Something Was Rotten in Pennsylvania
I was privileged to be a plaintiff along with Jill Stein on the exemplary lawsuit that challenged several critical election laws and procedures in the Commonwealth of Pennsylvania. When the suit was settled last November it resulted in a guarantee that (a) paper ballots will be used by 2020, and (b) post-election audits will be initiated in 2022.
We have far to go toward assuring full electoral integrity. Pennsylvania was, and is still, shamefully backward when it comes to rights of voters and ballot access. The state has even been called the poster child for gerrymandering. And, in the seven years I’ve lived here, apparently the only method by which one can seek redress is by lawsuits. To their almost singular credit, the Green Party has filed several such suits, thus leading the movement to enhance electoral integrity for Pennsylvania voters.
TWO KEY REVELATIONS
In the process of bringing the suit, two key revelations emerged. One was the absurdly complex rules for seeking a recount. Described as “Byzantine” by Stein’s attorneys, the paperwork process required 27,474 voters in 9,158 districts to bring notarized petitions to county election boards, in time for shifting, divergent and secret deadlines. Meanwhile, one court demanded that the 100-plus voters who petitioned for the recount post a $1 million bond to move forward with their case!
In addition, Stein’s suit pulled the curtain back exposing the seriously flawed voting machines that were used in most of the state, the Direct Recording Electronic (DRE) machines. We know that in the 2016 national election there had been reports all over the country of exit polls not matching up with voting machine results. This was especially the case in Pennsylvania, Michigan and Wisconsin.
In December of 2016, Jill Stein’s campaign initiated recount efforts in Pennsylvania, represented by Illan Maazel of the New York firm Emery Celli Brinckerhoff & Abady and John Papianou of the Philadelphia firm Montgomery McCracken Walker & Rhoads. Stein and Randall Reitz (a PA voter) filed an injunction requesting that the vote totals of the election not be certified until a recount could be performed. The complaint was thorough in its criticism of the recount process in the state: “This labyrinthine, incomprehensible, and impossibly burdensome election regime might make Kafka proud. But for ordinary voters, it’s a disaster.” Touché, counsel!
Not surprisingly, when faced with the demands for a recount and an examination of the voting machines, the Commonwealth of Pennsylvania fought back, defending its requirements to have a recount considered. The state also defended the so-called untamperability and reliability of the DRE machines. According to the Brennan Center for Justice, which has been urging states to replace all paperless voting machines, more than eighty percent of Pennsylvania’s voters used electronic machines that do not leave an auditable paper trail.
By January of 2017 it was becoming clear that Jill Stein’s suit had legs. Donations accumulated to support the continuing effort. Despite grumblings from some political gadflies, social media trolls, and even objections from certain quarters of her own Green Party, Stein proceeded with a complaint which gave the case standing. And although, in the end, precedent was ruled out in the settlement, the decision is nevertheless highly significant and far-reaching. It is likely to motivate efforts nationwide to address the problem of hackable machines with unverifiable votes.
JUST A PATTERN OF ERROR?
In my research for this article I was fortunate to have guidance from 2006 Green Party US Senate candidate Carl Romanelli. He directed me to public government links of vote totals which showed that, in my county (Montgomery) alone, there was excessive undercounting of presidential votes in every precinct I was able to check! This was disconcerting, to say the least. Was it a pattern of error or something more nefarious? How could a voter ever find out if the electronic voting machines would simply regurgitate garbage out from garbage in? or if they possibly had been hacked?
In their complaint against the state in the US District Court for the Eastern District of PA, Stein’s recount team alleged, among other things: “Because Pennsylvania’s voting machines were susceptible to hacking and its recount provision difficult to invoke, the Commonwealth had unconstitutionally abridged the (First Amendment) right to vote.” Stein asked for a forensic review of Pennsylvania’s electronic voting systems [note: in a related effort, the Greens recently won the right to inspect similar machines in Wisconsin].
Stein’s team submitted a meticulously researched recount request. It was denied by Judge Paul S. Diamond, essentially because it could not be immediately proven that there were any significant problems in the state with the machines and that a “twelfth hour recount order that Plaintiffs seek would disenfranchise six million Pennsylvanians.”
Clearly, the Court wanted to summarily dispatch the pesky Greens who are accustomed to ridicule, scapegoating, or getting ignored. But this time Stein had amassed public support toward correcting a problem that affects every voter in Pennsylvania.
AN UNCONSTITUTIONAL MESS!
Given the complexity of the rules and the abbreviated timeframe, it was no surprise that the Stein campaign was not able to complete any of the recount procedures. How can a candidate or voter prove there was fraud or mistakes in the vote total if the machines cannot produce verifiable results? With over 9,000 districts, how were the plaintiffs to initiate a recount in each one before the time to file such petitions expired?
Jill Stein managed to organize one hundred petitioners after the Court set a December 5, 2016 hearing date. She then asked for more time. The Court refused—and required the plaintiffs to post a $1 million bond! The Court did acknowledge that it would modify the bond until the hearing was over, but that’s a large risk no one should be obliged to take.
