Fight over 2020 election records lands in Pennsylvania court

FILE - Polling judge Frank Kosek, right, Elaine Rhone, left, guide her ballot into a voting machine during the Pennsylvania primary election, at Mont Alto United Methodist Church in Alto, Pa., on May 17, 2022. A county judge in Williamsport, Pa., has to decide whether to force officials to provide voter-by-voter electronic election records after the state Office of Open Records ruled Pennsylvania law makes them confidential. (AP Photo/ Carolyn Kaster, File)

FILE - Polling judge Frank Kosek, right, Elaine Rhone, left, guide her ballot into a voting machine during the Pennsylvania primary election, at Mont Alto United Methodist Church in Alto, Pa., on May 17, 2022. A county judge in Williamsport, Pa., has to decide whether to force officials to provide voter-by-voter electronic election records after the state Office of Open Records ruled Pennsylvania law makes them confidential. (AP Photo/ Carolyn Kaster, File)

A county judge in Williamsport has to decide whether to force officials to provide voter-by-voter electronic election records after the state Office of Open Records ruled Pennsylvania law makes them confidential.

Heather Honey, who heads the Lebanon, Pennsylvania-based firm Haystack Investigations, sought in October a digital copy of Lycoming County’s “cast vote record” for the 2020 General Election in which Democratic challenger Joe Biden unseated Republican President Donald Trump.

Lycoming told Honey no, saying Honey was essentially asking for the contents of ballot boxes and voting machines, information that the state Election Code declares off-limits for public inspection.

In a January decision, Office of Open Records appeals officer Erin Burlew agreed with the county elections director that the cast vote record “is the digital equivalent of the contents of ballot boxes.”

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Honey challenged that decision in county court in February, likening the cast vote record to a spreadsheet and describing it as “merely a digital report tallying the results of ballots scanned into a tabulator. The CVR is a report that is prepared after an election from a desktop computer that is not and never was the contents of a ballot box.”

Thomas Breth, a Butler-based lawyer for three Williamsport area residents who were allowed to join the case — a local businessman, a retired state trooper and Republican state Rep. Joe Hamm — said that during a hearing last week there was evidence that the records Honey wants are randomized and could not be used to determine how any identifiable individual voted.

“The whole argument that somehow this cast vote record would enable anybody to match up an elector to a ballot is incorrect,” despite officials’ claims to the contrary, Breth said.

Honey told the court the records she seeks do not link ballots with individual voters in a way that would identify them, and that they can help people double check the work of election officials in counting total votes. At least one county has granted her the cast vote record data, Breth said.

“CVRs are important public records,” she wrote in the February lawsuit, acting as her own lawyer. “CVRs allow the public to inspect the adjudication process because only the CVR shows the number and character of corrections made when the votes are tabulated.”

Honey has not returned messages seeking comment, nor did lawyers for Lycoming County.

But in an April brief, the county argued that the records in question were the equivalent of ballot boxes.

“That modern technology has removed the physical box does not mean that this information is subject to public disclosure,” they wrote.

Earlier this month, Democratic Gov. Tom Wolf’s acting secretary of state, Leigh Chapman, asked to intervene in the Lycoming County case, saying Honey “has or is likely to” file similar requests for the cast vote records in the state’s other counties.

Agency spokeswoman Ellen Lyon declined to comment, citing ongoing litigation, but the state’s lawyers have said the cast vote records are produced before tabulation and counting of votes has occurred.

“Thus, this record is not, as petitioner Honey argues, ‘a digital tally,’” the Department of State argued in a June 8 request to join the Lycoming County litigation. “Overvotes may be displayed, which are resolved through other aspects of the EMS software. In other words, the data will be unprocessed, and considering it on its face will be problematic.”

Some systems “even capture scans of the ballots, similar to photocopies or photographs, and therefore may potentially expose the identity of a voter,” the state wrote. Cast vote records’ data can lack randomization, they said, so the data Honey seeks can be compared with the polling place’s numbered list of voters to “create insight into how a person voted.”

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In a Nov. 8 email to county election officials, Department of State elections bureau director Jess Mathis advised them against releasing the voting records.

Breth said the two days of testimony in the case this month contradicts those concerns about voter privacy and show the state has certified that Lycoming’s election system upholds constitutional secret ballot requirements.

He noted the state Right-to-Know Law does not permit agencies to consider how a requester plans to use public records.

“The public’s not as dumb as the secretary of the commonwealth leads us to believe,” Breth said. “’You’re not smart enough to get this data because you might get confused.’ It’s offensive.”

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