Lawsuit to decertify Northampton voting machines allowed to advance

A Pennsylvania judge ruled a lawsuit to block the use of electronic voting machines used in Northampton County and elsewhere can move forward.

Commonwealth Court Judge Kevin P. Brobson on Monday rejected arguments by the state’s top election official that election security advocates and more than a dozen Pennsylvania voters lacked standing and had failed to make valid claims about the ExpressVote XL voting machines used in Northampton and Philadelphia counties.

The National Election Defense Coalition and Citizens for Better Elections filed a petition in January 2020 seeking a preliminary injunction requiring the state to decertify the ExpressVote XL electronic voting system for the primary and general election. It cited information from voters about security concerns and trouble using the machines and a “no confidence” vote by the Northampton County elections board, and said there is “no way to restore voters’ trust in the machines.”

Attorney Ron Fein, who represents the petitioners, said his clients look forward to reviewing documents and interviewing potential witnesses in the case.

“The court rejected every one of the secretary of state’s arguments,” Fein said. “The plaintiffs look forward to conducting discovery, examining the ExpressVote XL machine and presenting evidence it never should have been certified at trial.”

A spokesperson for the Pennsylvania Department of State said it had no comment on the decision. Brobson, who authored the opinion for the three-judge panel, is the Republican candidate for a seat on the state Supreme Court this November.

Lawyers for former Secretary of State Katherine Boockvar filed preliminary objections to the lawsuit, claiming the advocates failed to make factual allegations about the security of the machines that, if true, would constitute a violation of the election code. They argued that the allegations consist of theoretical deficiencies in the voting machines that fall short of requiring the court to interfere with the secretary’s decision to certify the machines, which were also purchased but not used by Cumberland County.

The petitioners identified vulnerabilities and deficiencies in the ExpressVote XL machines they claim violate the election code. They claim the machines have the ability to change votes before the paper ballots are secure because the machines and the software are vulnerable to manipulation. They note that a panel on the machines covering the disk drive and a memory card containing election results and software are accessible by voters and protected by a lock that can easily be picked. They also claim the machines violate the privacy requirement for elections and cite technical problems with the machines when they were first used in November 2019.

Brobson wrote that he agrees with the state that the groups and voters must show that the decision to certify the ExpressVote XL machines was “fraudulent, in bad faith, an abuse of discretion or clearly arbitrary,” but it is unclear from the facts alleged in the lawsuit whether that was the case. Further development of the facts in the case is needed to analyze the decision, he said.

The facts alleged in the lawsuit are also sufficient to allow the petitioners to move forward with claims that the certification of the machines violated voters’ constitutional rights, Brobson wrote.

He also rejected the state’s claim that the voters and advocacy groups lack standing, finding that they have an immediate and direct interest in ensuring that their votes are accurately recorded. Finally, he rejected the state’s claim that the suit must be dismissed because it does not include the counties. Brobson found that because the petitioners are not seeking a remedy from the counties, they need not be named as respondents. Further, he wrote, the counties should be prepared in the event the voting machines they choose are decertified because the secretary of state has the power to do that at any time.