Mark BANFIELD, Sarah Beck, Joan Bergquist, Alan Brau, Lucia Dailey, Peter Deutsch, Constance Fewlass, Barbara Glassman, Marijo Highland, Janis Hobbs-Pellechio, Deborah Johnson, Robert Maxwell McCord, 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, Petitioners v. Pedro CORTES, Secretary of the Commonwealth, Respondent.
Commonwealth Court of Pennsylvania.
April 12, 2007
922 A.2d 36
Accordingly, we must reverse the Commission‘s order dismissing Petitioner‘s appeal as untimely and remand to the Commission for a decision on the merits of Petitioner‘s appeal of the Modified Ruling.
Judge COLINS dissents.
ORDER
AND NOW, this 12th day of April, 2007 the order of the State Harness Racing Commission in the above-captioned matter which dismissed Frank Pellegrini‘s appeal as untimely is reversed and we remand to the Commission for a decision on the merits of Frank Pellegrini‘s appeal of the Commission‘s modified ruling.
Jurisdiction relinquished.
Argued Nov. 15, 2006.
Decided April 12, 2007.
Mark A. Aronchick, Alan C. Promer, John S. Stapleton, and Sozi P. Tulante, Philadelphia, for respondent.
BEFORE: SMITH-RIBNER, Judge, and PELLEGRINI, Judge, and FRIEDMAN, Judge, and LEADBETTER, Judge, and COHN JUBELIRER, Judge, and SIMPSON, Judge, and LEAVITT, Judge.
OPINION BY Judge FRIEDMAN.
Pedro Cortes, Secretary of the Commonwealth, (Secretary) has filed preliminary objections to the petition for review (Petition) filed in this court‘s original jurisdiction by Mark Banfield, Sarah Beck, Joan Bergquist, Alan Brau, Lucia Dailey, Peter Deutsch, Constance Fewlass, Barbara Glassman, Marijo Highland, Janis Hobbs-Pellechio, Deborah Johnson, Robert Maxwell McCord, 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 and Jeanne Zang (collectively, Electors). In the Petition, Electors set forth the following allegations.
The Secretary has certified Direct Recording Electronic voting systems (DREs) for use in Pennsylvania.1 (Petition, ¶ 40.) DREs are devices that display ballots and allow a voter to make choices with a push button, dial or touch screen and then cast the vote. DREs are supposed to record the vote on an electronic storage device in the form of digital markings. (Petition, ¶ 39.) The certified DREs produce no contemporaneous external paper record that would allow voters to verify that their votes were recorded accurately. (Petition, ¶ 41.) Because the systems are paperless, election officials have no independent physical record to use for auditing DRE vote counts. (Petition, ¶¶ 42-43.)
The various certified DREs have failed during elections conducted in Pennsylvania and other states by: (1) losing almost 13,000 votes; (2) repeatedly registering votes for one candidate when the voter was attempting to vote for another candidate; (3) causing very high “undervote” rates; (4) failing to register votes when the ballot contained only one question; (5) counting more than 1,500 votes twice; (6) failing to print “zero tapes” to demonstrate that no lawful votes were stored on the machine prior to the election; (7) printing “zero tapes” after votes had been cast, i.e., at a time when the machines should not have reported zero votes; (8) printing “zero tapes” that did not contain all necessary information; (9) reporting 100,000 “phantom” votes, i.e., votes that were not cast by any voter; (10) failing to record any votes in four precincts due to programming errors, forcing officials to certify election results without votes from those precincts; (11) failing to activate for use; or (12) failing to record write-in votes. In certifying the DREs, the Secretary did not confirm that malfunctions that occurred previously in other states had been fixed.2 (Petition, ¶¶ 54, 58-59, 62, 64, 66-68.)
The Secretary‘s certification of such DREs is the result of the Secretary‘s deficient examination criteria. The Secretary‘s testing procedures do not approximate those that are customary in the information technology industry for systems that require a high level of security. The Secretary does not perform a “code audit,” i.e., a review of a computer program‘s source code to determine whether it meets applicable standards. DRE vendors do not disclose the software programs they use, making it impossible for the Secretary to verify that the programs used in an election are the programs actually certified by the Secretary. To the extent that the Secretary relies on certifications of Independent Testing Authorities (ITA), which test DREs for manufacturers, ITAs are fraught with conflicts of interest, and they have repeatedly approved systems later found to have security problems. Moreover, Pennsylvania certification requirements are more stringent than those in the ITA process. (Petition, ¶¶ 81-94.)
