Public Interest Law Center of Philadelphia

VOTERS' RIGHTS

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"

VOTING CASE LIKELY TO BECOME WIDELY CITED AS ACTIVISTS SEEK TO MAKE THE VOTING PROCESS MORE USER FRIENDLY
March 9, 2009 - An article by the Law Center's Michael Churchill entitled "Philadelphia Federal Court Acts to Prevent Constitutional Problems from Election Day Delays" appeared in the Philadelphia Bar Association's new online publication "Upon Further Review." The article explains the potential impact of the Law Center's successful voting case NAACP v. Cortes for voters' rights advocates seeking to defend the view that the right to vote entails casting one's ballot without facing undue difficulty or obstacles and without fear that the vote will not be counted. The article states, "The decision was highly unusual because no reported case had previously found that potential delays from long lines in casting a ballot could create a Constitutional violation of the right to vote."
Read the Article in pdf format
Visit "Upon Further Review"

ADVANCEMENT IN ELECTRONIC VOTING MACHINE CASE - PENNSYLVANIA SUPREME COURT RULES IN FAVOR OF PLAINTIFFS

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.

"Across the country, states are realizing that electronic voting systems cannot be trusted," says the Law Center's Michael Churchill who serves as counsel to the plaintiffs along with the National watchdog group Voter Action, attorney Mary Kohart of the firm Drinker Biddle and Reath, LLP and private attorney Marian Schneider.

In April 2007, the Commonwealth Court of Pennsylvania had ruled that voters have a right under the Pennsylvania Constitution to reliable and secure voting systems and can challenge the use of electronic voting machines "that provide no way for Electors to know whether their votes will be recognized" through voter verification or independent audit. 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.

Read more about Banfield v. Cortes

Read the press release

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."

The New York Times, "Lawsuit is Filed Over Ballot Rule in Pennsylvania"

The Philadelphia Inquirer, "PA Lawsuit Seeks Paper Backup Nov. 4"

LAW CENTER ARTICLE EXPOSES POTENTIAL VOTING RIGHTS VIOLATIONS DUE TO INADEQUATE BACK-UP PLANS AT POLLING PLACES

October 12, 2008 - Experience at this Spring’s primary election suggests that large numbers of citizens are losing their right to vote because of long lines when electronic voting machines don’t work. In this op-ed piece, staff attorney Aaron Zisser argues that the Philadelphia election commission can and should take simple and necessary measures to prevent excessive wait times that threaten to deter voters on November 4.

"Spoiled Voters or a Spoiled Election?" Philadelphia Sunday Sun, October 12, 2008
Pdf version of article

COMMONWEALTH COURT: PENNSYLVANIA DIRECT RECORDING ELECTRONIC VOTING SYSTEMS FAIL BASIC TEST OF RELIABILITY

April 12, 2007 - The Commonwealth Court of Pennsylvania held that state certifications of electronic voting machines used in 56 counties around the state are deficient because the Secretary of State did not adequately test the machines to ensure they were safe and reliable and provide a means of voter verification or independent audit.

In its ruling the Court sharply criticized the Pennsylvania Secretary of State for certifying Direct Recording Electronic Voting systems (DREs) "that provide no way for Electors to know whether their votes will be recognized." The ruling came in an August 15, 2006 case filed by the Michael Churchill of the Public Interest Law Center of Philadelphia, Mary Kohart, a partner at Drinker Biddle LLP and Marian K. Schneider on behalf of 26 individual Pennsylvania voters who alleged that their votes were at risk of being lost or altered because of operational or security failures of the Pennsylvania-certified systems. The 4-3 court overruled the Secretary's sixteen preliminary objections which had claimed that the voters had no legal right to proceed with their case and no legal right to obtain the relief that they sought.

In the Complaint, the voters alleged that the DREs failed during elections in Pennsylvania and in other states by losing votes, registering votes for one candidate when the voter was attempting to vote for another candidate; causing high "undervote" rates; failing to register votes when the ballot contained only one question; counting votes twice; failing to print "zero tapes" to demonstrate that no lawful votes were stored on the machine prior to the election; printing "zero tapes" after votes had been cases; reporting phantom votes. The suit seeks to have the Secretary of State decertify the DREs.

According to the Court, the voters have a constitutional right to have their votes honestly counted. Here, the Court allowed the voters to proceed with their constitutional claim because they have no way of knowing whether their votes will be honestly counted by the DREs which "are not reliable or secure and that provide no means for vote verification or vote audit." The Court later wrote that "because Electors have a right to vote and because Electors have no way of knowing whether using the DREs affords them that right" the voters had alleged a violation of a civil right. The Pennsylvania Constitution, according to the Court "does not permit the use of DREs that are not reliable or secure and provide no means for vote verification or vote audit."

