This article is made possible through Spotlight PA’s collaboration with Votebeat, a nonpartisan news organization covering local election administration and voting. This article is available for reprint under the terms of Votebeat’s republishing policy.
By Carter Walker | Votebeat
Thanks to a new settlement between Pennsylvania and a coalition of election security groups, the commonwealth’s Department of State will soon require counties to publicly report voting machine malfunctions.
Counties are still awaiting details on what the program, which begins with this November’s municipal election, will look like. But experts say the reports could be the first of their kind, and could also present a unique opportunity to improve efficiency while combating the kind of election misinformation that has become routine in recent cycles.
The settlement caps a longstanding lawsuit, in which the election groups sued the state after a few counties adopted new voting machines that the groups argued were flawed.
“As fringe conspiracy theories and false claims about election results abound in our civil discourse, this case is a win-win for voters and for election officials who wish to protect both the transparency and the credibility of election results,” said Ben-Zion Ptashnik, president of the bipartisan National Election Defense Coalition, one of the plaintiffs. “It allows future elections to be safer from manipulations, and inoculates election technology from those wishing to undermine the credibility of our democratic institutions.”
Along with having the state direct counties to report malfunctions, the settlement agreement requires the department to give the public better opportunities to witness its voting equipment examination process and requires that the three counties using the voting machine, called the ExpressVote XL, upgrade to its latest software.
Along with the National Election Defense Coalition, the groups involved in the suit against the Department of State include the Pennsylvania-based Citizens for Better Elections, the election equality nonprofit Free Speech for People, and a cohort of several Pennsylvania voters.
Their dispute with Pennsylvania began in July 2019, following Philadelphia’s controversial selection of the ExpressVote XL as its voting system of choice.
The groups petitioned then-Secretary of the Commonwealth Kathy Boockvar to reexamine the machine and consider decertifying it for use in Pennsylvania elections, claiming the machines had a number of deficiencies affecting ballot security, voting secrecy, and disability access.
Manufactured by ES&S, the ExpressVote XL is a touch-screen voting machine known as a ballot-marking device. As an all-in-one voting system, it allows voters to select their choices, print those choices on a ballot, and have their votes counted through the use of a single machine, as opposed to a separate ballot scanner for tabulation.
Northampton and Cumberland counties also opted to buy the machines in 2019. That November, voters in Northampton County experienced touch-screen glitches as well as improper set-up of the machines by ES&S that led to incorrect vote tallies. Similar issues also arose in Philadelphia.
The election groups then sued the Pa. Department of State in December 2019, arguing that the state should not have certified the machines in the first place. The groups’ objections included the allegation that the ExpressVote XL’s administrative access panel was insecure and frequently unlocked; the machine required poll workers to enter voting booths to help spoil ballots if a voter made a mistake; and the machine stored ballots in chronological order, thus compromising their secrecy.
As part of the agreement reached last week, the secretary of state will instruct all counties using the ExpressVote XL — Cumberland, Northampton, and Philadelphia — to upgrade to the latest software version to address some of these issues.
Citizens for Better Elections’ President Kevin Skoglund, who spoke on behalf of the plaintiffs, said he was unsure how many of their complaints would be resolved by the machine upgrade, though he added that ES&S had resolved several of the issues the group sued over during the course of the litigation.
A spokesperson for ES&S confirmed that the upgrade addresses at least one of the concerns: the need for a poll worker to assist in spoiling a ballot. Voters can now spoil their ballot without the need for a poll worker to intervene.
Philadelphia confirmed it had already upgraded to the latest version of the software earlier this year, before the May primary. A Cumberland County spokesperson said the county is currently upgrading its machines to the latest software that the state has certified. Northampton county did not respond to requests for comment.
But the much more wide-ranging part of the settlement is the new requirement that counties submit malfunction reports. This rule applies to all counties, regardless of the voting machines they use.
The settlement says the secretary will direct all counties to submit reports of malfunctions — or declarations of no malfunctions — to his office within the 60 days following an election. The reports will then be posted to the department’s website within the next 45 days, with the secretary being allowed to make redactions for security, to protect proprietary information, or to exclude information that would “mislead the public.”
The settlement agreement says that a reportable “malfunction” would be a problem that prevents or delays a voter from casting a ballot or the votes from being tabulated.
As the administrator of the new program, the Department of State will be in charge of more clearly defining what exactly will count as a malfunction. Asked by Votebeat and Spotlight PA to explain what the definition would be and whether common issues such as paper jams would qualify, a spokesperson did not answer the question.
Jennifer Morrell, CEO of The Elections Group and a former election director, said she was concerned with a provision in the settlement that says anyone, not just a county election official, can report malfunctions.
“Just because someone says [they saw] something doesn’t always mean it is an issue,” she said.
She was also concerned that reports being publicized without proper context could lead to them being used in misinformation, and that a good model for such disclosures would be the Cybersecurity and Infrastructure Security Administration’s coordinated vulnerability disclosure process, which identifies, analyzes, and seeks to fix issues before they are publicly disclosed.
The settlement says counties should report whether a malfunction was fixed and how it was fixed, but does not bar disclosing that malfunction until it is fixed.
“Pennsylvanians can feel confident that their votes are accurately and securely counted, and this agreement will provide additional public transparency into the electronic voting systems used in the Commonwealth,” Secretary of the Commonwealth Al Schmidt said in a statement.
Skoglund said the purpose of the malfunction reporting was to see how well voting equipment is working in the field.
“What gets measured gets managed, and we want to have the ability to measure,” he said. “This gives us the ability to see if there are problems that need to be addressed. Those don’t have to be malicious, they could be just product defects.”
Skoglund gave examples of malfunctions he thinks the settlement requires officials to report: machines running out of ink frequently, experiencing paper jams, or ballots falling out of machines and onto the floor, something he said Philadelphia has experienced.
Skoglund said while the possibility exists that someone looking to sow doubt in election results could use this malfunction report database as a way to do so, the goal is to make voting equipment as secure and well-functioning as it can be.
“I think you can’t stop people from using good information for bad purposes, and I don’t think that’s a reason to not do quality control,” he said.
Nick Custodio, deputy city commissioner for Philadelphia, said the city is still reviewing the agreement’s provision on malfunction reports, but that “anything that can be used out of context to sow distrust in elections is always a concern.”
David Levine, a former elections director and now the senior elections integrity fellow at the Alliance for Securing Democracy, said he was not aware of any similar malfunction reporting programs around the country, and he feels it is a “significant development” which gives Pennsylvania the opportunity to be a leader on the issue.
“I think the secretary recognizes that we need to not only fight back false information, but to not back away from legitimate issues and sweep them under the rug,” he said. “I think Al [Schmidt] is one of the best I know at being able to do that, walk and chew gum at same time.”
Schmidt, a former Republican Philadelphia City Commissioner who was appointed by Democratic Governor Josh Shapiro as Secretary of the Commonwealth, is well-known for his work both proving and disproving claims of election fraud.
Levine said that while there may be people who try to “weaponize” good work on election integrity to “delegitimize elections,” that does not mean legitimate issues of concern can be ignored.
“This agreement does not mean Pennsylvania elections lack integrity, in fact I would say quite the contrary,” he said. “This is what good election officials who recognize their systems are good but imperfect do to move the needle forward.”
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