By letter dated March 7, 2006, Elector Alan Brau asked the Secretary to re-examine one of the certified DREs. Brau enclosed a check for $450 and the signatures of ten qualified registered electors, as required by statute. By letter dated March 27, 2006, the Secretary denied the request, stating that the Secretary was not aware of any change to the DRE. The Secretary received three similar re-examination requests from other Electors, but the Secretary denied each one for the same reason. (Petition, ¶¶ 95-102.)
On August 15, 2006, Electors filed their Petition, setting forth ten Counts that allege violations of the
I. Mandamus
In the first preliminary objection, the Secretary argues that this court should dismiss Electors’ Petition because Electors seek mandamus relief but state no claim for which mandamus relief can be granted. We disagree.
Mandamus is an extraordinary remedy designed to compel official performance of a ministerial act or mandatory duty where there exists a clear legal right in the plaintiff and a corresponding duty in the defendant and where there is no other adequate remedy at law. County of Allegheny v. Commonwealth, 518 Pa. 556, 544 A.2d 1305 (1988). Mandamus will not lie to compel the performance of discretionary acts except where the exercise or non-exercise of discretion is arbitrary, fraudulent, or based upon a mistaken view of the law. Camiel v. Thornburgh, 507 Pa. 337, 489 A.2d 1360 (1985). “If [an official] abuses his [or her] discretion or acts under a mistaken view of the law, mandamus will lie to compel proper action.” Duncan Meter Corporation v. Gritsavage, 361 Pa. 607, 610, 65 A.2d 402, 403 (1949).
The Secretary first argues that Electors are not entitled to mandamus relief because decisions to certify DREs, to establish DRE testing criteria and to conduct re-examinations are discretionary. However, here, Electors have alleged facts sufficient to establish that the Secretary‘s decisions in this regard were arbitrary or based on a mistaken view of the law, i.e., either the Election Code or the Pennsylvania Constitution. Indeed, Electors allege that the Secretary decided to: (1) certify DREs that are not reliable or secure and that do not allow for vote verification or vote audits; (2) examine DREs without establishing uniform testing criteria that comply with the Election Code; and (3) refuse proper requests for statutorily-mandated DRE re-examinations. Thus, mandamus lies to compel proper action.
The Secretary next argues that Electors are not entitled to mandamus relief because Electors do not have a clear right to have the Secretary de-certify the DREs. However, because Electors have alleged sufficient facts to support their claim that the Secretary‘s DRE certifications were arbitrary or based on a mistaken view of the law, mandamus lies to compel proper action, i.e., de-certification of the DREs.
The Secretary also argues that Electors are not entitled to mandamus relief because Electors do not have a clear right to have the Secretary re-examine a DRE in a particular manner. (See Secretary‘s brief at 19.) However, Electors do not allege in their Petition that any Elector asked the Secretary to re-examine a DRE in a particular manner. Thus, we shall not consider this matter further.
Finally, the Secretary argues that Electors are not entitled to mandamus relief because Electors do not have a clear right to have the Secretary establish uniform testing criteria that comply with the Election Code. However,
Accordingly, we overrule the Secretary‘s first preliminary objection.
II. Sovereign Immunity
In the second preliminary objection, the Secretary argues that Commonwealth officials are immune from claims seeking affirmative or mandatory injunctive relief.5 We disagree.
“Actions in mandamus are not subject to the defense of sovereign immunity.” Maute v. Frank, 441 Pa.Super. 401, 657 A.2d 985, 986 (1995) (citing Madden v. Jeffes, 85 Pa.Cmwlth. 414, 482 A.2d 1162 (1984)). Indeed, this court has stated that the doctrine of sovereign immunity does not bar suits that seek to compel state officials to carry out their duties in a lawful manner. Milestone Materials, Inc. v. Department of Conservation and Natural Resources, 730 A.2d 1034 (Pa.Cmwlth.1999); see also City of Philadelphia v. Shapp, 44 Pa.Cmwlth. 303, 403 A.2d 1043 (1979) (holding that sovereign immunity does not bar a mandamus action against the Governor and the Department of Transportation to compel their performance in accordance with constitutional and legislative mandates).
