Mark BANFIELD, Sarah Beck, Joan Bergquist, Alan Brau, Lucia Dailey, Peter Deutsch, Constance Fewlass, Barbara Glassman, Marijo Highland, Janis Hobbs-Pellechio, Deborah Johnson, Andrew McDowell, James Michaels, J. Whyatt Mondesire, Mary Montresor, Rev. James Moore, Cathy Reed, Regina Schlitz, Alexander Sickert, Daniel Sleator, Susanna Staas, Stephen J. Strahs, Mary Vollero, Jeanne Zang, Appellants v. Pedro CORTES, Acting Secretary of the Commonwealth, Appellee.
110 A.3d 155
Supreme Court of Pennsylvania.
Argued Sept. 10, 2014. Decided Feb. 17, 2015.
110 A.3d 155
appropriate form of intermediate punishment, given that work release is expressly proscribed under Section 7508(c) (whereas county intermediate punishment in the abstract is not specifically proscribed).3 In this regard, I note only that the Commonwealth, as the appellant, has not presented this specific line of argument.
For the above reasons, I would affirm the order of the Superior Court.
Justice TODD joins this dissenting opinion.
Marc J. Zucker, Esq., Weir & Partners, L.L.P., Philadelphia, for Sequoia Voting Systems.
David J. Berney, Esq., Law Offices of David J. Berney, Philadelphia, for Rutgers School of Law-Constitutional Rights Clinic, amicus curiae.
Steven Edward Bizar, Esq., Shawn N. Gallagher, Esq., Richard M. Simins, Esq., Buchanan Ingersoll & Rooney, P.C., Gregory Eugene Dunlap, Esq., PA Governor‘s Office of General Counsel, Kathleen Marie Kotula, Esq., PA Department of State, Robert J. Fitzgerald, Esq., Philadelphia, Brock Edward McCandless, Esq., Pittsburgh, for Carol Aichele.
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ.
OPINION
Justice STEVENS.
In this appeal, we must determine whether the Commonwealth Court erred in upholding the decision of the Secretary of the Commonwealth to certify certain direct-recording electronic voting systems (DREs) for use in Pennsylvania elections.1 The Commonwealth Court found that the DREs satisfy the certification requirements set forth in the Election Code2 and do not infringe on the fundamental right to vote as protected by the Pennsylvania Constitution. For the reasons that follow, we affirm the Commonwealth Court‘s decision to grant the Secretary‘s motion for summary relief.
I. Background
Before we consider the specific facts of this case, it is necessary to give a brief overview of our state law on voting system certification. The Election Code, enacted in 1937, initially permitted voting with paper ballots or mechanical lever voting machines.
In October 2002, Congress enacted the Help America Vote Act (“HAVA,” Pub. L 107-252, formerly
Appellants, twenty-four Pennsylvania voters, filed this action in 2006 in the Commonwealth Court‘s original jurisdiction to challenge the certification of the six DRE models in use in Pennsylvania.4 Seeking declaratory, mandamus, and injunctive relief, Appellants claimed the Secretary should be ordered to decertify the DREs which do not comply with the Election Code and compelled to adopt more rigorous testing standards. In Count I, Appellants claimed the DREs do not meet the Election Code‘s definition of an electronic voting system as they cannot produce a “permanent physical record of each vote cast.”
The Secretary filed preliminary objections to the Petition for Review. The Commonwealth Court overruled these objections in a published opinion. Banfield v. Cortes, 922 A.2d 36 (Pa.Cmwlth.2007) (en banc) (“Banfield I“). In the discovery phase of trial, the parties obtained reports and deposition testimony from expert witnesses who reviewed the Secretary‘s examination reports. Appellants retained two experts, Dr. Douglas Jones, Ph.D., and Dr. Daniel Lopresti, Ph.D., who contended that the certified DREs do not meet several requirements of the Election Code and the Secretary‘s certification process is inadequate to determine whether electronic voting systems meet accuracy, security and reliability requirements. In addition, Appellants relied on studies conducted by other states that reveal security vulnerabilities in the DREs at issue. The Secretary‘s expert, Dr. Michael I. Shamos, Ph.D., J.D., opined that both the DREs and the Secretary‘s certification process conform to the Election Code and the Secretary acted within his discretion in certifying the DREs at issue for use in Pennsylvania.
