[The new, court-ordered directive from Secretary Cortes has now been issued. It’s linked below, in the last update at the bottom of this article. – BF]
[Please note several important UPDATES added to the bottom of this article. – BF]
This just in from Pennsylvania… a federal court has found in favor of the NAACP and the 866-MYVOTE1 Election Reform Network, which were forced to sue the state’s Democratic Secretary of the Commonwealth, Pedro A. Cortes, after his recent directive that emergency paper ballots need to be given to the voters only in the event that all of a precinct’s touch-screen voting machines fail.
Most of PA uses 100% unverifiable touch-screen voting systems, and many of them broke down across the state during last April’s Primary Election, leaving untold numbers of voters unable to cast votes.
As we reported when the lawsuit was filed last week, state law allows county clerks to give out paper ballots if just one machine breaks down on Election Day; Cortes’ stunning decree, issued last month, went unchallenged by both the DNC and the Barack Obama campaign…
We heard the news of the court’s decision a few minutes ago from John Bonifaz of VoterAction.org, the election watchdog legal organization which represented the plaintiff coalition. In a statement just issued, Bonifaz said, “This is a huge victory for the voters of Pennsylvania.” He noted that “this ruling will ensure that many voters across Pennsylvania will not be disenfranchised when voting machines break down on Election Day.”
The lawsuit [PDF], filed last week, called for Emergency Paper Ballots to be issued in the event that a majority (50%) or more broke down. That, despite PA election law (3031..20: Section 1120-A), which allows for such ballots to be given out [emphasis added] “If any electronic voting system or any component thereof being used in any election shall become inoperable.”
Cortes’ directive had stated that [emphasis added again] “if all electronic voting machines in a precinct are inoperable…’emergency back-up paper ballots’ shall be distributed immediately to eligible voters.”
From today’s ruling [PDF], as posted at Rick Hasen’s Election Law Blog:
If 50% of electronic voting machines in a precinct are inoperable, “paper ballots, either printed or written and of any suitable form,” for registering votes (described herein as “emergency back-up paper ballots”) shall be distributed immediately to eligible voters pursuant to section 1120-A(b) of the Election Code. Emergency back-up paper ballots shall be used thereafter until the county board of elections is able to make the necessary repairs to the machine(s) or is able to place into operation a suitable substitute machine(s);
Even as it doesn’t go nearly far enough, today’s ruling should be very good news for Keystone Staters who saw voting machine breakdowns all across the state during their Primary Election last Spring, as we documented in some detail while they were being reported from local election watchdogs.
It should also be noted that the state GOP, at one point last week, had filed a motion to intervene in the case, to take the side of state Democrats in trying to limit the use of emergency paper ballots. We mention that just to give you an idea of how shameful the state Democrats’ directive was in the first place.
Finally, credit must be given to Mary Ann Gould, a PA election integrity advocate from the Coalition for Voting Integrity and host of Philadelphia’s “Voice of the Voters” radio program, for her tireless efforts in helping to bring Cortes’ disturbing decree to light. Her show is listener supported, and facing difficult times, so please consider dropping something in her tipjar over there to help keep her, and her important work, on the airwaves!
UPDATE 6:10pm PT Cortes has just issued a statement to say that he will not appeal the court’s decision. (See full statement at end of this article.)
While his statement says he will comply with the federal court order, it also notes [emphasis added]:
As we’ve already noted above, PA Election Code allows for counties to give out emergency paper ballots “If any electronic voting system or any component thereof being used in any election shall become inoperable.”
Does Cortes’ statement mean that county clerks no longer are allowed to decide for themselves, but can give out emergency paper ballots only if 50% or more of the machines break down, instead of just one, as allowed by PA code? If so, that’s quite disturbing.
No one answered the phone at the number given in the press release, but if we can learn anything, we’ll update again.
UPDATE 6:30pm PT: We were able to get in touch with VoterAction.org’s John Bonifaz to ask him about the troubling language in the statement, as noted above.
After we pointed it out, he too was concerned about it, while noting that the judge has ordered Cortes to issue a formal directive to change his previous directive that decreed emergency paper ballots must be given out if 100% of the voting machines break down in a precinct. That directive did not say only in the event of 100% malfunction can paper ballots be given out — even though, Bonifaz noted, some county clerks had interpreted it that way, as testified to during eight and half hours of hearings on the case yesterday.