Accordingly, we overrule the Secretary‘s second preliminary objection.
III. Indispensable Parties
In the third preliminary objection, the Secretary argues that this court should dismiss Counts I to V and VIII to X of the Petition for failure to join indispensable parties, i.e., the fifty-six counties planning to use one or more of the challenged DREs in the November 2006 election. We disagree.
A party is indispensable when his or her rights are so connected with the claims of the litigants that no decree can be made without impairing those rights. Sprague v. Casey, 520 Pa. 38, 550 A.2d 184 (1988). “A corollary of this principle is that a party against whom no redress is sought need not be joined. In this connection, if the merits of a case can be determined without prejudice to the rights of the absent party, the court may proceed.” Id. at 48-49, 550 A.2d at 189 (citations omitted).
Here, Electors do not seek redress from the fifty-six counties, and, because the November 2006 election has passed, the fifty-six counties will not be prejudiced by a judgment in favor of Electors. Even absent a request, the Secretary could de-certify a DRE at any time based solely on the statutory requirements for certification, and counties using certified DREs must be prepared for that possibility.
Accordingly, we overrule the Secretary‘s third preliminary objection.
IV. Separation of Powers
In the fourth preliminary objection, the Secretary argues that Electors ask this court to violate the separation of powers doctrine by usurping the power of the executive branch of government to de-certify electronic voting systems, re-examine electronic voting systems and establish testing criteria. We disagree.
The judicial branch does not usurp the power of the executive branch by interpreting and applying a legislative enactment and directing that the Secretary comply with it. See Commonwealth v. Sutley, 474 Pa. 256, 378 A.2d 780 (1977) (stating that, in Pennsylvania‘s tripartite government of equal, separate and autonomous branches, each branch acts as a check on the other, and the domain of the judiciary is to interpret, construe and apply the law).
Accordingly, we overrule the Secretary‘s fourth preliminary objection.6
V. Standing and Ripeness
In the fifth preliminary objection, the Secretary argues that, due to lack of standing and lack of ripeness, this court should dismiss Counts I to V and VII to X of the Petition with respect to all Electors and should dismiss Count VI with respect to all Electors except the four who filed requests for re-examination under
To establish standing, Electors must allege a substantial, direct and immediate interest in the outcome of the litigation. Wm. Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269 (1975). An interest is substantial if it surpasses the common interest of all citizens in obedience to the law; an interest is direct if it is harmed by the matter that is the subject of the complaint; and an interest is immediate if it is not remote or speculative. Id.
Electors have alleged a substantial interest in the certification of the challenged DREs by asserting that, unlike all citizens, they are required to vote using DREs that are not reliable or secure and that do not provide a means for vote verification or vote audit. (Petition, ¶¶ 3-6, 36.) Electors have alleged a direct interest by asserting that, because of such deficiencies, Electors have “no way of knowing” whether the DREs will recognize their votes in an election. (Petition, ¶¶ 1, 41.) Finally, Electors have alleged an immediate interest by asserting that “each wants to cast a ballot” in future elections, and “each wants their future votes ... to be properly counted and weighted.” (Petition, ¶ 37.) Thus, Electors have standing.
With respect to the first prong, Electors’ claim does not involve uncertain and contingent events. The Secretary already has certified DREs that provide no way for Electors to know whether their votes will be recognized. With respect to the second prong, if this court waits to review the Secretary‘s certification of the DREs until Electors challenge the results of an election, Electors will suffer hardship because it will be impossible to determine the validity of the challenge by auditing the election results.
Accordingly, we overrule the Secretary‘s fifth preliminary objection.
