How Pa.’s election security lawsuit settlement led to the last minute challenge of the state’s top-selling touchscreen voting machine

Experts say the agreement doesn't give plaintiffs or the public much chance to participate in its enforcement.

  • Emily Previti/PA Post

Three Pennsylvania counties could end up scrambling to replace brand new voting machines before the 2020 election – a situation stemming largely from the loose terms of the 2018 legal settlement that mandates new voting machines across the state.

Plaintiffs led by former Green Party presidential candidate Jill Stein say one system in particular never should have been certified in the first place and are asking a federal judge to force the state to decertify it.

The ExpressVote XL doesn’t meet the agreement’s requirements for paper-based systems that produce auditable results and let voters verify ballots before they are cast, they claim.

The Stein plaintiffs made their move about a month ahead of the year-end deadline for Pennsylvania counties to buy new machines, and well after most counties already spent or committed more than $150 million to buy machines certified by the Pennsylvania Department of State.

It also comes amid Northampton County’s investigation into why the XL tabulated results incorrectly in some races in the Nov. 5 general election. Philadelphia debuted the machines that day, too, with comparatively minor issues.

Stein spokesman Dave Schwab says they’re acting at this juncture, in part, because the settlement requires the parties to attempt to resolve any differences among themselves before seeking court intervention.

Why the settlement is tough to enforce

Legal experts told PA Post that the language of the Stein v. Cortes settlement makes it difficult to enforce, putting the plaintiffs in the position of having to make objections so late in the game. 

For example, there’s no requirement that the state demonstrate compliance — such as by filing documents that the court (and the public) can review.

Those filings are often required under the terms of a consent decree, which the Stein plaintiffs initially sought, according to Cobb. 

Without the teeth of a consent decree actively overseen by a judge, settlement terms can be tough to enforce — making them critical to cases of public interest, in general, and government reform litigation, in particular, says Jin Hee Lee, an attorney for the NAACP Legal Defense and Education Fund.

“It is really important for the court to continue to have jurisdiction to ensure that whatever problems and constitutional violations and so forth, are being remedied,” she says. “Otherwise, what might happen is [the parties] have to go back into court and start new litigation to ensure that the promises made in the settlement are being met by the defendant.”

While the court retained jurisdiction over the Pennsylvania settlement, the plaintiffs were required to sue for the court to consider intervening. 

“We got everything else that we wanted. In a negotiated settlement, everyone gives up something. And that’s what we gave up,” Cobb says, noting Stein’s team had spent “hundreds of thousands of dollars” on the Pennsylvania lawsuit while also pursuing election litigation in two other states.

Asked why officials dug in their heels on this point, DoS pointed to the state law requiring the governor and attorney general to sign off on any settlement or consent decree. The AG “doesn’t favor consent agreements for a variety of reasons,” DoS spokeswoman Ellen Lyon wrote in an email. 

AG spokesman Mark Shade referred to the law’s requirement to notify the General Assembly of any consent decrees involving state agencies, but declined further comment. 

In general, the notification triggered by a consent decree benefits legislators. They only have so long – a month, in this case – to intervene if they object to anything in the order, according to attorney Chester Corse, past president of the Pennsylvania Bar Institute. 

They have the same amount of time to appeal a settlement agreement, but without the benefit of automatic notice, Corse says. 

Drew Crompton, chief counsel for Senate President Pro Tempore Joseph Scarnati, says he only learned about the terms of the Stein v. Cortes settlement after it was finalized Nov. 28, 2018. 

The settlement doesn’t explicitly require legislative action, but implies it — so, state lawmakers considered legal action, he says. 

“You can’t fund the machines without an appropriation from the General Assembly,” Crompton says. “We could’ve  argued – and, I think, successfully – that you can’t bind another branch of government.” 

Ultimately, state lawmakers did not appeal. They knew many counties would’ve been seeking state funding to replace aging voting machines soon, anyway, independent of the Stein v. Cortes case, he says. 

They did, however, attempt to address future similar scenarios with a provision added to election reform legislation shortly before its final passage this fall: in the future, the governor of Pennsylvania give legislators six months’ notice before decertifying voting machines.

The plaintiffs also didn’t know about problems with the machine right away. And they’ve ended up learning about some state actions related to the settlement indirectly, via media reports and conversations with reporters and fair election advocates, Schwab says.