The statute, in PA election code, allowing for EPBs to be given out after one machine breaks down, is a discretionary one. Clerks may give out paper in that event. Cortes’ original directive, Bonifaz suggests, was hopefully to have been an attempt at adding a mandatory directive to the discretionary statute (ie., “You must give out EPBs if all machines break down.”)
However, Bonifaz agreed that the language used in the press release — a direct quote from Cortes — which says that their office will “work with county officials across the state to ensure…emergency paper ballots only be used when 50 percent of the voting machines malfunction” is disturbing.
“If this is consciously an effort on behalf of the Secretary to rewrite the discretionary statute, he would effectively be in violation of the existing statute,” he told us. “It’s very problematic if that language ends up in the directive,” to be issued tomorrow by Cortes, he said.
“I’m concerned if the Secretary adds to a new directive the word ‘only’ as to when emergency paper ballots are to be distributed, because nothing in [today’s] court ruling allows for that,” Bonifaz says. “For the Secretary to move this in this direction, to effectively nullify the existing discretionary statute — his abilities as Sec. of the Commonwealth do not allow him to rewrite that statute.”
We will keep our eyes on the exact wording of the directive to be issued by Cortes tomorrow, and will update, of course, as we learn more. [Update: Cortes’ new directive has now been issued, see the update below the statement from his office yesterday which follows.]
The statement from the Cortes’ office, in response to the ruling today in federal district court, follows in full below…
COMMONWEALTH OF PENNSYLVANIA
Department of State
Commonwealth News Bureau
Room 308, Main Capitol Building
Harrisburg, PA 17120
CONTACT:
Leslie Amorà³s
Rebecca Halton
(717) 783-1621
Department Will Work with Counties to Prepare for Election Day
HARRISBURG – Secretary of the Commonwealth Pedro A. Cortés today issued the following response to a federal court’s granting of a preliminary injunction that will require polling places in Pennsylvania counties to provide emergency paper ballots if 50 percent or more of their machines malfunction. Cortés said the department will not appeal the decision.
“We have reviewed the court’s opinion and we will comply with its directive per their interpretation of the state election statute. The department will work with county officials across the state to ensure the uniform application of this decision-that emergency paper ballots only be used when 50 percent of the voting machines malfunction or fail-and that an adequate supply of emergency paper ballots is available.
“That said, we hope emergency paper ballots will not need to be used extensively on Election Day. Over the past four years, counties have put systems in place to remedy machine issues, including roving technicians and additional substitute voting machines.
“We share the plaintiffs’ goal of ensuring that no eligible voter leaves the polls on Election Day without voting due to excessively long lines. In order to try to reduce the potential wait at the polls, the department has worked with counties to implement procedures to improve the sign-in process. An efficient sign-in process, including the use of split poll books-that is an alphabetical listing of voters from A-M and N-Z-will help move voters through the process faster. In addition, voters who want to avoid long lines are encouraged to vote mid-day during off-peak hours.
“Conducting a successful election requires proper training and clear procedures, and with this goal in mind, the department will issue a revised directive instructing the counties on how they should use emergency paper ballots when 50 percent or more of the voting systems malfunction. The department will work closely with the counties to ensure that the emergency paper ballots are administered in a consistent manner statewide.”
UPDATE 10/30/08, 8:05pm PT: Cortes has now issue his new directive, which does not include language specifying that emergency paper ballots may “only be used when 50 percent of the voting machines malfunction or fail” as he did in the statement released by his office last night.
- Cortes’ new directive may be downloaded here [2 pages, PDF]…
Writes VoterAction.org’s John Bonifaz in response, in an email late tonight:
Long and short: PA county clerks may give out emergency paper ballots when just one machine breaks down, at their discretion, as per statute, and must give them out if 50% or more of the machines break down. That’s certainly better than what Cortes had indicated in his press release last night, and may be about the best we can get this year in PA. Unfortunately.
Well – one state that was in jeopardy now seems to be headed toward an honest vote.
People should tell the exit pollsters, whether from CNN, Edison-Mitofsky, ElectionIntegrity, or whoever, to track BY TYPE OF BALLOT CAST in all states. This applies with particular strength where voters have choice (as doesn’t appear to the be case in PA) on what type of ballot to vote, because the ballot pools (paper v. DRE or what have you) will likely be demographically different.