VI. Exhaustion of Available Remedies
In the sixth preliminary objection, the Secretary argues that Electors failed to seek re-examination of the eSlate, AVC Advantage and AVC Edge II voting systems under
The exhaustion of administrative remedies rule is neither inflexible nor absolute; a court may exercise jurisdiction where an administrative remedy is inadequate. Feingold v. Bell of Pennsylvania, 477 Pa. 1, 383 A.2d 791 (1977). Here, four of the Electors filed proper requests for the re-examination of DREs other than the eSlate, AVC Advantage and AVC Edge II, but the Secretary denied those requests despite the fact that the Secretary had a statutory duty to conduct the re-examinations. Because Electors found that administrative remedy inadequate on four separate occasions, Electors were not required to continue seeking such relief before filing the Petition.
Accordingly, we overrule the Secretary‘s sixth preliminary objection.
VII. Laches
In the seventh preliminary objection, the Secretary argues that the Petition is barred by the doctrine of laches because: (1) Electors waited thirteen weeks after the May 2006 primary election to file their Petition, and they allege no facts to justify that delay; and (2) the Secretary is prejudiced by the filing of the Petition less than seven weeks prior to the General Election.
Laches is an equitable defense that bars relief when the plaintiff‘s dereliction indicates a lack of due diligence in failing to institute an action, and such failure results in prejudice to another. Commonwealth ex rel. Baldwin v. Richard, 561 Pa. 489, 751 A.2d 647 (2000). However, the defense of laches is an affirmative defense that is not properly raised in preliminary objections but must be raised in a
Accordingly, we overrule the Secretary‘s seventh preliminary objection.
VIII. Failure to Appeal
In the eighth preliminary objection, the Secretary argues that Count VI should be dismissed because the four Electors who requested re-examination under
The Secretary contends that Electors had the right of appeal under
Although
Accordingly, we overrule the Secretary‘s eighth preliminary objection.
IX. Legal Sufficiency of Count I
In the ninth preliminary objection, the Secretary argues that Count I should be dismissed as legally insufficient. We disagree.
In Count I, Electors allege that the Secretary has violated
First, the Secretary contends that
Second, the Secretary contends that the Ballot Image Retention (BIR) feature of some DREs, which is mentioned in the Petition, satisfies the “permanent physical record” requirement because the BIRs are capable of being printed. However, if the BIR feature is only on some DREs, and those DREs are not identified in the Petition, we cannot dismiss Count I on that basis. Moreover, Electors allege that a BIR is not necessarily a “permanent physical record” of the vote cast because the BIR does not allow the voter to verify the vote and because it is simply the data recorded by the software, correctly or incorrectly. (Petition, ¶ 49.) Because a BIR may not be a “permanent physical record” of the vote cast, we cannot dismiss Count I based on the BIR feature.
Accordingly, we overrule the Secretary‘s ninth preliminary objection.
X. Legal Sufficiency—Counts I, II, IV and V
In the tenth preliminary objection, the Secretary argues that this court should dismiss Counts I, II, IV and V of the Petition as legally insufficient based on the separation of powers doctrine and
The Secretary asserts that: (1) these Counts violate the separation of powers doctrine because they force this court to make a policy choice in favor of a “voter verified independent record,” a policy choice that is properly brought before the legislature;11 and (2) a “voter verified independent record” would jeopardize the right to secrecy in voting provided by
XI. Legal Sufficiency of Count VIII
In the eleventh preliminary objection, the Secretary argues that this court should dismiss Count VIII of the Petition for failure to plead a constitutional injury under
Our supreme court has stated that elections are free and equal under
when they are public and open to all qualified electors alike; when every voter has the same right as any other voter; when each voter under the law has the right to cast his ballot and have it honestly counted; when the regulation of the right to exercise the franchise does not deny the franchise itself, ... and when no constitutional right of the qualified elector is subverted or denied him.
In re 1991 Pennsylvania Legislative Reapportionment Commission, 530 Pa. 335, 356, 609 A.2d 132, 142 (1992) (emphasis added) (quoting City Council v. Marcincin, 512 Pa. 1, 8, 515 A.2d 1320, 1323 (1986)).
