[J-74-2014] IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFER Y , STEVENS, JJ.

MARK BANFIELD, SARAH BECK, JOAN BERGQUIST, ALAN BRAU, LUCIA DAILEY, PETER DEUTSCH, CONSTANCE FEWLASS, BARBARA GLASSMAN, MARIJO HIGHLAND, JANIS HOBBS-PELLECHIO, DEBORAH JOHNSON, 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, Appellants

v.

PEDRO CORTÉS, ACTING SECRETARY OF THE COMMONWEALTH, Appellee : : : : : : : : : : : : : : : : : : : : : : : : : : No. 83 MAP 2013 Appeal from the Notice of Judgment of Commonwealth Court entered at No. 442 MD 2006 entered October 15, 2013 in favor of Respondent and against petitioners on Counts I, II, III, IV, V, VI, VII, VIII, IX and X of the Petition for Review. ARGUED: September 10, 2014

OPINION

MR. JUSTICE STEVENS DECIDED: February 17, 201 5 In this appeal, we must determine whether the Commonw ealth Court erred in upholding the decision of the Secretary of the Commonw ealth to certify certain direct-[J-74-2014] - 2

recording electronic voting systems (DREs) for use in Pennsy lvania elections. 1 The Commonwealth Court found that the DREs satisfy the cer tification requirements set

forth in the Election Code 2 and do not infringe on the fundamental right to vo te as protected by the Pennsylvania Constitution. For the r easons that follow, we affirm the Commonwealth Court’s decision to grant the Secretary’s m otion for summary relief. I. Background Before we consider the specific facts of this case, it is necess ary to give a brief overview of our state law on voting system certificatio n. The Election Code, enacted in 1937, initially permitted voting with paper ballots or mechanical lever voting machines. 25 P.S. §§ 2961-71 (ballots); 25 P.S. §§ 3001-18 (vo ting machines). In 1980, the General Assembly amended the Election Code to allow t he use of electronic voting systems, which include optical scanners, punch card systems, an d DREs. 25 P.S. §§ 3031.1-3031.22 (electronic voting systems). Optical scanner s (akin to standardized testing methods) and punch card voting allows voters to mark selections on a paper ballot that is subsequently scanned and counted by an aut omatic tabulation device. In contrast, DREs display an electronic ballot on a screen and allow an individual to vote using a button, dial, or touch screen. The DREs at issue do not produce a contemporaneous paper record of an individual’s vote, but store each vote on internal

1 In commencing this litigation, Appellants challenged th e discretion of Secretary Pedro A. Cortés, who initially certified the DREs at issue. Secretary Carol Aichele was substituted as a defendant once she began serving as head of the State Department in April 2011. Secretary Cortés was reappointed to this ca binet position in January 2015 by Governor Tom Wolf. We refer to both individuals collectively as “the Secretary.”

2 See Act of June 3, 1937, Pub.L. 1333, § 1, as amended , 25 P.S. §§ 2600, et seq

. Although Appellants refer to the relevant sections of t he Election Code along with their corresponding citation in Title 25, this opinion refers the statutory provisions only by the section numbers as listed in Title 25 for the sake of simp licity and brevity.[J-74-2014] - 3

memory. However, all of the DREs at issue are capable of printing the vote data at the close of the election; some DREs print on full sheets of paper while others print on thermal paper, which is commonly used for printing recei pts. In addition, electronic vote data can be removed from the DRE on external memory devices, such as flash drives and memory cards, and connected to a different electroni c system to tally the votes. In October 2002, Congress enacted the Help America Vote Act (“HAVA,” Pub. L 107-252, formerly 42 U.S.C. § 15301, et seq., transf erred to 52 U.S.C. § 20901, et seq.) to reform the nation’s voting process in response to the issues that arose in the 2000 presidential election. See generally Bush v. Gore , 531 U.S. 98 (2000). One of HAVA’s main purposes was to authorize funding for the replacem ent of lever and punch card voting machines with other systems that are HAVA complian t. 3 Although the Secretary urged counties to obtain electronic voting systems, each cou nty retained discretion on whether to replace their voting systems, provided that the chosen system met federal and state requirements. Commonwealth of Pennsylvania State Plan as required by HAVA (Sept. 15, 2005). One such requirement in the Election Code is that an electronic voting system must be subject to a certification process before it is deemed authorized for use in an election. The Secretary has the duty “[t]o examine and reexamine voting machines, and to approve or disappro ve them for use in this state, in accordance with the provisions of [the Election Code].” 25 P.S. § 2621(b). A county board of elections may choose among the certified electro nic voting systems and independently procure such system for use in its districts. 25 P.S. § 3031.4. The board