One consequence: Election night projections don’t necessarily hold because the later-counted ballots will be demographically different than earlier-counted ballots. It also means that one party, most likely the Republicans but it could be either party, will have a distorted lead based on polling place returns, but that situation will change as other returns come in….
Good to hear!
Hi Brad, I just heard your interview on Democracy Now and your instructions for people to try and take video of any voting machine problems. I am an election judge in Boulder CO and here at least cell phones are not permitted to be used within the no-electioneering 100′ limit–any suggestions on what people should do in these situations? Of course, here in Boulder most everyone votes by paper; each voting location only has one machine, and we’re trained to discourage people from using it!
Leia –
If your cell phone is in your pocket, and your vote flips in front of your face, it would be good to have video of that, as it would be a great service to the nation.
I’d never advocate breaking any laws (even if that rule about cell phones likely isn’t a law, but a rule), but where service to the nation is helpful, I hope folks will do the right thing.
In CA, it’s allowed, as long as one doesn’t violate someone elses privacy by shooting their ballot. And it was my cell phone video of my votes being flipped (4 out of 12 cast on my ballot) during last June’s state primary that allowed the Registrar to figure out what had gone wrong.
Transparency is very important. Hope those thoughts help.
It is sad when a judge’s decree that downgrades the previous condition as stated in state law is a victory for democracy.
This is truly Kafkaesque. What happens when citizens contact their reps about the voting machine issue? Do they say nothing? Do they all stonewall it as mealy-mouthed Howard Dean did?
There is Something Rotten In the United States
This smells so rotten, I can smell it here in Canada (where I just cast a hand-marked paper ballot for a local elextion).
Why Do DNC and GOP Alike So Desperately Want to Let the Sleeping Dog Rest?
Are some dirty rancid secrets festering in the lying dog — is that why they’re doing their utmost not to arouse it?
An ex-intelligence officer told me that, based on experiences in the field, that is the likely reason this issue is being stonewalled by the Democratic Party, Republican Party, and the Rovian fascist media in the United States.
Any rule against using your cell phone at a polling place has to be about the talking on it part. If you don’t talk on it, you’re not breaking the rule.
Brad
Your appearance on DN! was superb. You raised the value of that broadcast by a lot. Thank you.
Brad the Blogger’s ~ DN appearance is on YouTube .
Whatever the rules on video are in your state, I don’t see any evidence, in what I’ve seen, that there has been the slightest consideration of, much less respect for, the first amendment.
Don’t even get me started on the fact that voters, acting as such, are acting in their sovereign capacity and, subject only to that required for basic order compelled by the awareness of the equal rights of all concerned, can’t be ordered what around by the government like the rest of the year. Voting is when we step into the shoes of the King George of 1776 and select our servants, and if that’s too quaint, well, then we’re not a free people.
I agree! Don’t get Paul started! 😉
(But yes, I also agree with his point 🙂 )
There are two statutes that MUST be considered… together they make an important Case for emergency ballot process in PA which should be followed next Tuesday
First, as noted, we have a LEGAL statute that states emergency paper ballots MAY be issued if machines inoperable etc
Then add the duties of the Judges of Election… PA LAW states that JOE’s must “maintain order” at the polls (in/out) which includes line control.
In this election, we have in most counties too few DREs – calculated on overly optimistic and incorrect estimates of capacity. Worse, many counties used prior election turn-out in calculating need and did not take into account larger turn-out as well as new registrations.
Thus, if one machine goes down for a period of time or at a busy time, the likelihood of long lines forming and some citizens giving up is high.
In fact there were lines in the primary because of one machine down in a number of locations. What will next Tuesday be like?
Judges of Election must stand up to their sworn duty to maintain control … and to their right to request emergency paper ballots if ONE machine is down and it is impacting lines and causing voters to leave. Put law before a non-elected secretary of state directive – a directive does not rise to level of statute or law ..it is more of a guide.
