MEDIA — One of the advocates for new voting system wants the Delaware County Board of Elections to know one of the machines they are considering could leave the county open to a legal challenge, although the state and the company say it works.
Kevin Skoglund of Citizens for Better Elections joined Ronald A. Fein and John C. Bonifaz from Free Speech for People and Susan Greenhalgh from the National Election Defense Coalition in asking the Pennsylvania Department of State to re-examine its certification of the Election Systems & Software ExpressVote XL machine. They claimed there were 10 deficiencies associated with the ExpressVote XL ranging from the ability of it to tamper with ballot cards, to chronological ballot storage, to ballot secrecy issues.
"This petition has 10 things we think violate the law and so we asked that they take another look at it," Skoglund said. "They only investigated three of the things, three out of 10 ... they potentially created this weird legal situation where the machine can be purchased but may not be legally able to use b/c there’s seven more things that they didn’t look at.”
The Department of State issued a report on Tuesday that ES&S officials said maintains its certification, reaffirms that the macine meets all of the requirements and found that no claims made by the petitioners were supported.
"ES&S is pleased with this outcome and certification in Pennsylvania," said Steve Pearson, senior vice president of certification at ES&S. "We believe wholeheartedly in the security, accuracy and reliability of the ExpressVote XL and ES&S looks forward to working with state and local officials to provide safe and secure elections for voters in Pennsylvania."
State Department officials issued their own statement, provided by Wanda Murren, director of the department's Office of Communication and Press.
It read, "Because voting systems are federally designated as highly sensitive protected critical infrastructure, the portion of Pennsylvania's certification testing that examines security has not been open to the public for any of the new models of voting systems examined in 2018 and 2019. Because so much of the re-examination of the XL related to security testing that is not open to the public, we were consistent with our prior practice for all new systems and the re-examination was conducted off-site on Aug. 7-8 at the examiner's laboratory in Colorado, with DOS staff present."
Skoglund had a different take.
"The things that they did look at, they essentially agreed with us," he said.
One issue, Skoglund said, is the machine's ability to mark a ballot after it has been cast, saying the paper has to pass through a printer before it gets counted. He said the Department of State's technicians couldn't hack the machine in two days so they said it cleared.
Secondly, he said, "the machine stores ballots in perfect order. It puts them into a little cartridge one after another and that violates ballot secrecy. Anyone with access to that poll sheet when you check in, it has a core list of voters.”
The state, Skoglund said, "agreed that it does do these things but they said they’re going to require the counties to shuffle the ballots.”
Thirdly, he said, if you want to spoil your ballot, the ExpressVote XL requires that a poll worker enter the booth, enter a password so the card can be retrieved.
"Which means they’re looking right at your ballot," Skoglund said. "They know who you’re going to vote for. There’s no secret ballot anymore.”
Their remedy, he said, was that they'll train poll workers not to look at the ballot.
"It's not supposed to be dependent on procedures because procedures may not be followed," Skoglund added.
Other issues listed in his request for re-examination of the ExpressVote XL include that ballot cards are blank and do not have the appropriate party affiliation or independent status printed on the ballot card; the machines' ballot cards do not have attached serially numbered perforated stubs; the ballot cards do not have valid marks; the process of voting a straight party does not meet certification requirements; and the machines are not accessible.
For Skoglund, the issues with the ExpressVote XL remain.
"Obviously, this is not resolved," he said. "We were hoping they could resolve it ... but the fact that there’s a machine that could be illegal to use, just doesn’t make sense. It doesn’t make sense that a county could purchase a machine and spend millions of dollars and then the first time they wheel it out, they could be sued because it violates the rules of election."
However, company representatives feel vindicated.
"We appreciate that the (Department of State) conducted its due diligence and we respect the right of anyone who wants to ask questions and learn more about our voting machines. Many counties throughout the commonwealth have already been experiencing positive results with demonstrations and trainings. We look forward to working with all counties utilizing our systems and ensuring that they have the tools necessary for proper education and outreach."