In August 2011, Appellants filed a motion for partial summary judgment as to Counts I, IV, VI, IX, and X, arguing they were entitled to judgment as a matter of law on claims in which the parties did not dispute the relevant technical attributes of the DREs alleged to violate the Election Code. The Secretary filed a motion for summary relief, seeking the dismissal of Appellants’ action in its entirety as Appellants did not demonstrate the DREs should be decertified and improp-erly sought mandamus relief. The Commonwealth Court scheduled en banc argument on Appellants’ motion and directed that all other matters, including the Secretary‘s motion, be held in abeyance.
On August 29, 2012, the Commonwealth Court denied Appellants’ motion for partial summary judgment in a published, en banc opinion. Banfield v. Aichele, 51 A.3d 300, 302 (Pa.Cmwlth.2012) (en banc) (“Banfield II“). The Commonwealth Court first rejected Appellants’ multi-faceted claim in Count I that the DREs do not satisfy the Election Code‘s definition of an electronic voting system as they cannot “provide for a permanent physical record of each vote cast.”
Rejecting Appellants’ claim that vote records must be immune from intentional
In addition, the Commonwealth Court majority did not accept Appellants’ claim that the DREs fail to produce a “record of each vote cast.” As the DREs’ vote recording process is software-dependent, Appellees claim there is no way to verify a DRE accurately recorded a voter‘s selections if the software is corrupted or flawed. Although it recognized the validity of this concern, the Commonwealth Court majority found Appellants’ assertion that the Election Code requires software-independent voting to be inconsistent with the 1980 amendments authorizing the use of voting systems that only register votes electronically. While Appellants may rightfully question the vulnerability of DREs to tampering, the Commonwealth Court majority reasoned that the Secretary‘s certification and approval process is a proper safeguard against such security concerns.
Second, the Commonwealth Court concluded that Appellants were not entitled to summary judgment on Count IV in which Appellants alleged that the DREs cannot “conduct a statistical recount ... using manual, mechanical or electronic devices of a type different than those used for the specific election.”
In a footnote, the Commonwealth Court criticized Appellants’ reliance on another provision which allows voters to demand a full recount in the event of fraud or error.
Third, the Commonwealth Court declined to issue a writ of mandamus to order the Secretary to comply with Appellants’ request in Count VI for the reexamination of previously certified electronic voting systems. See
Lastly, the Commonwealth Court dismissed Appellants’ claim that Secretary‘s certification of the DREs resulted in constitutional violations of their fundamental right to vote. As Appellants had not shown that the Secretary‘s certification was illegal, the Commonwealth Court found Appellants were not entitled to judgment as a matter of law on Counts IX and X. For the foregoing reasons, the Commonwealth Court denied Appellants’ motion for partial summary judgment.
Judge McCullough filed a concurring and dissenting opinion, which was joined by Judge Pellegrini. Although Judge McCullough agreed with the Majority‘s resolution of Counts IV, VI, IX, and X, she asserted Appellants should have been granted summary judgment on Count I as the DREs do not “provide for a permanent physical record of each vote cast.” Judge McCullough rejected the Majority‘s finding that electronic data can be considered “permanent,” arguing that such data is vulnerable to alteration undetectable to a human observer. Judge McCullough also argued that electronic data does not constitute a physical record of each vote cast. In addition, Judge McCullough also questioned whether records printed on thermal paper are sufficiently “permanent,” crediting the testimony of Appellants’ expert who claimed thermal paper can become unreadable in a matter of weeks if not stored properly. Thus, Judge McCullough concluded Appellees were entitled to judgment as a matter of law on Count I.
On January 29, 2013, the Commonwealth Court issued a single-judge order by Judge Leadbetter, finding Count VI to be moot after the Secretary performed the requested DRE reexaminations and dismissing Count I (permanent physical record of each vote cast) and Counts IV and V (statistical recount) based on the reasons set forth in the Commonwealth Court‘s August 29, 2012 en banc opinion (Banfield II).
On October 1, 2013, in a single-judge memorandum authored by Judge Leadbetter, the Commonwealth Court granted the
Furthermore, the Commonwealth Court concluded that the Secretary was entitled to summary relief on Counts VIII, IX, and X with respect to Appellants’ constitutional challenges to the certification of the DREs. Although Appellants claimed the DREs are unable to accurately record votes and thus, interfere with the fundamental right to vote of those individuals forced to use the DREs, the Commonwealth Court found that Appellants had no foundation for such arguments which are based on the faulty premise that the DREs at issue are so inaccurate and insecure as to deny them the right to vote.