The Commonwealth Court also held that the voters can proceed with their claim that the DREs violate Pennsylvania's Election Code reasoning that there would be no way for county board of elections to conduct the required independent statistical recount unless the original vote were conducted on a system that allows a voter-verified independent record of the vote.

Finally, the Court held that it had the power to order the Secretary to re-examine the DRE systems "because Electors have alleged sufficient facts to support their claim that the Secretary's DRE certifications were arbitrary or based on a mistaken view of the law.
To read the Opinion, Click here.

LAW CENTER FILES CASE TO REQUIRE VOTER VERIFIED PAPER BALLOTS

The Public Interest Law Center of Philadelphia has filed suit on behalf of 26 citizens from around the state to ensure electoral integrity by requiring voting machines which have a paper ballot that can be verified by voters and used in any recount or audit.

The Pennsylvania Secretary of State has certified 7 electronic voting systems which do not have any independent permanent physical record of how a voter voted. These machines have been purchased by 57 of the 65 counties in the state. The suit asks the Commonwealth Court to order the State to decertify the machines.

The Complaint details numerous breakdowns and loss of votes by voting machines in both Pennsylvania and around the country. The machines are also subject to tampering and can not be made secure. An independent paper record is particularly important in light of those weaknesses of electronic machines.

The Law Center is co-counsel with Mary Kohart of Drinker Biddle & Reath LLP, who will be lead counsel, and Marian K. Schneider. The suit is being supported by a non-profit group, Voter Action directed by Lowell Finley and Holly Jacobson, which has brought suit in several other states, including New Mexico, Colorado, California, Arizona and New York.

Plaintiffs include Rev. James Moore, president of the Black Clergy of Philadelphia and Vicinity, J. Whyatt Mondesire, president of the NAACP Philadelphia Branch, and Rob McCord, chair of the Eastern Technology Council. The plaintiffs come from 11 counties in Pennsylvania and from both political parties.

"The General Assembly has specified that electronic voting machines must have 'absolute' accuracy, they must 'preclude tampering' and must have a 'permanent physical record'," according to Michael Churchill, who is handling the case for the Law Center. "The electronic voting machines certified by the state do not comply with these requirements."

Alternatives are available. Nine Pennsylvania counties are using paper ballots with optical scanners for all voters and three for non-disabled voters. Disabled voters can use a ballot marking device which is accessible, and which also produces a permanent paper record.

The Law Center was assisted in its work by attorney Bela Walker and by summer interns Myra Bayleson (law student) and Nat Olin (undergraduate).

To read a copy of the Complaint, click here.

NEW YORK ATTORNEY GENERAL SPITZER CALLS OPTICAL SCAN VOTING SYSTEMS "PROVEN TECHNOLOGY", VOICES CONCERN ABOUT ELECTRONIC VOTING

New York Attorney General Eliot Spitzer has published a statement voicing concerns about the reliability and even the potential for election fraud with electronic voting after speaking with local activist groups around New York state. In the statement Spitzer asks the state to implement "a vigorous testing regime" or consider an alternative to electronic machines called 'Paper Ballot with Precinct Based Optical Scan', also known as PBOS.

"Albany's implementation of the Help America Vote Act has been a well-publicized disaster," Spitzer said in the statement, "State government's failure of leadership is especially disconcerting in light of widespread reports of the unreliability and potential for fraud of electronic voting machines."

Optical Scan systems are popular in a number of other states. Within the past year, the states of New Mexico and Connecticut have decided to use statewide optical scan systems to comply with the Help America Vote Act(HAVA).The complete Optical scan system includes ballot marking technology which allows a paper ballot based system to provide accessible, private and independent voting for voters with disabilities. HAVA requires new voting machines for New York by 2007.

"Eliot Spitzer has recognized that both public funds and the integrity of the election process are better served by Precinct Based Optical Scanning of Paper Ballots", said Alan Goldston of Democracy for Westchester, a local Democracy for New York group. "Any election officials in New York who ignore his sober advice had better be prepared to explain why they would choose to both waste public money and jeopardize the election process."

The full text of Eliot Spitzer's statement follows:

"Albany's implementation of the Help America Vote Act has been a well-publicized disaster. It was a mistake from the start for the State Legislature to pass the buck to our counties rather than craft legislation that would have specified a single technology for adoption statewide. As a result, we're looking at the very real possibility of a patchwork of different voting machines with different levels of accuracy and accessibility throughout the State.

State government's failure of leadership is especially disconcerting in light of widespread reports of the unreliability and potential for fraud of electronic voting machines. The State must address these concerns through a vigorous testing regime or should consider certifying the proven and less expensive Paper Ballot with Precinct Based Optical Scan technology."