In Count VIII, Electors allege that the Secretary‘s certification of the challenged DREs will make it “likely that a significant number of votes will not be counted accurately, or at all.” (Petition, ¶ 133.) Electors also incorporate the allegation that they have “no way of knowing” whether a DRE has recognized their votes so that they will be counted. (Petition, ¶ 41.) Because Electors have a right under
Accordingly, we overrule the Secretary‘s eleventh preliminary objection.
XII. Legal Sufficiency of Count IX—Equal Protection
In the twelfth preliminary objection, the Secretary argues that this court should dismiss Count IX of the Petition for failure to allege an equal protection violation under
In Count IX, Electors allege that their equal protection rights are at risk because, “while they are compelled to vote in counties using the certified DRE voting systems, other registered voters in Pennsylvania may vote in precincts or counties using voting systems ... that do not suffer from the [identified] defects” of the DREs. (Petition, ¶ 139.) The Secretary argues that Electors fail to allege an equal protec-
Accordingly, we overrule the Secretary‘s twelfth preliminary objection.
XIII. Legal Sufficiency of Count IX—Denial of a Right
In the thirteenth preliminary objection, the Secretary argues that this court should dismiss Count IX of the Petition for failure to allege the denial of a right under
In Count IX, Electors allege that the Secretary‘s certification of the challenged DREs threatens their right to vote because the defects and security flaws create the risk that Electors’ votes will be rendered meaningless or, worse yet, deemed cast for a candidate for whom they did not vote. (Petition, ¶ 138.) Electors also incorporate the allegation that they have “no way of knowing” whether a DRE has recognized their votes so that they will be counted. (Petition, ¶ 41.) Because Electors have a right to vote and because Electors have no way of knowing whether using the DREs affords them that right, Electors have pled the denial of a civil right under
Accordingly, we overrule the Secretary‘s thirteenth preliminary objection.
XIV. Legal Sufficiency of Count X
In the fourteenth preliminary objection, the Secretary argues that this court should dismiss Count X of the Petition for failure to state a claim under
In Count X, Electors allege that the Secretary‘s DRE certifications have deprived Electors of their uniformity rights because the certifications allow some counties to use DREs that lack effective mechanisms for election audits, while other counties use voting systems that have effective mechanisms for election audits. (Petition, ¶¶ 142-43.) The Secretary points out that
Accordingly, we overrule the Secretary‘s fourteenth preliminary objection.
XV. Relief Pendente Lite
In the fifteenth preliminary objection, the Secretary argues that Electors are not entitled to relief pendente lite. However, in the Secretary‘s brief, the Secretary concedes that Electors no longer seek such relief. (Secretary‘s brief at 49 n. 31.) Accordingly, we overrule the Secretary‘s fifteenth preliminary objection.
XVI. Count VII
In the sixteenth preliminary objection, the Secretary asks this court either to dismiss Count VII of the Petition as duplicative of Count III or direct Electors to re-plead Count VII with greater specificity.
In Count VII, Electors allege that the Secretary “has failed to adopt uniform, rigorous testing procedures that would adequately address the security, reliability and accuracy of voting systems.” (Petition, ¶ 130) (emphasis added). In Count III, Electors allege that the Secretary‘s testing procedures were insufficient to determine whether the DREs met certain requirements set forth in
We also conclude that Count VII is sufficiently specific. A pleading is sufficiently specific if it provides enough facts to enable the defendant to frame a proper answer and prepare a defense. Commonwealth ex rel. Milk Marketing Board v. Sunnybrook Dairies, Inc., 29 Pa.Cmwlth. 210, 370 A.2d 765 (1977). Here, Electors allege that the Secretary failed to adopt adequate DRE testing procedures. The Secretary knows his own testing procedures. Thus, to prepare a defense to Count VII, the Secretary need only establish that the testing procedures in use enable the Secretary to determine whether DREs meet all of the requirements of the Election Code. See
Accordingly, we overrule the Secretary‘s sixteenth preliminary objection.
ORDER
AND NOW, this 12th day of April, 2007, the preliminary objections filed by Pedro Cortes, Secretary of the Commonwealth, are hereby overruled.
DISSENTING OPINION BY Judge LEAVITT.