Accordingly, the Commonwealth Court granted the Secretary‘s motion for summary relief. On October 15, 2013, the Commonwealth Court entered judgment in favor of the Secretary and against Appellants on all counts of the Petition for Review. Appellants present the following five issues for our review:
- Does an [electronic voting system] “provide for a permanent physical record of each vote cast” as required by Section 1101-A [
25 P.S. § 3031.1 ] if it only stores electronic data as votes are cast and only prints that electronic data (if ever) after an election has ended? - Does an electronic voting system ... allow for a “statistical recount” as required by Section 1117-A [
25 P.S. § 3031.17 ] if it cannot verify that votes were accurately captured? - Does an [electronic voting system] “preclude every person from tampering with the tabulating element” as required by Section 1107-A [
25 P.S. §§ 3031.7(16)(iii) , (17)(i)] if it has known security vulnerabilities that make it possible to alter votes? - Does an examination allow the Secretary to ensure that an [electronic voting system] “meets all of the requirements” of the Election Code as required by Section 1105-A if it does not test for known security vulnerabilities that make it possible to alter votes?
- Is the certification of an [electronic voting system] narrowly tailored to achieve a compelling state interest if, unlike other available EVSs, the EVS cannot verify that votes were accurately captured?
Appellants’ Brief, at 4 (reordered for review).
“An application for summary relief may be granted if a party‘s right to judgment is clear and no material issues of fact are in dispute.” Jubelirer v. Rendell, 598 Pa. 16, 28, 953 A.2d 514, 521 (2008) (citations omitted).8
[I]n evaluating the Commonwealth Court‘s decision to grant summary relief, we examine whether there is any genuine issue of material fact and whether the moving party is entitled to relief as a matter of law. In doing so, we must view the record in the light most favorable to the nonmoving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Murphy v. Duquesne Univ., 565 Pa. 571, 777 A.2d 418, 429 (2001). Where there is no dispute as to any material issues of fact, we must determine whether the lower court committed an error of law in granting summary relief. Capek v. Devito, 564 Pa. 267, 767 A.2d 1047, 1048, n. 1 (2001). As with all questions of law, our scope of review is plenary.
A. Permanent Physical Record of Each Vote Cast (25 P.S. § 3031.1 )
Appellants argue the Commonwealth Court erred in granting Secretary summary relief on Count I as the DREs violate the Election Code by failing to provide for a permanent physical record of each vote cast. In the definitional section of the 1980 Election Code amendments permitting electronic voting, the Legislature defined an “electronic voting system” as “a system in which one or more voting devices are used to permit the registering or recording of votes and in which such votes are computed and tabulated by automatic tabulating equipment. The system shall provide for a permanent physical record of each vote cast.”
Appellants begin by emphasizing their belief that electronic data are not “physical” records as such data is composed of subatomic particles that are not perceptible through the senses. Appellants also claim electronic data cannot be considered “permanent” as such records are in an alterable state until the polls close at the end of the election. Lastly, Appellants challenge the Commonwealth Court‘s finding that electronic data constitute a “record of each vote cast” as the DREs’ recording process is dependent on software which may be flawed or corrupted; thus, Appellants allege that one cannot be certain if the electronic data reflects voter intent.
Although Appellants concede that the DREs can print records on paper that are “physical” and “arguably permanent,”9 Appellants claim the Commonwealth Court erred in finding the DREs’ printing capability allow them to “provide for a record of each vote cast.” Appellants claim the plain meaning of the requirement that the DREs “provide for” a permanent
In response, the Secretary contends that the DREs’ electronic records constitute permanent physical records. Although not definitively decided by the Commonwealth Court, the Secretary claims the DREs’ electronic records are “physical” as they can be preserved for later use on removable memory cards and can remain intact for many years. With respect to the electronic records’ permanency, the Secretary supports the Commonwealth Court‘s assessment that this requirement signifies that vote records need not last forever but must be retained for a sufficient period of time to permit recounts, recanvassing, and litigation. Moreover, the Secretary rejects Appellants’ suggestion that vote records must be software-independent as the General Assembly specifically authorized the use of voting systems that only record votes electronically.
