Major Lawsuit in Allegheny County Ends in Loss for Citizen Group
by Marybeth Kuznik, VotePA
May 01, 2006
Seven registered voters of Allegheny County PA joined People for the American Way to filed a large and well-organized federal lawsuit challenging the use of the ES&S iVotronic and M650 central-count scanners in the upcoming May 16 Pennsylvania primary election and the general election in November 2006. The 44-page complaint, which was filed on April 12 in Federal Court in Pittsburgh PA, claimed that use of the iVotronic and M650 electronic voting systems would violate the plaintiff’s rights under United States Constitution, HAVA, the Americans with Disabilities Act, and the Rehabilitation Act.
Some of the issues raised by the suit involved Allegheny County’s last-minute decision to purchase the iVotronic system to comply with HAVA (which was their third choice after several other systems were not feasible) and the lack of time to properly train and prepare poll workers, public officials, and voters for the use of a new system. The federal Department of Justice’s uneven treatment of Pennsylvania compared to certain other states (threatening a federal lawsuit in the case of Pennsylvania) to pressure the decision here was mentioned. The lack of adequate features to accommodate voters with various motor disabilities on the ES&S iVotronic was also included in several counts.
As the hearing began on Tuesday April 25, the federal courtroom in Pittsburgh was quite full, although most in attendance were involved in the case in some way. There were no less than sixteen lawyers seated at counsel tables in the courtroom with numerous plaintiffs, witnesses, public officials, and rank-and-file voters in attendance.
Judge Gary L. Lancaster laid down the ground rules for his courtroom (which has many of the latest high tech amenities for showing documents, playing DVDs etc.) and his rules for conduct of the case. There were timers going for the plaintiffs and for the defense, each side had a little over seven hours to present and ask questions over the course of several days.
Lead plaintiff Celeste Taylor testified first as to her background and reasoning for bringing the suit. She was followed by Fred Voight, a former executive director of the Committee of Seventy, a century-old non-partisan non-profit watchdog group from the Philadelphia area. The Committee of Seventy has been very strongly against VVPR, but Mr. Voight did not address that issue. He used his experience participating in Philadelphia's process of switching from lever machines to the Danaher in 2001-2002 (a year-long process), to testify that he did not believe that Allegheny County, which is just beginning to train officials, poll workers, and voters in the last week or so, would not have time to make an effective and orderly switch.
The strongest and most compelling testimony came from Noel Runyan, who is both an electrical engineer and a computer scientist -- and is also a blind voter himself. Runyan discussed his own experiences as a tester, systems designer, and most importantly a blind person actually voting on a DRE system in his home state. He said that as knowledgeable as he is, far more experienced with DRE systems than the average blind voter, he has had severe difficulties in voting on DREs.
In his intelligent and well-focused remarks, Mr. Runyan handily debunked many of the Jim Dickson-type talking points being used by the defense. For example, when asked if a movement-impaired voter could independently remove the ballot from an AutoMARK and take it to the scanner. Mr. Runyan said no, and immediately added that neither could that voter insert a smartcard to start voting on a DRE.
He explained the need for and use of various devices including the audio ballot and things that use the binary switch, and pointed out the many failings of the iVotronic from an accessibility standpoint.
At one point the federal Department of Justice lawyer almost gave activists in the audience a heart attack by saying of the Vote-PAD, "It is not an electronic voting system and so it would not comply with HAVA, right? Mr. Runyan calmly answered, "Sir, I believe that HAVA does not require electronic systems or DREs."
On Day Two of the hearing, witnesses for the plaintiffs included Bill Hickman (former law enforcement with the Inspector General) who testified that he had done field research into the county’s voter education program and found little public evidence of the program and little participation; an election director and lever machine expert from Saratoga Springs, NY who testified how easily the old lever machines could be readied for the May primary, and renowned computer security expert Dan Wallach.
Mr. Wallach, after stating that he was accepting expenses only and no payment for his testimony, spoke on many security issues of electronic voting systems. He focused on problems he had observed in the iVotronic system in Laredo TX.
Mr. Wallach testified that the default password on the iVotronic is five characters and that he has seen even shorter three-digit passwords in use. He explained that this is not secure and compared it to a hallway with six doors -- trying each doorway could find the one leading to the chance to change software on the machine. He went on to state that with a password and a personal electronic ballot (PEB), someone could clear votes and change the behavior of the software on the iVotronic.
Dan Wallach then reported that he has learned that many of the iVotronics Allegheny County is getting for the May primary are used machines from Merced, California and from New Orleans. They will be used here for the primary and then shipped on to Tennessee by ES&S. This is a security hole and a violation of the chain of custody because malicious code could be loaded onto these machines as they pass from jurisdiction to jurisdiction.
He addressed calibration of the touchscreens, mentioning the colloquial stories of voters touching the screen for one candidate and having it jump to another contender. This vote hopping is probably due to out-of-calibration touchscreen. The review screen at the end of the ballot is only a partial solution for the problem of miscalibration. Calibration is a function of the person who performed it; meaning that a tall person would tend to calibrate so that taller people could use the screen easier than short ones (and vice versa.)
In Cross examination, Mr. Wallach was asked many questions about HAVA's requirements and his testimony on prior occasions. He discussed experimentation with lever machines his organization is doing.
The plaintiffs then rested their case.
Witnessing for the defense on Day Two was Allegheny County Election Director Mark Wolosik who discussed his current operations and stated the problems that he believed would ensue if use of the lever machines was ordered for the May primary. In cross examination, the plaintiffs questioned Mr. Wolosik’s testimony against the use of multiple systems in one election (which the county is now planning to do for May.)