Respectfully, I dissent from the majority‘s conclusion that the Petitioners have stated a cause of action in mandamus to compel the Secretary of the Commonwealth to decertify seven different Direct Recording Electronic (DRE) voting systems. Likewise, I do not believe that this Court can, by writ of mandamus, compel the Secretary to adopt “rational and appropriate” standards to guide his approval of DRE voting systems. The Secretary‘s decision to approve, or to disapprove, electronic voting systems requires the exercise of discretion and, as such, cannot be compelled by a writ of mandamus.
DRE voting systems are governed by standards in the Pennsylvania Election Code.1
(11) Is suitably designed for the purpose used, is constructed in a neat and workmanlike manner of durable material of good quality, is safely and efficiently useable in the conduct of elections and, with respect to the counting of ballots cast at each district, is suitably designed and equipped to be capable of absolute accuracy, which accuracy shall be demonstrated to the Secretary of the Commonwealth.
(12) Provides acceptable ballot security procedures and impoundment of ballots to prevent tampering with or substitution of any ballots or ballot cards.
(13) When properly operated, records correctly and computes and tabulates accurately every valid vote registered.
(14) Is safely transportable.
(15) Is so constructed that a voter may readily learn the method of operating it.
Petitioners assert that the Secretary‘s approvals of the seven DRE voting systems at issue were “sloppy, inadequate and illegal” because he did not properly test the systems. Petitioners’ Brief at 2. Specifically, they claim the Secretary‘s testing methods were “ad hoc,” “idiosyncratic” and conducted on “machines ... cherry picked ... by the manufacturer [and] tested ... depending on the whim of the tester.” Petitioners’ Brief at 9. They accuse the Secretary of knowing that the seven DRE voting systems he approved “cannot be relied upon to record votes accurately, change votes from one candidate to another and can be tampered with using devices as commonplace as the key to a hotel mini-bar.” Petitioners’ Brief at 2.
These are serious allegations that we are required to accept as true. However, no matter how strongly worded or fevered the allegations in a complaint, the task for this Court remains the same: whether and how this Court can intervene.
This Court is bound by the statutory standards established for electronic voting systems. It is not for the courts, under any legal theory,3 to amend the General Assembly‘s lengthy, detailed list of standards by adding new ones. Petitioners contend that the DRE voting systems are defective because they do not produce a
However, Petitioners direct us to the definitional section of the statute that describes an electronic voting system as one that “provide[s] for a permanent physical record of each vote cast.”
Petitioners are quite critical of how the Secretary has done his job, but they fail to correlate these criticisms to the actual language of the Election Code. Absent authority in the Election Code, we may not order the Secretary to adopt “rational” standards by which to do his job. If the standards in
This brings us to the question of how the Secretary is to decide whether electronic voting systems satisfy the demands of the Election Code. Again, the legislature has given clear directions.
Essentially, the Secretary‘s job is to examine an electronic voting system and produce his own report “stating whether, in his opinion ... the system can be safely used by voters....”
(b) Upon receipt of a request for examination or reexamination of an electronic voting system ..., the Secretary of the Commonwealth shall examine the electronic voting system and shall make and file in his office his report, attested by his signature and the seal of his office, stating whether, in his opinion, the system so examined can be safely used by voters at elections as provided in this act and meets all of the requirements hereinafter set forth.
It is the Secretary who has been given the responsibility and the discretion to evaluate electronic voting systems and determine whether they can be safely used. For the Secretary to determine that a system is “suitably designed,” constructed of “good quality,” offers “acceptable” security, is “safely transportable” and its use “readily” learned by the voter quite obvi-
A writ of mandamus will lie only where there is a clear right in the plaintiff to compel a public official‘s performance of a mandatory act that is ministerial in nature. Pennsylvania Dental Association v. Pennsylvania Insurance Department, 512 Pa. 217, 227, 516 A.2d 647, 652 (1986). Mandamus does not perform the function of an appeal, i.e., it does not “review or compel the undoing of an action by ... an official.” Id. Most importantly, it does not compel the exercise of discretion in a particular way. Id.
