Stein recount campaign’s motion to enforce PA settlement agreement, decertify unverifiable voting machines has court hearing February 18, 2020
On Tuesday, February 18, the U.S. District Court for the Eastern District of Pennsylvania is holding a hearing on the Stein 2016 recount team’s motion to enforce the settlement agreement in Stein v. Cortés by ordering the PA Department of State to immediately decertify the ES&S ExpressVote XL voting machine.
Leading election integrity experts including Dr. J. Alex Halderman agree that the deeply flawed ExpressVote XL violates the 2018 settlement of the Stein recount lawsuit guaranteeing all Pennsylvania voters the right to voter-verifiable, auditable paper ballots by the 2020 election. Recent developments such as the ExpressVote XL’s disastrous debut in 2019 local elections underscore the urgency of decertifying and replacing these untrustworthy machines as soon as possible.
“The ES&S ExpressVote XL violates our agreement in several ways and should never have been certified,” said Dr. Jill Stein. “Instead of paper ballots, they use ‘summary cards’ that are difficult for voters to verify, research shows. Even if voters do verify the written text, what counts as your vote is not the text but printed barcodes, making it impossible to verify your actual vote. The state of Colorado recently banned barcodes for counting votes for the common-sense reason that humans can’t read barcodes. Even more troubling, these machines can be programmed to change your ballot after you submit it, meaning there’s no reliable paper record and no way to verify the election results through auditing.”
Here are some key court documents relevant to the hearing:
Settlement agreement in Stein v. Cortés
Plaintiffs’ motion to enforce the settlement agreement
Rich Garella declaration in support of plaintiffs’ motion
J. Alex Halderman declaration in support of plaintiffs’ motion
Ilann Maazel declaration in support of plaintiffs’ motion
Defendants’ opposition to plaintiffs’ motion
City of Philadelphia and County Board of Elections’ motion to intervene
Election Systems & Software motion to file Amicus Brief
Plaintiffs’ response to defendants’ opposition
Plaintiffs’ response to Philadelphia City, County BOE, and ES&S
Kevin Skoglund declaration in support of plaintiffs’ motion
Ilann Maazel declaration in further support of plaintiffs’ motion
Defendants’ motion to file sur-reply
Order to delay hearing to 2/18/20
Defendants’ updated witness list
City of Philadelphia and County BOE’s updated witness list
Plaintiffs’ revised witness list
Stein Recount Campaign Demands State of PA to Decertify Unverifiable ES&S ExpressVote XL Voting Machines
FOR IMMEDIATE RELEASE WEDNESDAY, OCTOBER 2, 2019
Jill Stein for President Recount Team
Contact: Dave Schwab 518.610.2708 schwab@jill2016.com
PHILADELPHIA – Jill Stein and the 2016 recount team announced today that they have served notice to the state of Pennsylvania that the ES&S ExpressVote XL voting machine, recently recertified by the state, violates the terms of the settlement agreement in Stein v. Cortés. This 2018 settlement of the Stein recount lawsuit guarantees all Pennsylvania voters the right to voter-verifiable, auditable paper ballots by the 2020 election. Against public outcry and expert warnings, Philadelphia County has decided to purchase ExpressVote XL machines for use by all voters. The state has 30 days to respond, after which the plaintiffs can ask the federal court that brokered the agreement to enforce it.
“The ES&S ExpressVote XL violates our agreement in several ways and should never have been certified,” said Stein. “Instead of paper ballots, they use ‘summary cards’ that are difficult for voters to verify, research shows. Even if voters do verify the written text, what counts as your vote is not the text but printed barcodes, making it impossible to verify your actual vote. The state of Colorado recently banned barcodes for counting votes for the common-sense reason that humans can’t read barcodes. Even more troubling, these machines can be programmed to change your ballot after you submit it, meaning there’s no reliable paper record and no way to verify the election results through auditing.”
When Pennsylvania voters previously petitioned the state to revisit the certification of the ExpressVote XL, the testing was carried out in a Colorado lab, circumventing the agreement’s requirement that Stein’s expert representative Dr. J. Alex Halderman be allowed to observe all on-site testing for certification purposes. “The state locked out our expert from the recertification process, violating both the spirit and the letter of our agreement. This was a red flag that the state was not serious about upholding the agreement in good faith,” said Stein. Election integrity advocates across the state have also criticized the state’s recertification of the ExpressVote XL for its unprecedented level of secrecy.
