These Two Lawsuits Could Force Philly to Purchase New Voting Machines

Two new lawsuits are challenging the certification of the ExpressVote XL voting machines used in Philadelphia.

Who knew something as seemingly mundane as voting machines could generate so much conflict? Then again, maybe we should know better — this is Philadelphia, where nothing related to politics is mundane. So of course the procurement process for the city’s 3,735 ExpressVote XL machines — which we wrote about here — was rife with allegations of impropriety, and an eventual City Controller audit concluded that the city had failed to ensure a transparent purchase without conflicts of interest.

And that was before two lawsuits challenging the ExpressVote XL’s certification in the first place.

The suits — one filed in state Commonwealth Court, one filed in federal court — share a central claim: that the machines, which were used by both Philadelphia and Northampton counties in November (not without some significant Election Day drama in the latter case), don’t satisfy the requirements of Pennsylvania’s byzantine 267-page election code.

Needless to say, the stakes are high. If a judge agrees, Philadelphia could potentially have to return its machines — and after all that conflict! — for new ones that are compliant. We’ve broken down the details of the two suits.

The Move Toward Paper Ballots

First, some backstory. The pendulum of how Americans vote has swung back and forth over the past 20 years. Among the aftershocks of the 2000 Florida hanging chad debacle was a move toward electronic voting machines, which would be less susceptible to human error — or so the thinking went at the time.

It was in this context that Philadelphia purchased the Danaher Shouptronic 1242, the machine (you know, the one with the blinking red lights) the city used from 2001 through April 2019. The Shouptronic tallied the votes electronically, leaving no paper trail. In today’s world full of fears of hacking and election interference, the lack of paper backup is becoming a dealbreaker. Now, states across the country are moving yet again toward paper ballot systems as a bulwark against would-be election interventionists.

But What Actually Is a Paper Ballot?

In the aftermath of the 2016 election, Green Party candidate Jill Stein sued Pennsylvania and other states where Donald Trump was victorious, demanding recounts. She took the suit to federal court, eventually settling in November 2018. As part of the terms, Pennsylvania agreed to only certify machines that produced “voter-verifiable paper ballots” — that is, ballots that not only produced a paper ballot on the back end, but also one that voters could see while casting their vote.

The Pennsylvania Department of State had already been advocating for a similar shift. In April 2018, the Wolf administration announced $14 million in federal funding that would support a new mandate for counties to implement voter-verifiable paper ballot systems by the November 2019 election. (In October of this year, Gov. Wolf also signed a bill creating $90 million in state funding for counties switching to paper ballots.)

So on the fundamentals, then, there’s little disagreement between the Stein settlement terms and the Wolf administration’s own stated position. The two sides diverge on a surprisingly complicated question: What actually constitutes a voter-verifiable paper ballot?

Here’s where the ExpressVote XL comes in. You’ll recall it works like this: A voter inserts a blank piece of paper into the machine, casts the votes on a touch screen, prints the ballot card, reviews it through a clear plastic screen, then sends it off back into the machine.

Stein’s lawyers argue the ExpressVote XL isn’t actually a paper ballot, because the printed-out card can only be reviewed from behind a screen, has no correspondence to what an actual ballot looks like, and is counted only by scanning its bar code. (Stein and company would prefer a system where voters mark the paper ballots by hand, and then a machine scans them to count the votes.) Believing Pennsylvania was violating the terms of the settlement agreement, Stein sued the state in November, claiming it must decertify the machines.

In response, the Pennsylvania Department of State argued Stein is operating in bad faith, because she and her team allegedly knew the ExpressVote XL was about to be certified in November 2018 and raised no complaint back then. “They inexplicably sat on their hands while counties across the Commonwealth invested enormous amounts of time and money in evaluating, purchasing, and introducing their voters to the ExpressVoteXL,” the state argues.