The majority, however, asserts that the law of mandamus provides an exception for discretionary acts that have been tainted by the public official‘s “mistaken” view of the law or “arbitrary” decisionmaking. Majority Opinion at 42. The precedent cited by the majority does not support the use of mandamus in this case.4 As explained in Chadwick v. Dauphin County Coroner, 905 A.2d 600, 603 (Pa.Cmwlth.2006), the statement that mandamus will lie where discretion is arbitrarily or mistakenly exercised has its origin in cases where a public official has refused to exercise discretion at all. Lest there be any doubt, the Supreme Court established in Pennsylvania Dental Association, 512 Pa. at 227, 516 A.2d at 652, that mandamus does not “review or compel the undoing” of a public official‘s action. Here, the Secretary has exercised his discretion; that Petitioners do not like the result does not entitle them to a writ of mandamus.
Every person who disagrees with the outcome of a public official‘s exercise of discretion believes that public official has been “mistaken” or “arbitrary.” To allow a mandamus action in such circumstance would give redress to any person who believes herself aggrieved by the public official‘s exercise of discretion. This turns mandamus into a type of appeal forbidden by our Supreme Court in Pennsylvania Dental Association, 512 Pa. at 227, 516 A.2d at 652.
Mandamus simply does not lie to compel the exercise of the Secretary‘s discretion in a particular way. The Supreme Court‘s direction on this point is clear:
[I]t is the discretion and judgment of the official (who is vested with discretionary power) which prevails and not that of a court or a jury or a person aggrieved; and a Court cannot compel such official to exercise his discretion in a manner which will produce a result which the court may deem wise or desirable.
Maxwell v. Farrell School District Board of Directors, 381 Pa. 561, 566, 112 A.2d 192, 195 (1955) (emphasis added). The majority wants to hold a hearing to force the Secretary to exercise his discretion in a way that will produce a “wise and desirable” result. This is error. I would sustain the Secretary‘s demurrer to the extent Petitioners seek to have this Court issue a writ of mandamus to the Secretary (1) to adopt “rational” certification and testing guidelines and (2) to decertify the seven DRE voting systems at issue in the petition.5
What is not so clear is whether the Secretary can be compelled to reexamine four of the seven DRE voting systems as requested by Petitioners. Each reexamination request was made by ten or more electors who have tendered $450. The Secretary denied Petitioners a reexamination because “no credible evidence has been provided to this Department or come to our attention that any change or modification has been made to this system.” Petition ¶ 96. It is not clear that the Secretary can impose this condition upon a request for reexamination, given the language of the Election Code.
A reexamination may be undertaken at the request of a manufacturer, at the Secretary‘s initiative or at the request of electors.
(a) Any person or corporation owning, manufacturing or selling, or being interested in the manufacture or sale of, any electronic voting system, may request the Secretary of the Commonwealth to examine such system ... Any ten or more persons, being qualified registered electors of this Commonwealth, may, at any time, request the Secretary of the Commonwealth to reexamine any electronic voting system theretofore examined and approved by him. Before any reexamination, the person, persons, or corporation, requesting such reexamination, shall pay to the Treasurer of the Commonwealth a reexamination fee of four hundred fifty dollars ($450). The Secretary of the Commonwealth may, at any time, in his discretion, reexamine any such system theretofore examined and approved by him....
The Secretary contends, however, that he has discretion to deny a request for reexamination. In support, he directs the Court to
When an electronic voting system has been so approved, no improvement or change that does not impair its accuracy, efficiency or capacity or its compliance with the requirements hereinafter set forth, shall render necessary the reexamination or reapproval of such system.
The language of
A writ of mandamus can be used to compel an official to exercise discretion where he refuses to do so. Our Supreme Court has explained this principle as follows:
But where by a mistaken view of the law or by an arbitrary exercise of authority there has been in fact no actual exercise of discretion, the writ will lie.
Tanenbaum v. D‘Ascenzo, 356 Pa. 260, 263, 51 A.2d 757, 758 (1947). A public official‘s refusal to act could be intentional, i.e., arbitrary, or unintentional, i.e., the result of a mistaken view of the law.6 Where there has been no exercise of discretion, a writ of mandamus will lie.