SOS Cortes has repeatedly made decisions and issued directives which have harmed the voters of PA – including the infamous and misnamed “fleeing voter” which destroys votes if record button not pushed. Remember many Pennsylvanians are used to levers. They never had to push a vote record button plus it is easy to miss. Cortes directed that if voters leaves and doesn’t push record vote, their entries are to be destroyed. At least one county wisely ignored this directive and has a process to record while maintaining secrecy and security oversight.
No one should have the right to destroy a vote Mr. Cortes, not even at your direction!
Further, this hides machine problems for in over half the polls we’ve examined, the number of sign-in versus machine count do not match. Excuse…oh. that’s fleeing voter. No proof just opinion because of this ill advised directive. In one very carefully monitored poll in the primary, there were no “fleeing voters” yet the machine count was five under the sign-in number. Think 5 votes multiplied by all the polls in a township/county/state… That can swing many an election and that is just what wasn’t recorded…who knows results of programming and other factors impacting the machine figures?. Who knows? No one! Or do they???
Getting back to the above court decision, it is better than all down though best is to make LAW the guide … make it one down and emergency ballots if needed at that poll.
There are two statutes that MUST be considered…and together make an important case in PA which should be followed next Tuesday
First, as noted, we have a statute that states emergency paper ballots MAY be issued if machines inoperable etc
Then add the duties of the Judges of Election… PA law states that JOE’s must “maintain order” at the polls (in/out) which includes line control.
In this election, we have in most counties too few DREs – calculated on overly optimistic and incorrect estimates of capacity. Worse, many counties used prior election turn-out in calculating need and did not take into account larger turn-out as well as new registrations.
Thus, if one machine goes down for a period of time or at a busy time, the likelihood of long lines forming and some citizens giving up is high.
In fact there were lines in the primary because of one machine down in a number of locations. What will next Tuesday be like?
Judges of Election must stand up to their sworn duty to maintain control … and to their right to request emergency paper ballots if ONE machine is down and it is impacting lines and causing voters to leave. Put law before a non-elected secretary of state directive – a directive does not rise to level of statute or law ..it is more of a guide.
SOS Cortes has repeatedly made decisions and issued directives – including the infamous and misnamed “fleeing voter” which destroys votes if record button not pushed. Remember many Pennsylvanians are used to levers. They never had to push a vote record button plus it is easy to miss. Cortes directed that if voters leaves and doesn’t push record vote, their entries are to be destroyed. At least one county wisely ignored this directive and has a process to record while maintaining secrecy and security oversight.
No one should have the right to destroy a vote Mr. Cortes, not even at your direction!
Further, this hides machine problems for in over half the polls we’ve examined, the number of sign-in versus machine count do not match. Excuse…oh. that’s fleeing voter. No proof just opinion because of this ill advised directive. In one very carefully monitored poll in the primary, there were no “fleeing voters” yet the machine count was five under the sign-in number. Think 5 votes multiplied by all the polls in a township/county/state… That can swing many an election and that is just what wasn’t recorded…who knows results of programming and other factors impacting the machine figures?. Who knows? No one! Or do they???
Getting back to the above court decision, it is better than all down though best is to make LAW the guide … make it one down and emergency ballots if needed at that poll. When are we going to fight for what is really right? WHY DO WE SETTLE FOR LESS???
Write SOS Cortes and ask him why he choose to make it harder for people to vote? This is a very “political” person – supposedly wants to be first Hispanic governor..just elected prez of Assoc of Secretary of States and claims he wants vote protection a priority.
Someone needs to get hold of a copy of the software on these machines. Perhaps one can go “missing” or someone can copy the internals to a flash drive, card, or whatever.
I volunteer to inspect any code that someones sends me. Obviously, I cannot verify what machine it came from, but I can shout “fire” if it is obvious that something’s up.
We need to determine whether they are trying to steal the election or not. Fixing an election should be a capital offense.
— Jim
Brad,
You are inspirational. Excellent work on both The Al Jazeera English and Democracy Now shows.
I get discouraged, often, by how fucked up things are, occasionally by both candidates(although Obama’s TV thing tonight was rivetting and tears were streaming down my face), and by the lack of support/interest in election integrity from Democrats, Republicans, some of my friends, and the MSM. But then I regroup and I realize I’m trying to help with election integrity because it’s what I think the vital issue is. It’s what I(would be italicizing/underlining the word “I” here and in the preceding sentence if I knew how to)think the country really needs. Looks like I’m gonna get to help in NH with citizen exit polling. Thanks for the continuing inspiration, babe.
love,
David Lasagna
Wow, this is insane.
