Pa. Gov. Tom Wolf poses with Pennsylvania’s new voting machines at the MLK Day of Service at Philadelphia’s Girard College. (Kimberly Paynter/WHYY)
Pennsylvania’s top elections official spent hours in federal court Tuesday, defending the certification of voting machines being used by Philadelphia and two other Pennsylvania counties, including one where problems led to undercounted returns in a race in November.
The hearing in federal court could help determine how 17% of Pennsylvania’s registered voters cast ballots in the April 28 primary election, as well as in November, when the state is expected to be one of the nation’s premier presidential battlegrounds.
It comes after a two-year push by Gov. Tom Wolf to get counties to switch to paper-based voting systems ahead of this year’s presidential election, a move he frames as a crucial election security bulwark against hacking.
For part of her three-plus hours on the stand, Secretary of State Kathy Boockvar sought to show that no element of a federal court agreement in 2018 specifically outlawed certification of the machine in question, the ExpressVote XL touchscreen system.
She also testified that certification of the ExpressVote XL touchscreen system had been well underway during talks to settle the lawsuit.
Information about the ExpressVote XL’s certification process was both publicly available and provided to the plaintiffs’ lawyers, she testified.
The plaintiffs would “pretty much have to be living under a rock” not to know about it, Boockvar said.
The underlying lawsuit accused Pennsylvania of violating the constitutional rights of voters in 2016’s presidential election because its voting machines were susceptible to hacking and barriers to a recount were pervasive.
The plaintiffs — former Green Party presidential candidate Jill Stein and several supporters — contend that certifying the ExpressVote XL violates the settlement agreement, in part because the machine does not meet the agreement’s requirement “that every Pennsylvania voter in 2020 uses a voter-verifiable paper ballot.”
For one, the ExpressVote XL counts votes by counting machine-printed bar codes on paper, a format that is neither readable nor verifiable by an individual voter, they say. Second, the ExpressVote XL does not use a “paper ballot” and relies on software to record the voter’s choice, they say.
The plaintiffs never objected to the certification of the machine before signing the settlement, Boockvar testified.
However, she also acknowledged that certification of the ExpressVote XL had not been a subject of discussion during the settlement talks.
In her testimony, Boockvar questioned whether a manufacturer could even assemble the machines — some 3,800 — that Philadelphia would need by April 28.
Judge Paul Diamond then wondered whether the city’s voters could vote by mail, a process that is now allowed for any voter under a 3-month-old state law.
In addition to Philadelphia, Cumberland County and Northampton County also bought the machines.
The ExpressVote XL achieved more notoriety in Pennsylvania in November, when the machines produced a massive undercount in a judicial race in Northampton County.
The machine’s maker, Omaha, Nebraska-based Election Systems & Software, has blamed the incorrect results on human errors in formatting the ballot. Ultimately, election workers counted the vote on paper ballots.