3 Although neither HAVA nor the Election Code expressly prohibit the use of any voting system, the Secretary found that lever machines do not co mply with HAVA, which requires voting systems to “produce a permanent paper record with a manual audit capacity.” 52 U.S.C. § 21081(a)(2)(B); Kuznik v. Westm oreland Cnty. Bd. of Comm'rs, 588 Pa. 95, 108, 902 A.2d 476, 483 (2006).[J-74-2014] - 4

of elections then appoints custodians to prepare the voti ng system for use. 25 P.S. §

3031.10. Appellants, twenty-four Pennsylvania voters, filed thi s action in 2006 in the Commonwealth Court’s original jurisdiction to challenge the certification of the six DRE models in use in Pennsylvania. 4 Seeking declaratory, mandamus, and injunctive relief , Appellants claimed the Secretary should be ordered to d ecertify the DREs which do not comply with the Election Code and compelled to adopt m ore rigorous testing standards. In Count I, Appellants claimed the DREs do not meet th e Election Code’s definition of an electronic voting system as they cannot produce a “pe rmanent physical record of each vote cast.” 25 P.S. § 3031.1. In Count II, App ellants contended the DREs do not “preclude every person from tampering with the tabula ting element.” 25 P.S. §§ 3031.7(16)(iii), (17)(i). In Counts III and VII, A ppellants asserted the Secretary failed to adopt adequate procedures to test the DREs’ reliabili ty, accuracy, and security. In Count IV, Appellants alleged the DREs do not allow of ficials to conduct a “statistical recount of a random sample of ballotsPusing manual, mec hanical or electronic devices of a type different than those used for the specific el ection.” 25 P.S. § 3031.17. In Count V, Appellants claimed voting officials cannot perf orm full recounts on DRE results. See 25 P.S. § 3154(e) (recount to assess discrepan cy in election results), § 3261 (recount upon the voters’ request). In Count VI, Appellants challenged the Secretary’s denial of the voters’ requests for reexamin ation of the DREs. See 25 P.S.

4 The following DREs are certified for use: the AVC Ed ge II and AVC Advantage (made by Sequoia Voting Systems, Inc.), the iVotronic (Electi ons Systems & Software, Inc.), the eSlate (Hart InterCivic, Inc.), the ELECTronic 1242 (Danaher Industrial Controls), and the AccuVote TSX (Diebold Elections Systems). Upon A ppellants’ challenge, the Secretary decertified the WinVote (Advanced Voting Syst ems).[J-74-2014] - 5

3031.5. In Counts VIII, IX, and X, Appellants claime d the DREs’ certification interferes with their suffrage rights under various provisions of t he Pennsylvania Constitution. 5 The Secretary filed preliminary objections to the Pet ition for Review. The Commonwealth Court overruled these objections in a pub lished opinion

. Banfield v. Cortes, 922 A.2d 36 (Pa. Cmwlth. 2007) (en banc) (“Ba nfield I”). In the discovery phase of trial, the parties obtained reports and deposition testimony from expert witnesses who reviewed the Secretary’s examination reports. Appella nts retained two experts, Dr. Douglas Jones, Ph.D., and Dr. Daniel Lopresti, Ph.D., w ho contended that the certified DREs do not meet several requirements of the Election Code and the Secretary’s certification process is inadequate to determine whether electronic voting systems meet accuracy, security and reliability requirements. In addi tion, Appellants relied on studies conducted by other states that reveal security vulnerabil ities in the DREs at issue. The Secretary’s expert, Dr. Michael I. Shamos, Ph.D., J.D., opined that both the DREs and the Secretary’s certification process conform to the Electi on Code and the Secretary acted within his discretion in certifying the DREs at issu e for use in Pennsylvania. In August 2011, Appellants filed a motion for partial summary judgment as to Counts I, IV, VI, IX, and X, arguing they were entit led to judgment as a matter of law on claims in which the parties did not dispute the relevan t technical attributes of the DREs alleged to violate the Election Code. The Secretary filed a motion for summary relief, seeking the dismissal of Appellants’ action in its entirety as Appellants did not demonstrate the DREs should be decertified and improper ly sought mandamus relief.