The Secretary also agrees with the Commonwealth Court‘s finding that the DREs’ printed records constitute permanent physical records of each vote cast. As the Code requires that an electronic voting system “provide for” such records, the Secretary finds this provision encompasses a DRE‘s ability to generate records on demand, defining the phrase “provide for” as “to make it possible for something to be done.” Secretary‘s Brief, at 17 (citing Oxford Advanced Learners Dictionary). Although Appellants argue the printed records are simply copies of flawed electronic data, the Secretary contends this indirect attack fails for the same reasons as their direct attack on electronic data as the Legislature specifically authorized devices that only record votes electronically. If this Court finds the permanent physical record requirement ambiguous, the Secretary urges this court to give weight to her interpretation as the governmental officer charged with applying the Election Code‘s provisions. See
This challenge requires this Court to engage in statutory interpretation of the Election Code, which, as a question of law, is subject to a de novo standard of review and a plenary scope of review. Sch. Dist. of Philadelphia v. Dep‘t of Educ., 625 Pa. 418, 92 A.3d 746, 751 (2014). This Court‘s role in statutory interpretation is to ascertain and effectuate the intent of the Legislature, giving effect to all provisions of the statute under review, if possible.
another, construed with reference to the entire statute. Id. When the words of a statute are clear and free from all ambiguity, the letter of the statute is not to be disregarded under the pretext of pursuing its spirit.
Keeping these principles in mind, we turn to our task of interpreting Section 3031.1‘s definition which states that an electronic voting system “shall provide for a permanent physical record of each vote cast.” Although Appellants offer different reasons why the DREs at issue cannot meet this definition, each of their arguments is grounded in their belief that the Election Code requires an electronic voting system to produce a software-independent, voter-verified paper record at the time each vote is cast. However, while Appellants attempt to read this requirement into Section 3031.1, the plain language of the statute provides otherwise.
Appellants cannot point to any provision in the Election Code requiring an electronic voting system to print a paper ballot for each individual voter to view. On the contrary, the plain language of Section 3031.1 states that an electronic voting system shall “provide for a permanent physical record.”
Moreover, other Election Code provisions show the Legislature contemplated and authorized electronic voting systems that would register votes during an election without paper ballots. Section 3031.1 broadly defines “ballot” as “ballot cards or paper ballots upon which a voter registers or records his vote or the apparatus by which the voter registers his vote electronically....”
Appellants argue that the DREs’ printed records are mere copies of electronic data that may have been altered without detection and suggest counties should purchase optical scanners or DREs equipped with new VVPAT (Voter-Verified Paper Audit Trail) technology. Even though Appellants have raised a valid concern about DRE security, this assertion does not affect our finding that the Legislature clearly authorized electronic voting systems that do not utilize paper ballots. While VVPAT technology may offer additional security against election fraud, Appellants should direct their claims to the Legislature, which is better suited to investigate the advantages and disadvantages of VVPAT DREs and examine policy considerations that would arise from requiring voter-verified paper ballots. Although Appellants laud paper records as a panacea to voting fraud, even paper ballots are not a completely secure system without risk as there are many opportunities for tampering to occur from the time a voter casts his or her ballot until the time a winner is declared. Appellants also seem to assume there would be no practical problems in attempting to implement a contemporaneous paper record requirement while preserving voter privacy and election security.10 As the certified DREs are able to print individual vote records at the close of an election, the DREs produce a permanent physical record of each vote cast as contemplated by Section 3031.1.11 Thus, the Commonwealth Court correctly granted the Secretary summary relief on Count I of Appellants’ Petition for Review.
B. Statistical Recount Requirement (25 P.S. § 3031.17 )
In their second challenge, Appellants claim the technical attributes of the DREs make them incapable of allowing election officials to conduct a statistical recount of election returns pursuant to Section 3031.17, which provides as follows:
The county board of elections, as part of the computation and canvass of returns, shall conduct a
statistical recount of a random sample of ballots after each election using manual, mechanical or electronic devices of a type different than those used for the specific election. The sample shall include at least two (2) per centum of the votes cast or two thousand (2,000) votes whichever is the lesser.
Although the Commonwealth Court specifically found the DREs at issue can be subject to a statistical recount by printing vote records that can be counted manually at the close of the election, Appellants emphasize the DREs do not produce a record from which officials could determine if the DRE correctly recorded a voter‘s selection. Suggesting the Commonwealth Court incorrectly defined the term “recount,” Appellants distinguish between the terms “recanvass” and “recount,” claiming that a recanvass only checks whether the votes were correctly counted whereas a recount assesses whether votes were correctly captured in the first place. Appellants argue the legislative history of the 1980 amendments authorizing electronic voting systems shows a recount must verify voter intent as some legislators refused to support the amendments unless they contained a statistical recount to detect and deter fraud.
