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How to bring recountable voting to your municipality


penPittsburgh.Org currently has a case before Common Pleas Court concerning its effort to have the County replace our aging, insecure voting machines with a new secure voting system that utilizes a human readable paper ballot or record as the official record of each voter's choices.   While we wait for the court case to play out, you don't have to wait to obtain new, secure voting equipment for use at polling places within your municipality.

The State of Virginia, which has exclusively used direct record electronic (DRE) voting machines statewide, recently de-certified their use.   Pennsylvania is among the minority of states that allows DRE voting machines which are used by 50 of the state's counties, including Allegheny County.   Now you can make sure your municipality stops using DRE's and joins the majority of US communities that use recountable paper.   Your municipality can require the County to provide your polling place with a voting system which uses a paper ballot or record that can be used for audits and recounts by holding a municipal referendum next spring.   There are two ways to do this.

For the first you need to get the governing body of your municipality to pass a simple resolution to put a referendum question on next Spring's primary ballot.   As an individual citizen, you can request that your municipality do this, the simplest way being to contact your municipal manager or an elected official and request that they pass such a resolution.   When delivered to the County Board of Elections, they would then be required to place the referendum question on the Spring ballot.   If your municipal government won't do that, then a more difficult alternative is to circulate a petition and collect a number of signatures equal to 10% of those who voted in your municipality in the most recent election.   Either way, we can help you in your effort.   For more information or assistance, contact OpenPittsburgh.Org at (412) 532-8338.

Getting recountable voting machines for your municipality:

Proposed referendum question

Shall an electronic voting system be used at polling places in the (City, Borough, Town, Township, etc.) of (name of municipality) of which the primary official record of each voter’s choices shall be a human readable paper ballot or record, marked and verified by each voter at the time of voting as correctly indicating their choices, with the election vote totals being electronically tabulated and the paper records/ballots being retained, untraceable to the voter’s identity, for audit and recount purposes?

The question length is restricted to 75 words by state law.   If your municipality’s name has 3 or more words (excluding Borough, City, etc., & “of”), call OpenPittsburgh.Org at (412) 532-8338 for possible question wording.

The Pennsylvania Election Code

The following is excerpted from the statutory requirements of the state Election Code (emphasis added to indicate pertinent wording):

Section 1102-A.   Authorization of Electronic Voting Systems for Use at Polling Places.-- Any county or municipality may, by a majority vote of its qualified registered electors voting thereon cast at any primary or election, authorize and direct the use of an electronic voting system for registering or recording and computing the vote at all elections and primaries held at polling places in such county or municipality.

Section 1103-A. (b)   The county election board, upon receipt of a request from the governing body of a municipality, said request being evidenced by the filing of a copy of a resolution certified by the secretary or clerk of the municipality, or upon the filing of a petition with them signed by qualified registered electors of the county or municipality, equal in number to at least ten (10) per centum of the total number of electors who voted in said county or municipality, at the preceding general or municipal election, but in no case less than fifty, shall, at the next primary or election, occurring at least sixty days thereafter, submit to the qualified registered electors of such county or municipality, the question "Shall an electronic voting system be used at polling places in the (county or municipality) of .....................?"

Discussion of the question template:

Section 1103-A (b) provides a template for the ballot question that is to be used with a referendum where the electorate can indicate its approval of disapproval of the use of electronic voting equip­ment.   An excessively restrictive interpretation of the blank at its end would be that it is solely for the name of the county or municipality.   But the Legislature did not specify “(name of county or municipality)” in that space and instead provided an open blank that can be used to further the intent of Section 1102-A.

In Section 1102-A of the Election Code, the Legislature expanded upon the state constitution, unambiguously providing that the electorate may “authorize and direct the use of an electronic voting system ...”   Had it said require instead of direct, it would not be as clear and might have left room for an interpretation that the electorate should only be able to force the use of some vague form of electronic voting equipment, with all considerations beyond that left entirely to Board of Elections’ discretion – but it didn’t say “require,” it said “direct.”

The Election Code does not define the word “direct.” Had the Legislature intended anything other than its normal meaning, they could easily have offered an alternative meaning in “Section 1101-A. Definitions.-- As used in this article.”   But it didn’t add a special case definition there, nor anywhere else in the Election Code.   Therefore, lacking the provision of an alternative meaning, any interpretation must rely upon the regular dictionary definition: direction, a verb meaning “to control the operations of; manage or govern; to cause to perform in a particular way.”

