State officials break silence on controversial ExpressVote XL voting machine

They laid out their position in 418 pages of affidavits, copies of emails and other documents filed in response to plaintiffs in a federal lawsuit.

• Emily Previti/PA Post
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  Emily is a reporter for WITF who’s been covering voting and elections since July 2019 as part of her former role with statehouse accountability news organization PA Post. She was the senior reporter for statewide public media collaboration Keystone Crossroads. Previously, she covered city hall for PennLive/The Patriot-News (Harrisburg, Pa.), was a watchdog and city hall reporter at The Press of Atlantic City and reported for the Northwest Herald. She is a graduate of the University of Pennsylvania.
  
  See other articles by Emily Previti for WITF.

 Matt Rourke / AP Photo

Shown is an ExpressVote XL voting machines displayed at City Hall, in Philadelphia, Wednesday, Oct. 2.

PHILADELPHIA – After weeks of silence, state officials have shed some light on their stance that the ExpressVote XL voting machine should remain in use, despite a shaky debut in Pa. during the last election and legal challenges over its shortcomings.

In their first public comments about the XL, they laid out their position in 418 pages filed last week in response to plaintiffs’ claims in a federal lawsuit over Pennsylvania’s election system.

That case was settled more than a year ago, but plaintiffs led by ex-Green Party presidential candidate Jill Stein recently asked a federal judge to enforce the settlement terms. They claim the Pa. Department of State hasn’t upheld the agreement’s parameters for upgrading voting systems statewide by the end of the year. And they’ve asked U.S District Court Judge Paul S. Diamond to order DoS to decertify the ExpressVote XL voting machine, the pick in three Pa. jurisdictions (Philadelphia, Northampton and Cumberland counties).

We parsed the state’s Dec. 12 document dump, just in time for a rebuttal from the plaintiffs Thursday. Here are our top takeaways:

1.               Plaintiffs’ procrastination crosses the line, state says: The Stein plaintiffs “sat on their hands” for months. By making this move now (so close to an election), they are behaving “recklessly” enough that it should trigger legal doctrines meant to prevent such scenarios from causing public harm or other damaging effects, according to the state.

“Their tactics have been remarkably ineffective and irresponsible,” DoS attorneys wrote in their latest filing. “They appear well-designed, on the other hand, to disrupt preparations for the 2020 elections and sow doubts in the minds of voters.” Either way, they conclude, the court shouldn’t entertain their request.

Plaintiffs have said the delay is partly attributable to them not knowing about the XL’s retest last summer until after it happened. 

But the state’s filing contains an email exchange between attorneys showing both sides knew the XL’s specs and that it was among the voting machines undergoing DoS tests during settlement negotiations in 2018. No one objected to the machine’s approval so long as regulators attached certain conditions to its certification (which they did), according to the email chain. 

2.               Out of time: If Judge Diamond grants the plaintiffs’ request and forces the decertification of the XL, election officials say they don’t have enough time to get new machines in place before the 2020 primary. Philadelphia would need between 18 months and two years “at minimum” to get a different voting system in place, according to Procurement Commissioner Monique Nesmith-Joyner’s affidavit filed Thursday. Last time, the process took 16 months – and that was sticking to an “aggressive timeline” that the city will consider extending in the future to foster more public participation in response to criticism that there wasn’t enough, Nesmith-Joyner said.

The city also had to figure out new logistics because the XL’s size and shape differ so much from its predecessor.

Cumberland County, which bought 400 XL machines a month ago, figures it would take at least 18 months, according to director of elections & voter registration Bethany Salzarulo.

3.               Key point, clarified? A central issue for the plaintiffs is that the paper used by the XL is what the Pa. code defines as a ballot card — and that it does not fit the state’s definition of a paper ballot. They’re seeking to enforce the settlement agreement, which says the state can only certify machines if “the ballot on which each vote is recorded is paper, they produce a voter-verifiable record of each vote; and they are capable of supporting a robust pre-certification auditing process.”

The device is described as a “paper voter-verifiable record” and “summary card,” by Dean Baumert, principal product manager for XL manufacturer Election Systems & Software, in an affidavit included in the state’s filing last week.  

4.               Ballots without barcodes present their own vulnerabilities and limited voter verification. Other systems involve scanning ballots with selections denoted by markings — whether made by hand or machine. Those setups are hackable, too. But all systems — including the XL — also include an auditable paper backup of votes that provides the opportunity to do a manual count if needed, Baumert says in his affidavit among documents filed by the state Dec. 12. 

5.               Practically impenetrable. Baumert also contends it’s basically impossible to hack ES&S products, at least without leaving a trail, due to logs kept on every machine. The logs note everything that occurs while the devices are running, including errors and unauthorized access attempts. Depending on the type of breach we’re talking about, however, detecting one could require someone to have an inkling that something’s amiss and check the logs. 

Another security measure Baumert points to is that the XL accepts only “certified media” such as USBs. Certification documents, however, show such hardware is the “off-the-shelf” type that anyone can buy relatively easily.

6.               Past context: State officials publicly pushed for Pa. to switch to all paper-based voting systems as settlement negotiations wore on. 

The state tried to have the case dismissed in a motion filed Feb. 9, 2018, citing directives issued that same day by Gov. Tom Wolf’s administration requiring the switch to paper-based voting systems during “the next few years.” 

That initial public directive targeted counties planning to switch systems voluntarily, the Associated Press reported at the time, and didn’t mention a deadline, decertifying machines, nor auditing procedures, plaintiffs’ experts noted. 

But the next one, issued in April 2018, did set a deadline and required all counties to buy new voting machines just as the state launched the first in its series of vendor demos across the state. 

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