Even assuming that votes recorded by a DRE can be recounted, Appellants claim the DREs prevent officials from conducting a statistical recount by “devices of a type different than those used in the election” as a DRE prints software-dependent vote records. In contrast, Appellants argue that optical scan systems and VVPAT DREs meet this requirement as they retain an original voter-verified paper record which can be counted by another electronic device or by hand. Appellants again take issue with the Commonwealth Court‘s finding that the Election Code does not require software-independent vote records, accusing the Commonwealth Court of implicitly repealing the statistical recount requirement for electronic voting systems in Section 3031.17. As portions of the 2004 amendments pertaining to full recounts provide that electronic voting systems utilizing paper ballots must be subject to a full recount and any other type of electronic voting system be subject to a recanvass (
In response, the Secretary supports the Commonwealth Court‘s finding that the DREs can conduct a statistical recount using a “device of a different type” as required by Section 3031.17 as a DRE‘s printed records can be counted manually or in the alternative, a DRE‘s electronic records can be transferred on external media devices to be recounted on another electronic device using different software. The Secretary distinguishes the statistical recount provision from full recounts required by other Election Code provisions, claiming that while a statistical recount is automatically conducted on a small random sample of ballots at the close of every election, full recounts are only performed in the event of discrepancy in the voting results or a request by voters to ensure against fraud or error. The Secretary claims the purpose of the statistical recount is different; a “‘statistical recount’ seeks merely to determine whether the original tabulation was performed correctly ... [and] is not designed to be a forensic examination into whether a voter‘s intent was properly recorded by the machine.” Secretary‘s Brief, at 29. Moreover, the Secretary rejects Appellants’ claim that the Commonwealth Court implicitly repealed the “statistical recount” requirement by finding that the 2004 amendments authorized electronic voting
Appellants’ argument that a statistical recount requires election officials to assess whether a DRE has correctly captured voter intent is another reformulation of their contention that DREs must produce voter-verified paper ballots, which we have determined is not required by the Election Code. The plain language of Section 3031.17 supports the Commonwealth Court‘s finding that the statistical recount requirement constitutes a mere recount or retally of a random sample of a small percentage of the votes. Election officials can conduct a statistical recount on the DREs at issue by printing the requisite percentage of vote records for a manual count or removing the electronic data on external media devices to use a different electronic device to recount the results. The purpose of the statistical recount, or any random sampling, is to ensure that the small random sample taken is representative of the voting results of the entire population. This provision gives officials a simple method to assess whether the tabulating element of the DRE is working properly without having to print out all the votes cast at every election.
We also reject Appellants’ claim that the word “recount” should be defined as an assessment of each ballot to determine voter intent and “recanvass” be defined as a retally. While the Election Code does not define “recount,” the definitional section states that canvass “includes gathering the ballots after the election and counting, computing[,] and tallying the votes.”
In the 1980 amendments, the General Assembly authorized electronic voting with the additional requirement that electronic voting systems be subject to the automatic statistical recount procedure at every election. The Legislature subsequently clarified in the 2004 amendments that the same full recount procedures set forth in
C-D. Protection from Tampering (25 P.S. § 3031.7 ) and the Adequacy of the Secretary‘s Examination of the DREs’ Security
We will address the next two issues together as Appellants’ arguments are interrelated. In their third issue, Appellants maintain the Commonwealth Court erred in finding the DREs satisfy the statutory certification requirements set forth in Section 3031.7 related to a DRE‘s security from tampering:
No electronic voting system shall, upon examination, or reexamination, be approved by the Secretary of the Commonwealth, or by any examiner appointed by him, unless it be established that such system, at the time of such examination or reexamination:
*
(12) Provides acceptable ballot security procedures and impoundment of ballots to prevent tampering with or substitution of any ballots ...
*
(16) If the voting system is of a type which provides for the computation and tabulation of votes at the district level, the district component of the automatic tabulating equipment shall include the following mechanisms or capabilities:
*
(iii) It shall be so constructed and controlled that, during the progress of voting, it shall preclude every person from seeing or knowing the number of votes theretofore registered for any candidate or question; and it shall
preclude every person from tampering with the tabulating element.