5 Pa. Const. art. I, § 5 (“[e]lections shall be free and equal; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage”); Pa. Const. art. I, § 26 (“[n]either the Commonwealth nor any political subdivision thereof shall deny to any person the enjoyment of any civil ri ght, nor discriminate against any person in the exercise of any civil right”); Pa. Const. art. VII, § 6 (“[a]ll laws regulating the holding of elections by the citizens P shall be unif orm throughout the stateP”).[J-74-2014] - 6

The Commonwealth Court scheduled en banc argument on A ppellants’ motion and directed that all other matters, including the Secretar y’s motion, be held in abeyance. On August 29, 2012, the Commonwealth Court denied Ap pellants’ motion for partial summary judgment in a published, en banc opini on. Banfield v. Aichele, 51 A.3d 300, 302 (Pa. Cmwlth. 2012) (en banc) (“Banfield II” ). The Commonwealth Court first rejected Appellants’ multi-faceted claim in Count I th at the DREs do not satisfy the Election Code’s definition of an electronic voting syst em as they cannot “provide for a permanent physical record of each vote cast.” 25 P.S. § 3031.1. While Appellants contended this provision requires a DRE to produce a con temporaneous paper record at the time a vote is cast, the Commonwealth Court const rued the phrase “provide for a permanent physical record” to refer to the DREs’ abilit y to generate such a record upon demand. Thus, the Commonwealth Court found that all the DREs at issue meet this requirement as they can print a permanent physical recor d when specifically requested. Rejecting Appellants’ claim that vote records must be i mmune from intentional or unintentional alteration to be “permanent,” the Com monwealth Court emphasized that “any record, whether paper or electronic, is subject to d estruction, loss, tampering or wear.” Banfield II, 51 A.3d at 307. However, the Commonwealth Court reasoned that a “permanent record” must remain intact for at least the minimum periods set by law for the purposes of recounts, recanvassing, and litigation: 20 days for state contests 6 and

22 months for federal elections. 7 Noting Appellants did not challenge the permanency of DRE records printed on full sheets of paper, the Co mmonwealth Court majority found

6 See 25 P.S. § 3070 (providing that voting machines b e locked for twenty days following each election and as longer as necessary due to a vote contest).

7 See 52 U.S.C. § 20701 (requiring federal election o fficers to retain and preserve for twenty-two months all records and papers related to th e vote in a federal election).[J-74-2014] - 7

that the testimony of Appellants’ experts, who claimed that records printed on thermal paper are fragile and prone to fading, “was too vagu e and non-specific to declare as a matter of law that vote records [the DREs print] on th ermal paper are not permanent.” Id. at 309. The majority criticized Appellants for failing to identify which specific DREs use thermal paper and emphasized Appellants had not cha llenged Dr. Shamos’s opinion that the legibility of thermal paper will ex ceed the twenty-two month federal ballot retention requirement if kept from direct ex posure to heat. Moreover, the majority found the DREs’ electronic data are also sufficiently pe rmanent, but did not resolve the

issue of whether such data constitutes a physical record as the parties did not dispute that every DRE at issue is capable of providing printed records. In addition, the Commonwealth Court majority did not accept Appellants’ claim that the DREs fail to produce a “record of each vote cast.” As the DREs’ vote recording process is software-dependent, Appellees claim there is no way to verify a DRE accurately recorded a voter’s selections if the software is corrupted or flawed. Although it recognized the validity of this concern, the Common wealth Court majority found Appellants’ assertion that the Election Code requires software-independent voting to be inconsistent with the 1980 amendments authorizing the u se of voting systems that only register votes electronically. While Appellants may rig htfully question the vulnerability of DREs to tampering, the Commonwealth Court majority r easoned that the Secretary’s certification and approval process is a proper safeguard a gainst such security concerns. Second, the Commonwealth Court concluded that Appell ants were not entitled to summary judgment on Count IV in which Appellants alleg ed that the DREs cannot “conduct a statistical recountP using manual, mechanical or electronic devices of a type different than those used for the specific election .” 25 P.S. §§ 3031.17. Reasoning that this provision merely requires that a sample of ba llots be counted, not produced, by[J-74-2014] - 8

