Buchanan Ingersoll & Rooney Wins Dismissal of Petition to Decertify Pennsylvania’s Electronic Voting Systems in Banfield v. Aichele

Philadelphia and Harrisburg – October 2, 2013 – Buchanan Ingersoll & Rooney announced today that a team including attorneys Shawn N. Gallagher, Robert J. Fitzgerald, David A. Schumacher, and legal specialist Cheri Pearce, obtained the dismissal of the remaining claims in the Petition for Review filed in Banfield v. Aichele. The Petition, filed more than seven years ago by 24 individual voters, had sought the decertification of “direct recording electronic” voting machines (DREs), voting systems that display ballots electronically and allow a voter to make a choice using a push button, dial, or touch screen. DREs are used in 55 of Pennsylvania’s 67 counties, including Philadelphia and Allegheny. As a result of this judgment, millions of voters in Pennsylvania will be able to continue to use the voting systems with which they are familiar, and the Commonwealth need not replace current DREs at an estimated cost of more than $100 million.

The Petitioners had asserted that alleged “operating defects” and “security flaws” in DREs render them incapable of meeting the accuracy, safety, and reliability requirements of the Pennsylvania Election Code and Pennsylvania Constitution.

On behalf of Secretary of the Commonwealth Carol Aichele, the team argued that the Petitioners were not entitled to second-guess the Secretary’s determination that DREs are safe, reliable, and accurate or to otherwise prescribe the best way for the Secretary to perform her duties. The application also explained that the Petitioners had failed to present any evidence that real votes had been lost, miscounted, or denied because of the use of DREs.

Judge Leadbetter, considering the case alone, agreed. In an Opinion dated October 1, 2013, the Court held that, without evidence that DREs actually “fail to accurately record votes when properly used,” the Petitioners were seeking to have the Court exercise “inappropriate oversight” of the Secretary. The Court also determined that the conclusions of Petitioners’ experts relating to alleged vulnerabilities and possible manipulations did not establish that DREs are incapable of counting and tabulating votes, which is what the law requires. The Court concluded that the “mere possibility of error” was insufficient to state a violation of the Election Code or the Constitution.

The ten-count Petition was filed in August 2006. As noted by the Court, the merits of the Petition had previously been considered three times by the Commonwealth Court. In February 2007, prior to Buchanan’s appearance in the case, the Court dismissed the Secretary’s Preliminary Objections. In August 2012, the Court, sitting en banc and upon consideration of the team’s briefing and Steven E. Bizar’s oral argument, denied the Petitioner’s efforts for summary judgment. A few months later, based on the rationale of that August opinion, the Court dismissed four of the Petition’s causes of action. The remaining and final six claims were disposed of by the October 2013 opinion.

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