Specifically, Appellants argue that the DREs at issue cannot be deemed to have sufficient protection against tampering when the DREs have security vulnerabilities that make it possible to alter votes. Claiming that the mere possibility that a DRE‘s tabulating element is susceptible to tampering warrants its decertification, Appellants argue that the plain language of the statute is obligatory as it provides that an electronic voting system “shall preclude every person from tampering with the tabulating element.”
In their motion for summary judgment and in their appellate brief, Appellants cite to expert testimony and independent studies to support their claim that the DREs at issue must be tamper-proof to comply with the Election Code.14 Appellants’ expert, Dr. Jones, asserted that it would be possible to inject malicious code into a DRE to change the vote tabulation. Appellants also rely on the 2005 report of a task force convened by the Brennan Center for Justice which found that the Sequoia AVC Advantage, ES & S iVotronic and Diebold Accuvote-TSx lack a “powerful countermeasure to software attacks” and 2006 study by Princeton University researchers who claimed that a predecessor to the AccuVote-TSx was susceptible to tampering as malicious software could be installed onto the DRE and transferred to other systems. In addition, Appellants note the Secretaries of State in Ohio and California have decertified DREs due to perceived security vulnerabilities and other state legislatures have required DREs to have VVPAT technology.
In their fourth claim, Appellants claim the Secretary failed to use adequate testing procedures in examining the DREs’ security. See
The Secretary asserts the Commonwealth Court correctly held that the DREs at issue preclude tampering as required by Section 3031.7(16)(iii). Criticizing Appellants’ claims of tampering as “hypothetical,” the Secretary maintains Appellants have not identified a single, meaningful security breach in a Pennsylvania election. The Secretary stresses that the DREs at issue have been tested and certified as secure for reliable and accurate voting by independent federal laboratories and the Secretary‘s own examination. In addition, the Secretary emphasizes that the Election Code outlines additional administrative and procedural security protections to preclude individuals from tampering with the tabulating equipment of the electronic voting system. See
Rejecting Appellants’ claim that Section 3031.7(16) demands an electronic voting system have absolute security, the Secretary maintains the Code does not require a DRE to be immune from tampering, but simply have the capability to preclude tampering, as the introductory paragraph of Section 3031.7(16) states that an electronic voting system “shall include the following mechanisms or capabilities ....” (emphasis added). As all voting systems are fallible and exhibit vulnerabilities, the Secretary argues the possibility of electoral fraud or system malfunction can never be avoided no matter what type of system is used. Moreover, the Secretary emphasizes the Code gives her discretion to determine whether a particular system precludes tampering. Even if this Court does not find the plain language of this provision to be dispositive, the Secretary asserts there is no basis to conclude from the legislative history that the Legislature intended to require absolute security against all potential threats.
In response to Appellants’ challenge to the certification process, the Secretary defends the Commonwealth Court‘s finding that Appellants failed to present any evidence that the DREs at issue actually fell short of the statutory requirements and were seeking inappropriate oversight of the Secretary‘s discretionary duties. Refuting Appellants claims that she ignored the DREs’ vulnerabilities, the Secretary maintains that she determined that risks posed by such vulnerabilities were not sufficient to violate the Election Code‘s requirements. Thus, the Secretary concludes that Appellants presented no basis for which the lower court could have concluded that she had acted arbitrarily or mistakenly in certifying the DREs for use in Pennsylvania elections.
Our resolution of this claim turns on Appellants’ narrow argument that the DREs at issue should be decertified and prohibited from use in Pennsylvania elections based on the possibility that such
As the question of whether an electronic system has adequate security measures against tampering necessarily results in a subjective determination, the Legislature delegated this discretionary decision to the Secretary, who is the Pennsylvania‘s chief election official. Kuznik v. Westmoreland Cnty. Bd. of Comm‘rs, 588 Pa. 95, 139-40, 902 A.2d 476, 502 (2006). We have previously held that “a reviewing court will ordinarily defer to an agency‘s interpretation of a regulation or a statute it is charged to enforce.” Id. (citation omitted).
[W]hen the courts of this Commonwealth are faced with interpreting statutory language, they afford great deference to the interpretation rendered by the administrative agency overseeing the implementation of such legislation.... Thus, our courts will not disturb administrative discretion in interpreting legislation within an agency‘s own sphere of expertise absent fraud, bad faith, abuse of discretion or clearly arbitrary action.
