State Officials Unclear On Backup Plan If Federal Courts Decertify Voting Machine

Feb 19, 2020

Pennsylvania doesn’t appear to have a backup plan if a federal lawsuit succeeds in getting at least one voting system banned before the presidential election.

U.S. District Judge Paul Diamond pressed Secretary of State Kathy Boockvar Tuesday on what might happen if he orders her to decertify the ExpressVote XL – the machine used by nearly 2 million voters in Philadelphia, Northampton and Cumberland counties – and if he applies his order to other devices.

“I can’t overstate how much chaos would ensue, frankly,” Boockvar said. 

County election directors already are dealing with the state’s first major election law changes in decades amid the higher turnout that comes during a presidential election, she said.

And when Diamond asked Boockvar how counties would proceed if he barred them from using the ExpressVote XL, she didn’t have an answer. 

“I don’t know how that would work,” she said. “But there would have to be some ability for voters to vote.”

Boockvar’s testimony kicked off arguments in the latest litigation tied to the 2016 recount attempt by former Green Party presidential candidate Jill Stein.

The outcome hinges on two main issues: One is whether the paper produced by the XL qualifies as a ballot. Another is whether votes can be verified before they’re cast on the touchscreen device.

Both conditions are listed as requirements for voting machines approved in Pennsylvania, according to the terms of a 2018 settlement agreement reached between Stein and the state. 

Stein’s team went back to court in 2019 to petition Diamond to enforce the settlement’s terms by ordering Boockvar to decertify the XL, made by voting industry giant Election Systems & Software (ES&S).

They allege the XL doesn’t meet the state’s requirements, in part, because voters can’t look at a barcode and confirm it reflects their choices.

All systems approved in Pa. present a similar issue, Boockvar said Tuesday.

They rely on scanners that read code of some kind – not text – to tabulate votes on election night. Those results stand as official — and ballot text isn’t used for the final tally — unless post-election audits prompt a manual recount, she said.

The Stein team also claims the paper produced by the XL doesn’t qualify as a ballot under Pennsylvania’s election code and federal Election Assistance Commission standards because it only shows a voter’s selections, versus showing a voter’s picks and all possible selections.

In her testimony, Boockvar said officials have used a litany of terms — e.g., ballot, vote summary record, vote summary card — interchangeably to describe paper produced by voting machines over the past couple years.

In settlement negotiations, no one ever made it a point to nail down which phrase or definition to use to refer to the paper that voting machines should produce, DoS attorney Timothy Gates testified Tuesday. 

Proceedings will resume Wednesday.

Deputy Secretary of State Jonathan Marks and election security expert Alex Halderman are on the list of witnesses remaining to testify.

If Diamond ultimately orders decertification, Boockvar testified, counties likely would be best to determine how to handle that.

She also said she doubts voting machine vendors would be able to produce enough machines for the three XL counties in time for the general election – let alone the April 28 primary (though plaintiffs now say they aren’t demanding an immediate ban, but do want one effective for the general election). 

No matter what happens with the machines, voters can always use mail-in ballots or fill them out in person at their local election office, Boockvar said.

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