Direct-recording electronic voting systems (DREs) satisfy the certification requirements of the Pennsylvania Election Code and do not infringe on the fundamental right to vote, a unanimous Supreme Court panel ruled in Banfield v. Cortés, __ A.3d __ (No. 83 MAP 2013, filed February 17, 2015). The DREs at issue in this case display an electronic ballot on a screen and allow an individual to vote using a button, dial or touch screen. The DREs do not produce a contemporaneous paper record of an individual’s vote, but store each vote on internal memory.
Appellants in this case, 24 Pennsylvania voters, initiated an action against the Secretary of the Commonwealth challenging the certification of six DRE models for use in Pennsylvania and seeking declaratory, mandamus and injunctive relief. Following lengthy litigation, the Commonwealth Court granted summary relief in favor of the Secretary. On appeal to the Supreme Court, Appellants argued that the DRE systems violate the Election Code because (1) they do not “provide for a permanent physical record of each vote cast”; (2) they do not allow for a “statistical recount” because they cannot verify that votes were accurately captured; (3) they do not “preclude every person from tampering with the tabulating element”; (4) they do not allow the Secretary to ensure that the system “meets all of the requirements” of the Election Code because they do not test for known security vulnerabilities that make it possible to alter votes; and (5) they infringe upon Appellants’ fundamental right to vote and result in disparate treatment of voters.
Addressing Appellant’s arguments seriatim, Justice Stevens first held that because the certified DREs are able to print individual vote records at the close of an election, they can produce a “permanent physical record” of each vote cast. Second, the Court rejected Appellants’ claim that the legislature intended the word “recount” to require software-independent, voter-verifiable paper ballots and found that DREs are capable of performing a “statistical recount.” Addressing Appellants’ third and fourth issues together, the Court criticized their insistence on holding DREs to an impossible standard of invulnerability; the possibility of electoral fraud can never be eliminated regardless of the type of ballot. Noting that the adequacy of security measures against tampering is a subjective determination, the Court observed that the legislature delegated this discretionary decision to the Secretary, and Appellants did not allege that the Secretary’s certification of the DREs was arbitrary or done in bad faith. Finally, citing persuasive decisions of federal circuit courts, the Court held that DREs that register votes electronically without a voter-verified ballot do not severely restrict the right to vote. The Court also found no disparate treatment of any group of voters because Appellants presented no evidence to suggest that DREs are any less accurate than any other voting system.