Id. (quoting Winslow-Quattlebaum v. Maryland Ins. Group, 561 Pa. 629, 752 A.2d 878, 881 (2000)) (affording “great deference” to state election officials’ interpretation of the Election Code in determining whether HAVA preempted Pennsylvania‘s referendum requirement).
As noted above, the Commonwealth Court found the Secretary was entitled to summary relief on this claim as Appellants had not shown any more than the mere possibility that the certified DREs in theory could be subject to tampering, presenting no evidence that the challenged devices have failed to accurately record votes or experienced a security breach in an actual election. Upon Appellants’ request, the Secretary conducted reexaminations of the DREs with the assistance of an examiner, who reviewed federal test results of federal independent testing authorities (ITAs), created test protocols for each DRE, and performed penetration analyses to test the voting systems’ security. In addition, the Secretary considered the competing opinions of the parties’ experts and the studies cited by Appellants identifying vulnerabilities in the security of the certified DREs. Taking all of this information into consideration, the Secretary determined that the DREs satisfied each of the Election Code‘s requirements, finding their vulnerabilities
On the same note, Appellants are not entitled to mandamus relief based on their contention that the Secretary testing standards are inadequate to assess DRE security from tampering. The writ of mandamus is an extraordinary remedy which exists to compel official performance of a ministerial act or a mandatory duty. Brown v. Levy, 621 Pa. 1, 4, 73 A.3d 514, 516 n. 2 (2013). “Where the action sought to be compelled is discretionary, mandamus will not lie to control that discretionary act, ... but courts will review the exercise of the actor‘s discretion where it is arbitrary or fraudulently exercised or is based upon a mistaken view of the law.” Pennsylvania State Ass‘n of Cnty. Comm‘rs v. Commonwealth, 545 Pa. 324, 330, 681 A.2d 699, 701-702 (1996).
Before a proposed electronic system can be submitted to the Secretary‘s examination, the Election Code provides that the system must have first been “examined and approved by a federally recognized independent testing authority and meet[ ] any voting system and performance and test standards established by the Federal Government.”
While the Legislature mandated that an electronic voting system must comply with specific federal testing and performance standards and the requirements set forth in the Election Code, it does not prescribe a particular testing procedure to govern the manner in which the Secretary is to perform the examination, but ultimately left this discretion to the expertise of the Secretary, who is tasked with implementing the Election Code. Although Appellants demand that this Court direct the Secretary to adopt more rigorous testing standards to examine DRE security, they have not provided this Court with an adequate basis to interfere with or control the Secretary‘s discretion as they failed to show the Secretary acted arbitrarily or mistakenly in directing the certification process.
E. Constitutional Challenges
Lastly, Appellants contend the Commonwealth Court erred in granting the Secretary summary relief on their constitutional challenges in Counts VII, IX, & X, claiming the Secretary‘s certification of DREs violates Article I, Sections 5 and 26 of the Pennsylvania Constitution as these devices are susceptible to interference. See
In addition, Appellants claims the Secretary‘s certification of the DREs violates Article VII, Section 6 which provides that “[a]ll laws regulating the holding of elections by the citizens ... shall be uniform throughout the State.”
While the Secretary acknowledges that the right to vote is fundamental, the Secretary argues that this principle does not by itself require strict scrutiny of Appellants’ claims. As there must be substantial governmental regulation to ensure that elections are fair, honest, and orderly, the Secretary asserts that the Commonwealth Court has applied a “gross abuse” standard to review claims challenging the constitutionality of election statutes. In re Nomination Papers of Rogers, 908 A.2d 948, 954 (Pa.Cmwlth.2006) (single judge opinion). As such, the Secretary claims that election regulations should be found constitutional if they are “reasonable, neutral, and do not work a severe restriction on the right to vote.” Secretary‘s Brief, at 56-57 (citing Weber, 347 F.3d at 1106). The Secretary argues Appellants have failed to show the certification and use of the DREs directly interferes with the right to vote as there is no evidence that any Pennsylvania county using DREs had experienced lost or miscounted votes, tampering of their election result, or malfunction preventing voters from casting their vote.
