By: Kira Simon
“Green Party’s Jill Stein threatens legal challenge to Philly’s new, $29M voting machines.” At first glance, this may sound like a headline from the 2016 election. In fact, it’s a headline from October 2, 2019. Readers of this blog likely remember that Stein settled a lawsuit with Pennsylvania stemming from a state recount of the 2016 election. Why this is still in the news? Let’s run through Pennsylvania’s recent history of voting machine troubles.
In 2016, Pennsylvania was one of fourteen states to use paperless voting machines as the primary polling place equipment in some counties and towns. During the Democratic primary, some counties encountered unusual voting procedures with their electronic voting machines. Three counties did not include a U.S. Senate candidate because the counties did not have enough time to add his name to the ballot after the state supreme court reversed a lower court decision to keep the candidate off the ballot after his petitions were challenged. The counties were unable to add his name because three weeks before the election it was “impossible” to update the information on the machines. To remedy this, voters in one county completed all primary votes except their U.S. Senate vote on an electronic machine – and submitted their Senate vote by a paper ballot; in another county voters had to separately write in the candidate’s name. While this was an unusual instance involving an essentially unknown candidate, you can imagine a scenario where a voting machine may need to be updated close to an election due to an emergency or court order – and the fact that there is no good way to address that issue is disconcerting.
Furthermore, the lack of a paper trail for ballots is especially problematic when voting machines act up. In the 2016 general election, at least three Pennsylvania counties suffered a variety of voting machine errors. An issue with calibration of electronic voting machines in Lebanon County and Butler County caused some votes to report as votes for a different party or candidate. Different electronic voting machines in Perry County listed votes incorrectly. Without an auditable paper trail, election officials are not able to confirm electronic vote totals – and when there are issues with vote switching, it is a security risk to states.
Following the 2016 election, Jill Stein brought a federal lawsuit in Pennsylvania seeking a statewide recount. The suit accused the state of violating the constitutional rights of voters because the voting machines were susceptible to hacking and there were extensive barriers to a recount. The lawsuit was finally settled in November 2018 and included some safeguards for voting machines: that all voters use a voter-verifiable paper ballot, and that the state institute audits of election results by 2022 before results are certified.
At that time, four out of five Pennsylvania voters were using voting machines that lacked an auditable paper trail. November 2018 was not, however, the end of the battle for safer voting machines. Governor Tom Wolf said he would seek $90 million for the machines (although the total cost of replacing the old machines is estimated at $150 million), but Republicans in the state legislature threatened to sue. The legislature passed a bill that would have given counties $90 million, but would have eliminated straight-party voting (which Democrats opposed eliminating). Wolf vetoed that bill, and then announced he would issue $90 million in bonds to pay for the machines.
Currently, Pennsylvania only has $14 million for new machines, from a federal grant – leaving counties to pay for new machines on their own. According to Verified Voting, for the 2020 election forty-three counties will be using paper ballots; three counties will be using mixed paper ballots and Direct-Recording Electronic (DRE) machines without voter verifiable paper trails (VVPAT); and twenty-one counties will be using DREs without VVPAT.
As of August 2019, forty-one of the state’s sixty-seven counties had taken action toward replacing their machines (covering nearly three in five voters). Nine counties used new machines in May 2019 primaries, and some counties plan on using the machines in November 2019. However, one county that used new machines in May encountered a variety of issues: ballots could be seen by others, poll workers didn’t know how to use the machines, and warning messages drew unwanted attention to ballots. The rest of the counties will wait to use the new machines for the April 2020 primary.
Bringing this all together again, Jill Stein is threatening to sue Pennsylvania to prevent Philadelphia from implementing touchscreen machines. Stein submitted her request to the Pennsylvania Department of State on October 2, which has until November 1 to respond. Stein’s complaint maintains that the state’s certification of the machines that Philadelphia (and two other counties) wants to use violates her 2018 settlement. Specifically, she alleges that the machines do not meet the settlement’s requirements for a voter-verifiable paper ballot. However, election experts and Philadelphia’s election board rebut Stein’s position: they maintain that Stein’s preferred machines are less secure and less private. Now, we await Pennsylvania’s response.