Stein’s team asserted that the time limits, fees, voter residency requirements and petition requirements “operate in tandem” to make recounts all but impossible for voters to challenge state-wide election outcomes. County Election Boards around the state were found to inconsistently enforce time limits for the filing of recount petitions and failed to provide notice as to when such petitions had to be filed in the first place. Their procedures were often inconsistent with state law. The suit asserted that Stein’s lawyers received conflicting instructions from state officials and could find “no consistent guidance regarding when each county had computed its vote and when the deadlines to file recount petitions would expire.” It was, in a word, an unconstitutional mess.
BEFORE: NO ONE COULD DEFINITIVELY AUDIT AN ELECTION
Stein and Reitz amended their complaint to include four additional representative PA voters, including myself. In January (2017) the State of PA moved to dismiss the whole case. The following month Stein et. al. filed a response alleging that 85% of PA voters cast their ballots on six DRE voting machine models which are “unreliable, vulnerable to interference and error, and susceptible to hacking,” and noted that, without a paper record of votes cast (“paper trail”), election officials and voters cannot ensure that the machines properly record votes.
What about the remaining 15% of voters? They cast paper ballots. That might seem to be more acceptable, but the ballots are tabulated using optical scan machines which can be hacked. The upshot is that no one can definitively audit an election in the state of Pennsylvania. One wonders why any administration or court would be against remediating this problem, considering the times in which we live.
Likewise, this could have been an opportunity for the Tom Wolf administration to rectify a perverse and embarrassing situation in regard to the egregiously complex recount process. Yet the state was intransigent about sustaining it. I cannot imagine any self-respecting attorney defending—or judge upholding—the PA recount rules with any seriousness in a courtroom.
A crucial point one must make is that the Green Party was acting in the interest of the voters. For that reason, it was disappointing to see the PA League of Women’s Voters choose not to join the suit, as requested by both Carl Romanelli and myself, even as amicus. Among the plaintiffs were voters from a variety of political parties. But it seems that the League was so concerned about the perception of being affiliated with the Greens in any way that they missed an opportunity to join an important nonpartisan suit.
A SUDDEN BREAKTHROUGH
By early 2018, the situation was looking inauspicious for Governor Wolf’s administration. One could only conclude that it was increasingly embarrassing for him and the Department of State as the case wore on. On the day that the lawyers for the state were to file their briefs to continue fighting Stein, Wolf sent out a surprise directive that all counties were to purchase paper ballot voting machines by the 2020 primaries!
Apparently, the administration came to recognize not only that the plaintiffs were correct but also that the state would be in jeopardy going forward in any close election. Once the recount procedures travesty had been exposed by Stein et. al., a future instance of systemic failure would be unconscionable. Some action needed to be taken.
The state government had embarrassed itself in trying to defend its backward recount procedures. Up until 2016 the procedures had never been truly tested, but anyone paying attention could have seen that an overhaul was needed. Stein’s lawsuit clearly revealed this. Voters then took notice that their legislature was complicit in a variety of electoral system iniquities, such as gerrymandering and ballot access suppression, as well as unverifiable voting.
AFTER: AUDITS WILL BE AUTOMATIC
A settlement was reached in November of 2018. Perhaps its most important provision is the stipulation that, as of 2022, automatic robust audits will be required before election results can be certified. Such audits will provide an essential safeguard by cross-checking paper ballots against machine totals using hand counts and the human eye for comprehensive verification.
A working group was to be formed by January 1, 2019 toward implementing the terms of the settlement. I was pleased to see that the capable Alex Halderman was slated to be in the group— the only member representing the plaintiff’s side of the lawsuit, as far as I know. The working group is to complete a written report by January of 2020. The PA secretary of state then will direct that pilot auditing occur in 2021 and that auditing be fully implemented by the 2022 general election.
Once the working group writes its report and dissolves, what the voter can expect in the future is unclear. A hard-won provision of the settlement was the right of the plaintiffs to reopen the suit if we find a reasonable basis to believe that the defendants are in non-compliance with the terms. But the best-case scenario will see new auditable voting machines enabling facilitated recount requests.
Hopefully, in the wake of the Jill Stein lawsuit, Pennsylvania has transitioned from a system in which it was all but impossible to audit to one that is capable of supporting an effective precertification auditing process. Extensive vigilance and monitoring on the part of electoral system reformers and voters will be called for.
To be sure, there are other very serious social and economic ills in my state such that a citizen could protest that contentions over recounts and voting machines may seem frivolous, a burden to the taxpayer and only a concern of the privileged. I think they would be wrong. Without a high degree of electoral system integrity, government loses trust and authority. A voter’s ability to initiate a recount or have their vote verified should matter to everyone because the true outcome of an election affects us all through policy and pocketbook.
By Emily Cook
Cook is a social worker living in southeast Pennsylvania. She received her M.S.W. from the University of Pennsylvania in 1998. She’s a longtime Green activist, having run for Princeton (NJ) Township Committee in 2001 and having served as Chair of the Montgomery County (PA) Green Party from 2014 to 2016.