With the state’s referendum law stipulating that a ballot question can be up to 75 words in length; with the template’s open blank; and with a specific provision for the electorate to direct the use of an electronic voting system – it can be concluded that the template merely serves to stipulate the beginning words of the question; that the open blank provides for the completion of the question, up to 75 words in length; and that it is permissible for the remainder of the question to succinctly designate specific parameters which shall apply to the use of the electronic voting system.

Conclusion: The proposed referendum question can be placed on the Spring Primary ballot upon the request from the governing body, enabling the municipality's voters to consider and either approve or disapprove it.   Upon receiving a majority affirmative vote of the electorate, it would have the force of law, requiring that all polling places within the municipality use a voting system meeting the designated parameters.   The Board of Elections would have one year and 30 days to comply, and, if not, the Secretary of the Commonwealth would handle the full implementation before the Fall 2019 municipal election. – This should provide ample time for testing of the new system, training, etc. to occur before the 2020 presidential election cycle begins.

The Pennsylvania Constitution

The following is excerpted from the Pennsylvania Constitution (emphasis added to indicate pertinent wording):

Article VII, § 6. Election and registration laws.

All laws regulating the holding of elections by the citizens, or for the registration of electors, shall be uniform throughout the State, except that laws regulating and requiring the registration of electors may be enacted to apply to cities only, provided that such laws be uniform for cities of the same class, and except further, that the General Assembly shall by general law, permit 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 of the Commonwealth, at the option of the electors of such county, city, borough, incorporated town or township, without being obliged to require the use of such voting machines or mechanical devices in any other county, city, borough, incorporated town or township, under such regulations with reference thereto as the General Assembly may from time to time prescribe. The General Assembly may, from time to time, prescribe the number and duties of election officers in any political subdivision of the Commonwealth in which voting machines or other mechanical devices authorized by this section may be used.

(Nov. 5, 1901, P.L.881, J.R.1; Nov. 6, 1928, 1927 P.L.1050, J.R.13; May 16, 1967, P.L.1048, J.R.5)

Discussion of a constitutional right:

In Pennsylvania’s Constitution, Article VII, § 6. Election and registration laws, requires that the Legislature “permit the use of voting machines, or other mechanical devices for registering or recording and computing the vote, … at the option of the electors …“ This clearly provides Pennsylvania voters with a fundamental right to determine whether or not to use voting machines in their municipality. By listing various configuration alternatives and, in the language that follows, allowing their use “at the option of the electors,” it also establishes a constitutional right of the electorate to choose among possible configurations.

In practical terms, there are 3 basic ways in which electronic voting devices can be employed:

  • They can be used for the entire voting process in which the voter uses the apparatus to register their choices which are directly recorded electronically when a submit button is pushed and stored for computing a tabulation of the vote totals using an electronic device after the close of voting. These are called Direct Record Electronic (DRE) voting systems and have significant inherent cybersecurity vulnerabilities.

  • Alternatively, the voters can register their choices by marking them or causing them to be marked onto a paper form that can be scanned or processed to record their votes for later tabulation of the vote totals after the close of voting. The paper record can then be used for audit and recount purposes later should there be a close race or any reason to question the accuracy of a particular election.

  • A third possibility is for voters to register their selections using a device to mechanically mark a human readable paper record while at the same time electronically storing the voters’ selections for tabulation of vote totals at the close of voting, with the paper record, verified by the voter at the time of voting, being the ultimate record available for audits and recounts if necessary.

About the only way to interpret the constitutional provisions as not having provided a right to select among configurations would be to assume the word “registering” refers specifically to voter registration and not to the process of voters casting their votes. Were that the case, use of the word would have to have been a prescient mention, decades before the invention of the Internet, envisioning online voter registration a half century before it was implemented.

In any case, the General Assembly cleared up whether the electorate could designate an option within specified parameters by the Election Code allowing the electorate to authorize and direct the use of an electronic voting system.   This is in distinct contrast to the erroneous claims of those who would say the electorate can merely give its vague consent to its County Board of Elections, which can then at its sole discretion use any electronic voting apparatus that it wishes as it wishes.