Moreover, the Secretary rejects Appellants’ claim that the certification of DREs violates Article VII, Section 6. While this constitutional provision requires uniformity of elections, the Secretary asserts that the Constitution does not require the Legislature to limit the number of types of voting systems that can be simultaneously certified for use as it “permit[s] the use of voting machines, or other mechanical devices for registering or recording and computing the vote, at all elections or primaries, in any county, city, borough, incorporated town or township....”
Although this Court has acknowledged that the right to vote is fundamental and “pervasive of other basic civil and political rights,” Bergdoll v. Kane, 557 Pa. 72, 85, 731 A.2d 1261, 1269 (1999) (citation omitted), the state may enact substantial regulation containing reasonable, non-discriminatory restrictions to ensure honest
We find persuasive the decisions of federal circuit courts that have held that DREs that register votes electronically without a voter-verified ballot do not severely restrict the right to vote. As mentioned supra, the Ninth Circuit emphasized in Weber that all balloting systems are imperfect; although DREs have many significant benefits in promoting voter turnout, offering an accurate and cost-effective method, presenting a user-friendly display, and eliminating ballot ambiguity problems exhibited by traditional paper ballots, DREs are vulnerable to programming errors and may make fraud more difficult to detect. Weber, 347 F.3d at 1106. However, the Ninth Circuit emphasized that state officials have the power to substantially regulate the election process as it is “the job of democratically-elected representatives to weigh the pros and cons of various balloting systems.” Id. at 1107. Refusing to interfere with this discretion, the Ninth Circuit found that “[s]o long as their choice is reasonable and neutral, it is free from judicial second-guessing.” Id. Cf. Hennings v. Grafton, 523 F.2d 861, 864 (7th Cir. 1975) (providing that “[v]oting device malfunction [and] the failure of election officials to take statutorily prescribed steps to diminish what was at most a theoretical possibility that the devices might be tampered with ... fall far short of constitutional infractions“).
In claiming the uniformity requirement of Article VII, Section 6 is violated, Appellants do not assert that counties should be required to employ a single kind of voting system throughout the Commonwealth. Instead, Appellants’ argument sounds in equal protection principles as they allege that voters in counties that utilize DREs are less likely to have their votes counted accurately that those voters who use systems with voter-verified ballots. Citing to Black v. McGuffage, 209 F.Supp.2d 889 (N.D.Ill.2002), Appellants suggest that the Secretary‘s certification of the DREs is unconstitutional as it “arbitrarily and unnecessarily values some votes over others.” Appellants’ Brief at 54 (quoting Black, 209 F.Supp.2d at 899).
Even if we overlook the fact that Appellants never raised an equal protection claim in their Petition for Review, we reiterate that Appellants have presented no evidence to suggest that DREs are any less accurate than any other voting system. Appellants’ reliance on Black is misplaced; the federal district court in Black denied preliminary objections seeking dismissal of the action as the plaintiffs had sufficiently stated a federal Equal Protection claim in presenting voting statistics showing that voters in jurisdictions using punch card systems and optical scan systems without error notification features were “statistically less likely to have their votes counted.” Black, 209 F.Supp.2d at 899. In contrast, in this case, Appellants were given the opportunity to develop a full record to prove their claim that the DREs’ accuracy rates were inferior to those voting systems which they claim to be tamper proof. After ample discovery,
As a result, we find no merit in Appellants’ claim that the Secretary‘s certification of the DREs violated the fundamental right to vote or resulted in disparate treatment of any group of voters. As the Election Code bestows upon the Secretary the responsibility to choose between several voting systems with varying advantages and disadvantages, we see no reason to interfere with the Secretary‘s discretion in certifying the DREs at issue absent a showing that the decision was unreasonable or discriminatory.
III. Conclusion
For all of the aforementioned reasons, we conclude the Commonwealth Court did not err in granting the Secretary‘s petition for summary relief. In particular, we find the Secretary exercised proper discretion in determining that the certified DREs satisfy the requirements for electronic voting systems set forth in the Election Code and the use of the DREs does not violate Appellants’ fundamental right to vote as embodied within Article I, Section 5 of the Pennsylvania Constitution or the uniformity requirement in Article VII, Section 6 of the Pennsylvania Constitution. Thus, we affirm the Commonwealth Court‘s order.
Former Chief Justice CASTILLE and Former Justice McCAFFERY did not participate in the decision of this case.
Chief Justice SAYLOR, Justices EAKIN, BAER and TODD join the opinion.