But even if Stein had filed suit sooner, the state argues it’s a moot point because the ExpressVote XL does in fact satisfy the terms of the settlement agreement. In the state’s response, election officials perform a post-election audit of the ExpressVote XL’s paper backups to make sure the bar code conforms to what’s written on the paper. That means, according to the state, it is ultimately the paper ballots — not the bar codes — that certify the election results. The state also makes a fairly convincing argument that there’s no difference between a ballot scanned by a bar code and a hand-marked paper ballot read by an optical scanner.

Some Election Security Experts Don’t Trust the ExpressVote XL

“The ExpressVote XL elevates the risk to unacceptable levels, and some of those risks can’t be mitigated mainly because of the hardware design,” says Marian Schneider, a former Pennsylvania Department of State official and president of Verified Voting, a nonprofit that advocates for transparent elections.

That view is the one echoed in the second lawsuit, which was filed in Commonwealth Court by two election security nonprofits and a group of Philadelphia and Northampton county voters. That suit makes a more fundamental argument against the ExpressVote XL — namely, that it’s vulnerable to election interference. At issue here is the fact that, once printed and verified by the voter, the ExpressVote XL’s paper ballot card passes back through the printing apparatus on the way to the storage compartment. If the machine were hacked, that could constitute an opportunity to modify a ballot after it had already been verified.

A spokesperson for Election Systems & Software, the ExpressVote XL’s manufacturer, wrote in a statement that “there is no ability for the voter’s selections to be changed” and that the printer head doesn’t touch the ballot card when the card comes back through the system; even if the printer head did move, the spokesperson said, the system has a way to detect any unusual motion.

There’s a second problem, according to Schneider: People are forced to confirm their ballots through a hard-to-see plastic screen, and on a sheet of paper that looks nothing typical ballots voters are used to. “You have to make sure people check their ballots,” Schneider says. “This machine does not facilitate that at all.”

People who study election security say an ideal system would instead look something like this: voters mark ballots by hand, which are then scanned by an optical scanner. People with disabilities use a digital ballot-marking device that would print an easily verifiable true ballot, unlike the paper card used by the XL.

There are plenty of different machines on the market that do just that. So why didn’t Philadelphia and other counties buy one of them?

To answer that, we might look to lobbying. According to public disclosures, Election Systems & Software has spent more than $150,000 on lobbying in Harrisburg since 2017. In Philadelphia, the company has been lobbying about a potential change to the city’s voting machines since 2014. Here, they’ve spent more than $735,000 on lobbying in the past five years.

“The voting machine market is dysfunctional,” says Chris Deluzio, policy director of Pitt Cyber. “You basically have three companies controlling 90 percent of the market — and they all have a history of lobbying the governments who buy from them. … I’m very skeptical of the products that some companies are putting out there.”

The result of all that lobbying? The ExpressVote XL is considerably more expensive than optical scanner systems. Philadelphia pays $27.59 per voter for its all-ExpressVote XL system. The average cost per voter in counties that use a hand-marked paper ballot system — plus ballot-marking devices for disabled voters — is just $12.67.

So What Happens Next?

In Georgia and Indiana, people have filed lawsuits trying to decertify non-paper-trail, out-of-date voting machines. The two Pennsylvania suits are unique in that the plaintiffs are trying to toss out a brand-new machine, and one that was just recently certified. “We’re in a little bit of uncharted territory,” says Deluzio.

Deluzio says it’s tough to say which suit is likelier to succeed. But there’s a real chance that a judge could decertify the ExpressVote XL, which would force Philadelphia to return its 3,735 machines and start the procurement process all over again. Election Systems & Software, meanwhile, “remains confident fully confident in the ExpressVote XL,” a spokesperson wrote, noting the machine “has been through hundreds of thousands of hours of testing” and was “proven to meet and exceed the highest standards for security, accuracy, and accountability.”

Deluzio still has his doubts. “I don’t know how the suits will come out,” he says, “but I’m glad we’re scrutinizing these machines.”