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April 15, 2007


Court rejects state's protests to voting machine suit

Electronic machines have security, accuracy flaws, activists claim.

By Joe Nixon and Brian Callaway Of The Morning Call


Pennsylvania's Commonwealth Court has dismissed the state's preliminary objections to a lawsuit challenging the certification of touch-screen electronic voting machines used in 57 counties, allowing the case to proceed.


In a 4-3 decision handed down last week, the court dismissed 16 objections filed on behalf of Commonwealth Secretary Pedro Cortés, whose office oversees elections in the state.


The decision doesn't mean critics of electronic voting machines will get their way. The court could still rule against them. Activists nonetheless applauded the decision.


''This is a victory for citizens,'' said Mary Ann Gould of Bucks County, who helped found a group called the Coalition for Voting Integrity. ''Winning this case is so important because it will give citizens confidence that we can prove the vote.''


Activists have criticized electronic voting machines first used last year by dozens of counties, claiming the machines may have security flaws and can't be adequately double-checked for accuracy.


Cortés, in a statement issued late Friday afternoon, said the court ruling ''was not a final determination of the facts of the case'' and dealt with a procedural matter in the case's early stages.


''Pennsylvanians should know that testing protocols and electoral procedures are in place to ensure fair, accurate and accessible elections,'' he said. ''The systems have worked well in the commonwealth, and some counties have used direct-recording electronic machines successfully for 15 to 20 years.''


The majority opinion, written by Judge Rochelle S. Friedman, says Cortés may have erred in deciding how and which voting machines could be certified for use. The voters who sued ''have alleged facts sufficient to establish that the Secretary's decisions in this regard were arbitrary or based on a mistaken view of the law,'' the opinion said.


Judge Mary Hannah Leavitt disagreed with the majority, writing that the court may not have the power to affect voting machines no matter the concerns raised by critics.


At a November court hearing in Philadelphia, attorneys for the Pennsylvania Department of State argued that the plaintiffs had no legal right to proceed. Among other things, the state said the suit was not filed soon enough and that it was based on allegations that failed in other courts. In addition, the state claimed it was speculation that errors could occur or machines could be tampered with by computer hackers.


Some 26 residents sued the state over the machines, including members of the Coalition for Voting Integrity, Northampton County physician Alan Brau and Allentown resident Cathy Reed. The residents say that the machines are unreliable and that the state's certification process is inadequate. They asked that voting systems be decertified in 57 counties, including Northampton, Lehigh and Bucks. The plaintiffs want the systems changed to produce paper printouts that will allow voters to verify their choices.


Mary Kohart, a lawyer for the plaintiffs, said in November that the goal wasn't to invalidate any elections, but to protect future voter rights. The case was also brought by the Public Interest Law Center of Philadelphia and Chester County attorney Marian K. Schneider.


Schneider said the case may not even be heard before this year's general election. ''We'd like to have a hearing before this November,'' she said. ''It depends on our opponents and how many obstacles they put in our way.''


The Department of State has defended its testing procedures and previously said electronic systems do retain a backup copy of ballots in case of a recount. They have said none of the electronic systems in use in the state can create a paper record that will protect voter privacy. The federal Help America Vote Act prompted the switch to electronic voting machines.


The state, in its statement Friday, said before being certified by Pennsylvania, a voting system must be examined and approved by a federally-recognized testing authority, which reviews both hardware and software. The systems are then examined by experts and approved by the Department of State before use anywhere in the state.


The state said it reviewed 19 systems and certified 13 for use in Pennsylvania. In the November election, it said 11 systems were used, including seven direct recording machines, three optical scan systems, and one hybrid.


The state also said procedures are in place to ensure election system security.


''No merits or facts were presented to the court regarding the issues of the case,'' Cortés said.


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