.

The direct recording electronic machines (or DRE’s) incorporate software that cannot be audited. If a recount is called, a record of the votes can be printed, but the original votes cast cannot be scrutinized. Montgomery County has been using the Seqouia AVC Advantage vote machine since 1996. The machine has caused controversy in New Jersey in the past.

The Law Center, along with National watchdog group Voter Action, attorney Mary Kohart of Drinker Biddle and Reath, LLP and private attorney Marian Schneider originally filed the case in 2006, and recently scored a victory when the court allowed discovery of the source code for the machines, allowing private citizens for the first time to engage experts to examine the software and its reliability.

Law Center attorney Michael Churchill said, “There are too many unanswered questions about why the numbers of voters signed in and the number of votes cast are so different at so many polling places. In fact,” he concluded, “the county is required to act in such instances.”

More about the case

STUDENTS AT HISTORICALLY BLACK COLLEGE CHARGE RACIAL DISCRIMINATION IN CHESTER COUNTY POLLING PLACES

January 20, 2010 – The Law Center’s Michael Churchill and a coalition of civil rights groups filed a federal lawsuit on behalf of African-American residents and Lincoln University students in Chester County, charging that the County Board of Elections and Department of Voter Services deprived African-Americans in Lower Oxford East Township of their right to vote by assigning them to inconvenient and inadequate polling facilities. Community members had warned county officials that the existing polling place could not handle the anticipated record number of voters. On Election Day 2008, hundreds of Lower Oxford East voters – most of them African-American – waited up to seven hours in the pouring rain to cast their votes. Those who were unable to wait left without voting. 

The lawsuit asks the court to order Chester County to return the Lower Oxford East polling place to the Lincoln University campus, where it had been in the 1990s, authorize federal elections monitors and award damages to residents who faced extreme difficulties or were prevented from voting in the 2008 general election.

“That this happened to Lincoln University students who walk the same halls as the great civil rights advocate Justice Thurgood Marshall once did, and to community members who live where he once lived, makes it an even more compelling case,” said Phil Wilson, lead lawyer for the plaintiffs. “This suit will help ensure that racial discrimination at the polls – a sad part of our national electoral legacy – is a thing of the past in Chester County." 

Lower Oxford East Township contains the largest concentration of African-American voters of any voting precinct in predominantly white Chester County, in large part because of Lincoln University, an historically African-American university.  The Lower Oxford East voting precinct made national news in November 2008 as some voters waited literally all day to cast their votes.  Many voters could not wait that long and were unable to vote.  As a result, actual voter turnout at Lower Oxford East was the lowest of any precinct in Chester County – just under 56%, compared with nearly 80% turnout elsewhere.  And although African-Americans make up more than half of the voting age population in Lower East Township, the African-American vote there was lower than in other precincts.

The lawsuit charges that the long lines at Lower Oxford East resulted from a combination of factors, most importantly the location of the polling place in a tiny community center that could accommodate only two lines of voters, a small number of privacy booths and a single ballot scanner.  Voting was slowed further by the failure of the Department of Voter Services to provide up-to-date voter rolls and frivolous challenges by a Republican poll watcher to young African-American voters – problems that did not occur at other polling places. The lawsuit also charges that the County Board of Elections refused to address the cramped conditions before the election despite requests by voting rights activists in anticipation of problematic circumstances due to high voter turnout.  

“Keeping your opponents from voting is not the American way to win elections,” observed co-counsel Michael Churchill of the Public Interest Law Center of Philadelphia.

The Law Center joins a team of attorneys representing the plaintiffs including Wilson, John E. McKeever and Nicole Edwards of DLA Piper LLP (US); Mary Catherine Roper of the American Civil Liberties Union of Pennsylvania; Bryan Sells of the American Civil Liberties Union Voting Rights Project; and Marian Schneider, Esq., a Chester County lawyer, election integrity and voting rights advocate.

Complaint

Press release

LAW CENTER REPRESENTS LINCOLN UNIVERSITY STUDENTS SEEKING A FAIR POLLING LOCATION

April 16, 2009 -- The West Chester, PA County Board of Elections rejected the proposal of petitioners who had asked to move a Lincoln University area polling place to the campus to avoid the recurrence of problems encountered during the 2008 presidential election. Instead they voted to move the polling place to another location equally inaccessible to the University, one of the Nation's oldest Historically Black Colleges and Universities.

The new polling place is "inaccessible to the majority of African-American voters and all other voters in the precinct," said the Law Center's Michael Churchill in a West Chester Daily Local News article. "They just moved it. It's clear the commissioners were not interested in maximizing voter turnout."  The Law Center is considering taking the matter to federal court.

Read the article: West Chester Daily Local "Commissioners move Lower Oxford polling place to municipal building"  

VICTORY FOR PENNSYLVANIA VOTERS - EMERGENCY BALLOTS MUST BE DISTRIBUTED WHEN MACHINES BREAK DOWN
October 29, 2008 - Judge Harvey Bartle III issued a decision in NAACP v. Cortes, where the Law Center is co-counsel representing the plaintiffs, granting preliminary injunction and enjoining PA Secretary of State Pedro Cortes to direct poll workers to issue emergency ballots immediately when 50% of voting machines in a precinct are inoperable. "The right to vote is at the foundation of our constitutional form of government. Ultimately all our freedoms depend on it. Protection of this right under the circumstances presented here is without question in the public interest," Judge Bartle said in his decision. Secretary Cortes issued a release the same day stating that his office would not appeal the decision and would comply with the Judge's order. Read more about the case below.
Read the Decision
The Philadelphia Inquirer, "Judge Says PA Must Provide Paper Ballots"


'A PERFECT STORM' IMPACTING THE RIGHT TO VOTE
October 23, 2008 - The Law Center, joining a coalition of Pennsylvania voters and civil rights groups led by the NAACP State Conference of Pennsylvania, filed a lawsuit today in federal court in Philadelphia seeking to ensure that voters receive emergency paper ballots on Election Day when 50% or more voting machines become inoperable at any polling site in the state.
Read the Press Release for a full description of the case

NB10.com report  - "Lawsuit: Paper Ballots Should Be On Hand In Pa."