Stein also noted that election integrity advocates, led by Protect Our Vote Philly, have been vocally opposing the purchase of the ExpressVote XL in Philadelphia since the beginning of the procurement process, for multiple reasons. Among other reasons, it violates the requirement for voter-verifiable, auditable paper ballots in the Stein v Cortés agreement; it is much more expensive than alternative systems; and every single test voter in the state’s own disability access study was unable to verify their vote.
“Voters deserve elections we can trust – in Philadelphia, Pennsylvania, and across the nation. That means we need voter-verifiable, auditable paper ballots,” said Stein. “If the state refuses to decertify the ExpressVote XL and uphold our settlement agreement, we’ll have to ask the court to enforce it.”
Click here to open a copy of the complaint letter sent to the PA Department of State.
Story of the Pennsylvania Recount
Despite a citizen-led movement involving thousands of volunteers, the Pennsylvania recount effort was stopped by complex procedural requirements and politicized court decisions. The recount brought attention to this nightmare of bureaucracy and legal maneuvering by the state. It also focused attention on the paperless electronic voting machines that over 80% of Pennsylvania voters are forced to use in order to vote. These are effectively “black boxes” where there is no simple or reliable way to verify the accuracy of the vote count. This is one of the chief reasons paperless machines have been banned in several states.
The fight to address these problems has continued in state court. Meanwhile, in the wake of the recount, two important victories for election protection and voting justice have been won.
First,the Secretary of State ordered all counties to replace their aging voting machines by the 2019 elections with paper record voting systems. Activists are working to ensure that counties purchase only systems that use hand-marked paper ballots, the gold standard for election integrity.
Second, the March 2018 Congressional spending bill allocated $380 million dollars for election security to be distributed among the 50 states. This will provide funding to help make these purchases possible.
The recount campaign also focused attention on Pennsylvania’s complex, chaotic procedure for voters to request a recount. By law, the statewide recount required at least three legal affidavits in each of over 9,000 precincts, requiring the mobilization of over 27,000 voters across the state in a very short period of time. Additionally, election officials were unable to provide deadline dates and locations for filing these affidavits in order to officially request a recount. This untenable process, combined with the paperless voting machines, made it virtually impossible to initiate a meaningful recount. Multiple attempts in court to compel a statewide recount were denied.
Five citizen plaintiffs and Jill Stein, as the candidate of record, are continuing to challenge the state’s outdated and restrictive procedure for recounts in state court. They are also demanding a special “forensic examination” of voting equipment software – an analysis conducted by voting machine experts to determine whether the election was compromised by machine error or tampering.
Latest Pennsylvania Court Filings
Defendants Renewed Motion to Dismiss—Mootness
In this document, the Commonwealth is renewing its request to dismiss the Stein lawsuit. It claims that PA elections, and recount procedure, do not violate constitutional rights of speech, due process and equal protection. It also argues PA elections are safe, and not hackable. It further states that since the Trump Administration has moved election equipment to DHS supervision, as “essential infrastructure” is a development that should provide more confidence in the security of elections. The state argues that a forensic examination of machine software is a moot issue, as the election has been decided.
Stein Plaintiffs Cross-Motion for Summary Judgement
This document renews our request for the court to intervene, as PA elections, and recount procedure, remain as flawed today, as the were when the action was started. Our attorneys directly respond to the weak claims made by PA in its attempts to have this suit dismissed. Our case is not “moot” because the court can still grant the relief we request. Our document explains that the issue in dispute is PA elections practices, procedure and equipment present constitutional barriers, and are not about the outcome of the 2016 presidential result. It also demands the court prevent PA from destroying electronic results of the 2016 election, as that would allow PA to render aspects of our claims moot, through the Commonwealth’s destruction of evidence.
Stein Plaintiffs Letter RE: State Admissions
A Letter our attorneys have sent to the court regarding the candid admissions of former Deputy Secretary of Elections and Administration (PA) in an NPR report (2/24/2018) of election systems. In the story, the former official admits PA equipment is vulnerable and insecure, unverifiable, and in urgent need of replacement. This is precisely our argument, as well.
Hoke Declaration
This is a supporting statement from law professor and election cyber security expert, Candice Hoke. Dr. Hoke offers her expert opinion on PA election equipment. She points out the inadequacy of the Wolfe Administration’s “Directive,” regarding “paper trail.” Paper ballots are required for safe, secure and verifiable elections, and that is not the same as a paper trail.