I would overrule the Secretary‘s demurrer to the Petitioners’ request for a writ of mandamus ordering the Secretary to reexamine four of the DRE voting systems. It goes without saying, however, that the content of the reexamination reports is beyond our review in a mandamus action. As explained by our Supreme Court,
[w]here the [public official] is clothed with discretionary powers, and has exercised those powers, mandamus will not lie to compel a revision of the decision resulting from such exercise of discretion, though in fact, the decision may be wrong.
Anderson v. Philadelphia, 348 Pa. 583, 587, 36 A.2d 442, 444 (1944).
Petitioners’ real complaint, apparently, is with the performance of specific computers that have been acquired by County Boards of Elections. There are many reasons why computers do not perform on election day to specifications: problems may arise from a defect in one computer; an improper installation of a good computer; or a lack of training by those working at the polling places. These problems are
The Secretary reviews electronic voting systems to determine that they have been designed to satisfy the specifications set forth in
If Petitioners’ constitutionally protected right to vote has been abridged in a particular county or at a particular polling place, this may be redressable in equity. The proper defendants, in such an action, are the counties. This was the approach taken by electors in Allegheny County in Taylor v. Onorato, 428 F.Supp.2d 384 (W.D.Pa. 2006).7 Concluding that the plaintiffs in Taylor were not likely to succeed on the merits of their constitutional claims, the U.S. District Court denied the request for a preliminary injunction. The court explained its decision as follows:
[I]t is of course possible that one or more of the electronic machines may malfunction on election day, just as the lever machines in the past have from time-to-time malfunctioned on election day. No election system is perfect and no machine built by man is infallible. Voting machine malfunction has been, and probably always will be, a potential problem in every election.
Taylor, 428 F.Supp.2d at 388. These are wise observations with relevance to Petitioners’ claims against the Secretary: the best approval process guided by the strictest statutory standards will not guarantee perfect electronic voting devices in each county.
I agree with the Secretary that the County Boards of Elections are indispensable parties. They made the decision to purchase one of the seven DRE voting systems approved by the Secretary. They will be affected by the decision of this Court, should it decide to order the Secretary to decertify the seven DRE voting systems. Their absence leaves this Court without jurisdiction over Counts I, II, III, IV, V, VIII, IX, and X of the petition. See, e.g., Polydyne, Inc. v. City of Philadelphia, 795 A.2d 495, 496 n. 2 (Pa.Cmwlth.2002) (this Court held it lacked jurisdiction in action brought by disappointed bidder, because winning bidder had not been named as a party and the winning bidder‘s interests would not be represented by the city).
For all these reasons, I would sustain the Secretary‘s demurrer to the petition to the extent it seeks to compel the exercise of the Secretary‘s discretion in a particular way. Because Petitioners have failed to name indispensable parties, i.e., the County Boards of Elections, as respondents, I would sustain the Secretary‘s demurrer to Counts I, II, III, IV, V, VIII, IX and X for lack of jurisdiction. The fundamental flaw in Petitioners’ case is that they would have this Court substitute its judgment for the Secretary‘s, which is inappropriate in an action presented as an appeal; in an action at law, such as mandamus; or in a suit in equity. However, I would allow the case to go forward on the single question raised in Count VI, i.e., whether the Secretary can be compelled by a writ of mandamus to do a reexamination of the DRE voting systems upon request of ten electors.
Judge LEADBETTER and Judge COHN JUBELIRER join in this dissenting opinion.
Notes
Maxwell, 381 Pa. at 566, 112 A.2d at 195 (emphasis added). Taken out of context, the parenthetical phrase in the first sentence of the above-quoted passage can be read to mean that an arbitrary exercise of discretion is open to court interference. Read in its entirety, it is clear that discretion belongs to public officials, not to courts and not to plaintiffs.It is well settled that in a mandamus proceeding a court can compel a public official who is vested with a discretionary power to exercise that discretion; but (unless the discretion is arbitrarily or fraudulently exercised or is based upon a mistaken view of the law) it cannot interfere with or control the official‘s discretion or judgment. Expressed another way, it is the discretion and judgment of the official (who is vested with a discretionary power) which prevails and not that of a court or a jury or a person aggrieved; and a Court cannot compel such official to exercise his discretion in a manner which will produce a result which the Court may deem wise or desirable.