another device, the Commonwealth Court found a statist ical recount can be performed on a DRE that is capable of printing records that can be counted manually. The Commonwealth Court also discounted Appellants’ claim tha t the statistical recount provision requires an audit to assess whether the DRE cap tured correct voter intent. Instead, the Commonwealth Court reasoned that this pro vision requires a simple retally of a statistical sample of the votes. The Commonwealth Court reiterated that the Election Code does not require software-independent v ote records as several provisions authorize systems which only register votes elect ronically and differentiate between electronic voting systems that use paper ballots and those that do not use paper ballots. See 25 P.S. § 3154(e)(4) (providing for the recanvassing of votes for districts using electronic voting systems without paper ball ots); 25 P.S. § 3262 (same). In a footnote, the Commonwealth Court criticized Ap pellants’ reliance on another provision which allows voters to demand a full recount in the event of fraud or error. 25 P.S. § 3261. The Commonwealth Court noted that 25 P.S. § 3031(18) clarifies that the recount procedure in Section 3261 is reserved for electro nic systems utilizing paper ballots and provides that other types of electronic system s shall be assessed under Section 3262 (allowing officials to recanvass voting machi nes by examining the registering counter without unlocking the machine against voting). As a result, the Commonwealth Court declined to enter judgment for Ap pellants on Count IV. Third, the Commonwealth Court declined to issue a wr it of mandamus to order the Secretary to comply with Appellants’ request in Coun t VI for the reexamination of previously certified electronic voting systems. See 25 P .S. § 3031.5. Acknowledging the Election Code requires the Secretary to reexamine such voting systems upon the proper request of ten or more qualified registered el ectors, the Commonwealth Court noted the Secretary had conceded that such examination s would be appropriate.[J-74-2014] - 9

Unaware of whether such examinations had taken place, th e Commonwealth Court ordered the parties to file a report on the status of the reexaminations. Lastly, the Commonwealth Court dismissed Appellants’ claim that Secretary’s

certification of the DREs resulted in constitutional viol ations of their fundamental right to vote. As Appellants had not shown that the Secretary’ s certification was illegal, the Commonwealth Court found Appellants were not entitle d to judgment as a matter of law on Counts IX and X. For the foregoing reasons, the Co mmonwealth Court denied Appellants’ motion for partial summary judgment. Judge McCullough filed a concurring and dissenting op inion, which was joined by Judge Pellegrini. Although Judge McCullough agreed wi th the Majority’s resolution of Counts IV, VI, IX, and X, she asserted Appellants should have been granted summary judgment on Count I as the DREs do not “provide for a permanent physical record of each vote cast.” Judge McCullough rejected the Majority’ s finding that electronic data can be considered “permanent,” arguing that such data is vulnerable to alteration undetectable to a human observer. Judge McCullough also argued that electronic data

does not constitute a physical record of each vote cast. In addition, Judge McCulloug h also questioned whether records printed on thermal pape r are sufficiently “permanent,” crediting the testimony of Appellants’ expert who claim ed thermal paper can become unreadable in a matter of weeks if not stored properl y. Thus, Judge McCullough concluded Appellees were entitled to judgment as a matt er of law on Count I. On January 29, 2013, the Commonwealth Court issued a si ngle-judge order by Judge Leadbetter, finding Count VI to be moot after the Secretary performed the requested DRE reexaminations and dismissing Count I (pe rmanent physical record of each vote cast) and Counts IV and V (statistical recount) b ased on the reasons set forth in the Commonwealth Court’s August 29, 2012 en banc op inion (Banfield II).[J-74-2014] - 10

On October 1, 2013, in a single-judge memorandum auth ored by Judge Leadbetter, the Commonwealth Court granted the Secre tary’s motion for summary relief on Appellants’ remaining counts and entered judgment i n favor of the Secretary. Banfield v. Aichele, 442 M.D. 2006 (Pa. Cmwlth. Oct. 1, 2013) (“Banfield III”). The Commonwealth Court dismissed Counts II, III, and VII in which Appellants claimed 1) the DREs do not have adequate security and 2) the Secre tary’s certification process was inadequate to assess DRE security. Reviewing Appella nts’ request for mandamus relief directing the Secretary to decertify the DREs a nd to establish more stringent testing standards, the Commonwealth Court emphasized th at mandamus is limited to circumstances where the plaintiff has a clear legal right to compel a public official to perform a mandatory duty. Maxwell v. Bd. of Sch. Dir ectors of Sch. Dist. of Farrell, 381 Pa. 561, 566, 112 A.2d 192, 195 (1955). Viewing Ap pellants’ request as a demand for improper oversight of the Secretary’s discretion, the C ommonwealth Court found Appellants failed to establish the DREs fell short of the statutory requirements at issue as there is no evidence the DREs fail to accurately reco rd votes. The Commonwealth Court concluded that “[s]ince voting systems will always b e vulnerable to fraud, the mere possibility of a security breach is not alone sufficie nt to warrant overriding the Secretary’s determination to certify the systems.” Banfi eld III, 442 M.D. 2006, at *8. Furthermore, the Commonwealth Court concluded that th e Secretary was entitled to summary relief on Counts VIII, IX, and X with respe ct to Appellants’ constitutional challenges to the certification of the DREs. Although A ppellants claimed the DREs are unable to accurately record votes and thus, interfere wi th the fundamental right to vote of those individuals forced to use the DREs, the Commonw ealth Court found that Appellants had no foundation for such arguments which ar e based on the faulty premise