“What we are finding out is that even if the state says they are going to do something, we can’t be sure they will try to live up to that in good faith,” Schwab says.

Off-site loophole

The manufacturer of the ExpressVote XL Election Systems and Software — along with two other companies — had already completed testing by the time the Stein settlement was reached on Nov. 28, 2018. Combined, the three vendors would end up with contracts in 50 counties home to more than three-quarters of the state’s electorate.

While the Stein team was too late to witness testing of these machines, the DoS agreed to advise the plaintiffs of future on-site voting machine tests and allow them to send a representative to observe.

The plaintiffs’ concerns about the settlement grew after they learned that a different group — a coalition of fair election advocates and government watchdog groups — petitioned the state to re-examine the XL last summer.

The petition didn’t change anything — DoS doubled down on its certification of the XL, the machine by then selected in Philadelphia, Northampton and Cumberland counties.

But it raised concerns among Stein team’s about certain features of the XL and how the state had been carrying out the settlement agreement.

Schwab said at the time that they learned about the re-test from a PA Post reporter.

Technically, the state didn’t have to notify them because the testing happened entirely out of state. The settlement agreement only specifies notification for “on-site testing,” meaning tests conducted at the state capitol complex in Harrisburg.

DoS consultants conducted the entire XL re-examination at a certified voting system testing laboratory called SLI Compliance, based in Wheat Ridge, Colo.; one DoS representative watched via videoconference.

Typically, the state performs only portions of voting machine testing off-site. The public can watch most of the process, with reviews of security features and other sensitive matters handled in closed session.

And even though re-examinations don’t come up very often, the last one happened in Harrisburg and (mostly) in public, documents show. 

Critics — some of whom observed past certification sessions — slammed the state’s lack of transparency and departure from past practice when it conducted the XL re-test.

A DoS spokesperson said officials re-examined the XL off-site because they were focused mainly on security issues (petitioners have disputed that characterization) and would therefore be closed to observers, anyway.

But the Stein plaintiffs contend DoS violated “the spirit of the agreement” by going off-site for the XL re-exam and, Schwab says, to test Clear Ballot’s ClearVote 2.0 system. That happened Sept. 12 and 13, DoS confirmed.

DoS refused to answer questions about notifying plaintiffs or providing testing documentation, citing the Stein team’s renewed legal challenge.

“With the Clear Ballot examination, to do it entirely in Colorado — that really make it seems like after the settlement agreement was signed, on-site testing became a thing of the past. We’re no longer giving them the benefit of the doubt,” Schwab said. “It can’t be all security testing.”

State ‘refused to budge’

That holding the state accountable to the terms of the settlement is proving difficult comes as no surprise to some observers.

A binding consent decree could have alerted Stein’s team — and the public — to steps taken by the state as they happened, affording more time to address objections related to the XL and otherwise.

DoS “refused to budge” on agreeing to a consent decree, though, and the plaintiffs ultimately acquiesced to a settlement, according to David Cobb, an attorney who was the Green Party’s presidential candidate in 2004 and Stein’s campaign manager when she brought the case in 2016.

“A consent decree would’ve given us more engagement and involvement, step by step by step,” Cobb says. “But we actually thought – and I still believe — we got the best possible settlement we could.”

But from the beginning, some election watchdogs have criticized the agreement for being too vague.

For example, they flagged the fact that it doesn’t define “voter verifiable” and said that allowed for the possibility for counties to choose systems that rely on barcodes. They note that barcodes are vulnerable to tampering and can’t easily be reviewed by voters to ensure it reflects their votes — a point now central to the plaintiffs’ argument for reopening the case.

Stein’s camp also contends some voters have a hard time reading the printed ballot card through its plastic case, another strike against voter verification.

And they argue the paper used by XL isn’t a ballot because it doesn’t meet national standards nor those in Pennsylvania’s election code. The XL’s printout, for example, shows the voter’s choices only; the rules state ballots must display all choices and indicate which the voter picked.

Some of the same points were made by the group that challenged the XL’s certification last summer. They were not successful.

The objections raised by the Stein campaign in its Nov. 26 filing will be evaluated by a federal judge against the state’s forthcoming argument for staying out of court and keeping the XL in play.

The state has until Thursday to file a response; officials from ES&S and the city of Philadelphia have until Dec. 17 to file briefs in the case, U.S. District Court Judge Paul S. Diamond ruled Tuesday.

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