Early on Day Three, several officials from ES&S testified, and a courtroom demonstration of the iVotronic was presented. One of the key witnesses was ES&S Regional Sales manager Todd Mullen, who handled the $12 million sale to Allegheny County but repeatedly answered with statements such as “I don’t know” and “that is not my department” when asked questions about how the iVotronic machines will be deployed and serviced there.
John O'Brien, Manager of the Voting Machine Section of the Allegheny County Elections Department, who testified about the past operations of the lever machines in the county and how difficult (impossible, in his opinion) it would be at this point to prepare them for use in the May primary.
Dr. Michael Shamos, who examined the ES&S systems for certification in Pennsylvania, was a key witness on Thursday. He was questioned about the methods of certification in the Commonwealth of Pennsylvania, as well as specifics about the iVotronic and M650 systems of ES&S.
Interestingly, Dr. Shamos’ testimony revealed that he actually shares a number of beliefs with many election integrity activists. He stated clearly that he thought he “light and heat” shed on the issue by citizen lawsuits and involvement was a good thing.
Closing arguments were presented Thursday afternoon by all four parties (county, state, and federal defendants, and the plaintiffs.) The county, which had earlier in the hearing moved to dismiss based on testimony that they could not hold an election at this point on the lever machines, continued to allege the impossibility of moving forward without the electronic machines for the May primary.
Attorney Greg Dunlap, closing for the state defendants, asserted that the iVotronic machines are totally tested, easy to use, and fully accessible (despite considerable testimony to the contrary that had been presented.) He mentioned the Westmoreland County citizens’ lawsuit and stated that the primary reason citizens in both counties filed these suits was because they “dislike” HAVA and want to “stop the train” and get time to lobby for voter-verified paper records.
The federal closing was rather frightening to this author, as the Department of Justice attorney clearly and brazenly stated that the federal government had threatened the state of Pennsylvania with a lawsuit in order to affect the final outcome of the Westmoreland County citizens’ case in Pennsylvania Supreme Court. He coldly said that HAVA is the law of the land and it will be followed whether citizens want it or not.
In closing for the plaintiffs, Harry Litman gave a strong rebuttal to many of the previous attorneys and their claims as well as masterfully reiterating his own case. Judge Lancaster told all parties to return at 10 AM the next morning for his decision.
On Friday, Day Four, the courtroom was quite full with plaintiffs, press, officials, and concerned voters. Shortly after entering the courtroom Judge Lancaster stated that the unusual circumstances this case generated (normally he would have time to re-read the entire hearing transcript and issue his opinion in writing) he proceeded to read aloud from a certified copy of his ruling.
Sadly his ruling showed that he didn't 'get it' as he went against the citizens and in favor of the ES&S iVotronic.
Basically, he stated that he had to consider 1) chances of success on the merits of the case, 2) whether or not irreparable harm was being done to the plaintiffs, 3) make sure the relief would not be worse than the problem (my wording of this), and 4) consider the public interest.
He opined that the plaintiffs were unlikely to succeed on the merits of the case, because Section 301 of HAVA provides no private right of action. 301 is not sufficient to create a private right of action because it creates no private remedy (the remedy is that the DOJ punishes the state or county and/or makes them return the HAVA funding.) The only recourse HAVA provides an individual voter is to file a complaint under the procedure laid out in Section 402.
He stated that the ES&S iVotronic is certified to meet Section 301 of HAVA and that 30-some Pennsylvania counties have chosen it.
He stated that the case is unlikely to succeed on the constitutional merits (saying that constitutional rights are threatened because of the strong possibility of disenfranchisement or problems at the polls with the iVotronic) because said problems may happen, or they MAY NOT.
In what was perhaps the most difficult statement for those of us who know these machines (and the slick demonstrations ES&S provides) to accept, Judge Lancaster indicated that he was convinced by the ES&S demonstration of the iVotronic during the hearing. He said that the machines appear easy to use; no worse than a ticket kiosk at Greater Pittsburgh Airport, or an ATM machine, both of which have been used by Allegheny County citizens for years.
As to the disability issues with the iVotronic, the judge stated that the ADA and Rehabilitation Act require only that the disabled voter be able to vote -- NOT that he or she must be able to vote privately and independently. There was no mention of HAVA's requirement on this matter.
Finally Judge Lancaster stated that the Public Interest would not be served by halting use of the iVotronic in favor of staying with the lever machines. This would result either in the County not being able to hold a Primary at all, or if they held it on lever machines they would be in violation of HAVA. Either way the county would have to forego the $4 million in HAVA funding it was receiving to purchase these machines that (again) are certified as HAVA compliant.
So that was it. Paperless ES&S machines will be used in May in Allegheny County as well as many other places in Pennsylvania. Once again, the big-money vendors and our county and state governments (this time adding the Feds) have managed to quash the citizens’ efforts to have transparent, verifiable voting systems in the Keystone State.
Moving forward, a coalition of voters and organizations including People for the American Way, lead plaintiff Celeste Taylor, the Black Political Empowerment Project (B-PEP), Vote PA, and others have called for a News Conference on Monday, May 1 at 6:30 PM on the steps of the City County Building to address the upcoming election and the use of the new voting machines. The goal will be to encourage people to come out and vote, and help learn what these machines do in actual elections. Steps will be outlined that can be taken by regular voters, poll watchers, or poll workers to observe the machines record and report data on any problems that occur in the Pennsylvania primary election.