that the DREs at issue are so inaccurate and insecure as to deny them the right to vote.[J-74-2014] - 11

Accordingly, the Commonwealth Court granted the Secr etary’s motion for summary relief. On October 15, 2013, the Commonwealt h Court entered judgment in favor of the Secretary and against Appellants on all cou nts of the Petition for Review. Appellants present the following five issues for our rev iew:

1. Does an [electronic voting system] “provide for a permanent physical record of each vote cast” as required by Section 1101-A [25 P.S. § 3031.1] if it only stores electronic data as votes are cast and only prints that electronic data (if ever) after an election has en ded? 2. Does an electronic voting system P allow for a “stati stical recount” as required by Section 1117-A [25 P.S. § 3031 .17] if it cannot verify that votes were accurately captured? 3. Does an [electronic voting system] “preclude every p erson from tampering with the tabulating element” as required b y Section 1107-A [25 P.S. §§ 3031.7(16)(iii), (17)(i)] if it has known secur ity vulnerabilities that make it possible to alter votes? 4. Does an examination allow the Secretary to ensure that an [electronic voting system] “meets all of the requirement s” of the Election Code as required by Section 1105-A if it does not test for known security vulnerabilities that make it possible to alter votes? 5. Is the certification of an [electronic voting system] n arrowly tailored to achieve a compelling state interest if, un like other available EVSs, the EVS cannot verify that votes were accurately ca ptured? Appellants’ Brief, at 4 (reordered for review).

II. Discussion “An application for summary relief may be granted i f a party's right to judgment is clear and no material issues of fact are in dispute.” Ju belirer v. Rendell, 598 Pa. 16, 28, 953 A.2d 514, 521 (2008) (citations omitted). 8

8 Pennsylvania Rule of Appellate Procedure 1532(b), wh ich governs motions for summary relief, provides: “[a]t any time after the fi ling of a petition for review in an appellate or original jurisdiction matter the court m ay on application enter judgment if the right of the applicant thereto is clear. Pa.R.A.P . 1532(b).[J-74-2014] - 12

[I]n evaluating the Commonwealth Court’s decision to grant summary relief, we examine whether there is any genuine issue of material fact and whether the moving party is entitled to relief as a matter of law. In doing so, we must view the record in the light most favorabl e to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Murphy v. Duquesne Univ. , 565 Pa. 571, 777 A.2d 418, 429 (2001)). Where ther e is no dispute as to any material issues of fact, we must determine whether t he lower court committed an error of law in granting summary relief. Capek v. Devito , 564 Pa. 267, 767 A.2d 1047, 1048, n. 1 (2001). As with all questions of law, our scope of review is plenary. Pennsylvania Med. Soc. v. Dep't of Pub. Welfare of Co mmonwealth, 614 Pa. 574, 589, 39 A.3d 267, 276-77 (2012). A. Permanent Physical Record of Each Vote Cast (25 P.S. § 3031.1) Appellants argue the Commonwealth Court erred in gra nting Secretary summary

relief on Count I as the DREs violate the Election Cod e by failing to provide for a permanent physical record of each vote cast. In the def initional section of the 1980 Election Code amendments permitting electronic voting, the Legislature defined an “electronic voting system” as “a system in which one or mo re voting devices are used to permit the registering or recording of votes and in w hich such votes are computed and tabulated by automatic tabulating equipment. The syst em shall provide for a permanent physical record of each vote cast.” 25 P.S. § 3031.1 (e mphasis added). Appellants begin by emphasizing their belief that ele ctronic data are not “physical” records as such data is composed of subatomic parti cles that are not perceptible through the senses. Appellants also claim ele ctronic data cannot be considered “permanent” as such records are in an alterable state until the polls close at the end of the election. Lastly, Appellants challenge the Commonwealth Court’s finding

that electronic data constitute a “record of each vote ca st” as the DREs’ recording process is dependent on software which may be flawed or co rrupted; thus, Appellants allege that one cannot be certain if the electronic dat a reflects voter intent.[J-74-2014] - 13

