By Peter Hall | Pennsylvania Capital-Star
A Pennsylvania appeals court found that electronic records of votes cast in the 2020 presidential election are not public records under the state’s Right-to-Know Law.
In its 5-2 ruling against prominent election denier Heather Honey, a Commonwealth Court panel reversed a Lycoming County judge’s decision. Writing for the majority, Judge Ellen Ceisler said the lower court erred by ruling the contents of ballot boxes and voting machines are inaccessible under an exemption to the public records law but not their digital equivalents.
“It would produce an absurd result if physical ballots were protected from public disclosure, but digital analogues of those very same ballots were freely available upon request,” Ceisler’s opinion said.
Judges Patricia McCullough and Stacy Wallace wrote separate dissenting opinions in which they argued the records produced by electronic voting systems are not covered by the Election Code’s exception and are distinguishable from the contents of ballot boxes or voting machines.
“The exception ensures ballot boxes and voting machines will be preserved and protected if a recount or recanvass is necessary,” Wallace said, adding that it would serve no purpose to deny public inspection of the electronic data which is randomized and contains no identifying information.
Honey, of Lebanon County, is a self-described election researcher and founder of an organization that set out to gather electronic voting records in an effort to compare them with official vote counts. Honey has been cited as the purveyor of a debunked assertion that more votes were cast in Pennsylvania’s 2020 General Election than there were voters.
Secretary of the Commonwealth Al Schmidt appealed the 2022 Lycoming County Common Pleas Court decision, which overruled an Office of Open Records decision barring access to the data by Honey and two Lycoming County voters.
The decision centers on the courts’ interpretations of Section 308 of the Pennsylvania Election Code, which provides that most election records are public except for “the contents of ballot boxes, voting machines and records of assisted voters.”
Schmidt argued that Section 308 of the election code exempts the digital records, known as cast vote records for three reasons:
- The records are the electronic, modern-day equivalent of ballots in a ballot box;
- Electronic voting systems like the optical ballot scanners used in Lycoming County qualify as voting machines; and
- Other provisions of the Election Code allow public access to the contents of ballot boxes and voting machines only when there are allegations of fraud.
Schmidt also argued that even if the Election Code is ambiguous, Commonwealth Court should defer to the Department of State’s interpretation that electronic voting systems are the modern equivalent of voting machines.
In the majority opinion, Ceisler said the court agreed that the election code is “not the model of clarity” on what constitutes a voting machine. But using common definitions, including that used by the U.S. Election Assistance Commission, electronic voting systems — including the optical ballot scanners Lycoming County uses — are voting machines.
Ceisler concluded the lower court wrongly distinguished the data produced by the electronic ballot scanners from ballots in a box.
“What is special about the ballots is not so much the form which they take, but the voting information which they contain,” Ceisler said.
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