The impression is that Canadians are passive, but I’d be rioting if this was happening to my vote here in Canada.
America, please wake up. It’s your country … the longer you wait to act you may wake up and find out it’s not.
Great job Brad, I hope Americans everywhere flood every opportunity to complain and drive and demand change.
We love the U.S.A and want a stable neighbor, who is back in the position of a world class leader.
The citizens of the US are world class and need to be better represented internationally once again.
Fight for your rights, ensure your vote is counted.
Why do PA election officials HATE American election integrity so much?
Agree with Adam Fulford: It is sad when a judge’s decree that downgrades the previous condition as stated in state law is a victory for democracy.
This is truly Kafkaesque…”
How about uniformity in the law? There should be no necessity for so-called ’emergency’ paper ballots based on whether or not an electronic DRE breaks down.
The fact that even one county of 67 PA counties uses a wholly accessibility-compliant and precinct paper ballot system (Automark)and about 6 of 67 use a dual voting system, a mix of paper ballot with optical scanners and the electronic DREs, should be enough for all counties to be legally enabled to provide a choice to the voter of a paper ballot (with precinct scanners).
I’d argue the precinct scanners aren’t needed, the central scanners would be sufficient, but then the precinct paper ballot voter would not have the same opportunity to correct for errors which may disqualify or void the ballot.
It has been puzzling why the lawsuit did not demand such based on equality of voter access to a paper ballot voting system.
But now I’m wondering about the use of the paper ballots in precincts which will NOT have voter access to a precinct scanner.
As an election judge in a county which employed a dual system for the first time this last Primary, individuals using the paper ballots made errors and they were afforded the opportunity for replacement ballots.
However, that will obviously not be the case in counties which do not have the optical scanners at the precinct.
So an outcome of this ruling could be voters whose ballot may contain disqualifying errors, no equal opportunity to correct for those errors before casting the paper ballot, and the potential for abuse or even mistakes at a central location which scans the paper ballots.
This is potentially more of problem than could ever have been expected.
This is by the way also a problem with the absentee ballots which in PA must be paper ballots. The absentee voter who inadvertantly over-votes has no equal access to correct for errors.
In addition, with central scanners, the potential exists for stray marks to either be created (creases in paper) or to be read as over-votes. The ballot will then be in the domain of unelected election officials to determine the ‘intent’ of a voter outside the sight of the public.
At least with the provisional ballots, which also do not permit for precinct scanning, (even in precincts with paper ballot/precinct scanners), there is a formal review of voter status by elected officials, and before a final decision on that status is made by the Election Board, the provisional ballot voter has an opportunity to testify to one’s eligibility status.
By law, a provisional ballot voter is afforded an opportunity to check the status of the ballot by phone number call and/or site visit. A special code number is provided the provisional ballot voter.
No such provisions for the EPB voters.
An emergency paper ballot without the precinct scanner who may have a paper ballot disqualified at the central location has NO SUCH OPPORTUNITY for reddress and in fact may not ever know whether or not the ballot was voided for an over-vote!
The voter has of course, ultimate personal responsibility to check a paper ballot before sending it in to the election bureau or putting it into a ballot box at the precinct.
But it appears there is something gravely amiss.
I make these points in the interest of discussion, not discouragement.
Hopefully Mr. Bonifaz will address uniformity and how emergency paper ballots will be treated without precinct-based scanners.
50% is a ridiculously high number to allow to go bad before you feel compelled to use paper ballots. That means that out of say a million votes, 500,000 can be wrong before they’ll do anything.
36 states have early voting, why not in PA?
If voter turnout is really heavy on election day why not allow people to use paper ballots rather than stand in line for hours even if all the machines are working?
I read were some people GA had to wait up to 12 hrs to cast an early vote. Is that reasonable?
Thom Hartmann is talking about vote-flipping as I write, I just want to say thank you for all your hard work on this issue. I’m one of the few people who post your stories on Buzzflash, I do what I can, but I live in WA state so I don’t have to worry about this CRAP. I just can’t believe the Dems and Obama campaign aren’t doing jack-shit about this. I’m sick with worry about an “improbable” McCain victory next week, after all these years of you, Palast, RFK Jr, BBV, and others screaming FIRE! about our elections and the same problems still exist, it’s really heartbreaking and disturbing- I honestly feel like this election is our last, best chance to save our nation, if it gets stolen AGAIN the shit’s gonna hit the fan. Thanks again, you’re a REAL American hero. Aloha nui loa, bruddah
Luckily the judge applied common sense and cared more about the voters:
I know computers inside out and there’s no way in Hell I’d trust a proprietary system without independent auditing to elect scout leaders, much less the president.
Something Stinks!
That is incredible. Montgomery County’s Joseph A. Passarella and other election administrators are either morons or corrupt to the core. They insult the intelligence of poll workers to say that they wouldn’t be able to do something that a chi hua hua dog could conceivably be trained to do.
Brad, the country owes you and your contemporaries an American salute. Thanks man.
And while you fight to get your vote counted there robbing you blind…
Paulson’s Swindle Revealed
From the front lines of the GOP’s war against the constitution (a polling place in Sunrise Florida – 7:30 a.m.):
“Apparently people started showing up BEFORE 5:45. They just told us that it will be about an hour and a half from where I am now. They are out of sample ballots to pass out so apparently a lot of people are reading all this shit for the first time!
The guy behind me offered to let them copy & pass out his sample ballot that he brought with him. He said that it even already has all the right answers marked!
They have 15 machines here.”
Charlie Crist needs to be crucified for this. No sample ballots? WTF? 15 machines? WTF?
Billions handed out daily to banks, and this country can’t allocate the resources to enable the most important function of a Democracy? The word CONSPIRACY is the only word to use.
#26…Add fascism.
And now there’s this for me to deal with on election day as a judge of elections:
http://www.pittsburghlive.com/x.../s_595844.html
A private citizen casting a private vote is not allowed to document a problem they may have casting that vote. Hmmm…and whats the argument for keeping evms…”there’s no documented evidence of problems with the machines.” Same old catch 22 crap to drag feet and waste taxpayer money in court. I wonder if the dem governor, dem sos, or my dem election board ever read Bowen’s and Brunner’s reports? I know Marybeth from Vote PA has certainly made them all aware of it! Please consider a donation:
http://www.votepa.us/donate.html
Her testimony was key in this case!
#15 Scott,
Ohhhh, darlin’. Insane indeed. Also ugly & frightening & dangerous.
We (if I may speak for myself & 6 or 7 others) appreciate the fact that our Canadian friends care (and I mean that..no sarcasm intended!)..but honestly, when you say “demand change” & “fight for your rights”, please tell me… what, specifically, do you suggest we do?! Give me an actual suggestion!!!
Should we write our congressmen? Try & talk to our neighbors? Petition? Street protest? Letters to senators, editors, journalists? Write a book?..a song?..A play? Make a film? A documentary? Wave some signs? Sue?
‘We the People’ have done all of those. And we’ve been ignored, vilified, sometimes physically attacked. I thank the GODS for the courage & dedication of people like Brad, who continue the fight every damn day in the midst of this insanity!
So really Scott, no offense, hon..you got any suggestions? Short of torches & pitchforks? Truth be told, I’m about ready to do that whole Eminem ‘Mosh’ thing, but heh..I’m 5 foot 1 & 61, so I’ll probably be trampled. If you see me go down, please pick me up.
Honestly, I can’t help picturing a group of sleek, cigar-smoking old bastards sitting in a room somewhere—their fat asses ensconced in plush leather & their blood-soaked fingers encrusted with diamonds worth more than all our homes combined—just laughing their asses off.
Maybe that is too simplistic, too metaphoric a view…or maybe not. Maybe Mephistopheles really is a player in all this, who the hell knows!
I WAS going to post what seemed a hopeful headline from the UK’s Guardian…
“US election: Lawyers arrive in Florida for potential post-election fight”…
Yay!–I thought–They’re really going to defend democracy this time! (crows ludicrously still-naive Joan). Then I started reading…
“…So far, Lichtman said that there have been no serious problems, other than long queues…”
“The only issue is the long lines…”
Holy Fucking Mother Of Christ In A Straight-Jacket.
I wish all my brothers & sisters well. May we survive this with a country still intact. Those of you who pray, pray for Barack.