Although Appellants concede that the DREs can print recor ds on paper that are “physical” and “arguably permanent,” 9 Appellants claim the Commonwealth Court erred in finding the DREs’ printing capability allow them t o “provide for a record of each vote cast.” Appellants claim the plain meaning of the requi rement that the DREs “provide for” a permanent physical record should be interpreted to require a DRE to provide a contemporaneous printed record at the time the vote is cast so that voters can verify the DRE accurately recorded their votes. Appellants argue t hat the records printed at the end of the election are not meaningful records, as th ey merely report electronic data that may have been altered without detection. If th is Court finds the phrase “provide for a record of each vote cast” to be ambiguous, Appellants cl aim that their interpretation is supported by the statute’s legislative history in which t hey allege the members of the General Assembly expressed a distrust of computers and int ended this requirement to operate as a safeguard to provide a recountable reco rd of votes. In response, the Secretary contends that the DREs’ electr onic records constitute permanent physical records. Although not definitively decided by the Commonwealth Court, the Secretary claims the DREs’ electronic records ar e “physical” as they can be preserved for later use on removable memory cards and can remain intact for many years. With respect to the electronic records’ permanency , the Secretary supports the Commonwealth Court’s assessment that this requirement sig nifies that vote records

need not last forever but must be retained for a suffi cient period of time to permit recounts, recanvassing, and litigation. Moreover, the Secretary rejects Appellants’ suggestion that vote records must be software-independent as the General Assembly specifically authorized the use of voting systems that onl y record votes electronically.

9 In Footnote 44 of their brief, Appellants assert the re is a genuine issue of disputed fact as to whether DRE vote records printed on thermal pape r constitute “permanent” records, but do not develop any analysis to support this point.[J-74-2014] - 14

The Secretary also agrees with the Commonwealth Court’ s finding that the DREs’ printed records constitute permanent physical records of each vote cast. As the Code requires that an electronic voting system “provide for” such records, the Secretary finds this provision encompasses a DRE’s ability to genera te records on demand, defining the phrase “provide for” as “to make it possibl e for something to be done.” Secretary’s Brief, at 17 (citing Oxford Advanced Learne rs Dictionary). Although Appellants argue the printed records are simply copies of flawed electronic data, the Secretary contends this indirect attack fails for the same r easons as their direct attack on electronic data as the Legislature specifically author ized devices that only record votes electronically. If this Court finds the permanent physical record requirement ambiguous, the Secretary urges this court to give weight to her interpretation as the governmental officer charged with applying the Electio n Code’s provisions. See 1 Pa.C.S. § 1921(c)(8). In addition, the Secretary ur ges this Court to consider the consequences of adopting Appellants’ interpretation of t he language in question to decertify the DREs in use and leave a majority of the co unties in the Commonwealth without a voting system. While Appellants suggest tha t counties should replace DREs with optical-scan systems in which a paper ballot is counted by an electronic device, the Secretary argues that such a “solution” would pose the sam e issues as use of the DREs and may not be economically feasible. This challenge requires this Court to engage in statuto ry interpretation of the Election Code, which, as a question of law, is subject to a de novo standard of review and a plenary scope of review. Sch. Dist. of Philadelp hia v. Dep't of Educ., ---Pa.---, 92 A.3d 746, 751 (2014). This Court’s role in statutory interpretation is to ascertain and effectuate the intent of the Legislature, giving effe ct to all provisions of the statute under review, if possible. 1 Pa.C.S. § 1921(a). The best i ndication of legislative intent is the[J-74-2014] - 15

plain language of the statute. Bowling v. Office of Open Records, 621 Pa. 133, 156, 75 A.3d 453, 466 (2013). The plain language of each se ction of a statute must be read in conjunction with one another, construed with reference to the entire statute. Id. When

the words of a statute are clear and free from all amb iguity, the letter of the statute is not to be disregarded under the pretext of pursuing its spi rit. 1 Pa.C.S. § 1921(b). Accordingly, only when the words of a statute are ambigu ous should a reviewing court seek to ascertain the intent of the General Assembly thro ugh consideration of the various factors found in Section 1921(c). Id

. at § 1921(c). Keeping these principles in mind, we turn to our task of interpreting Section

3031.1’s definition which states that an electronic votin g system “shall provide for a permanent physical record of each vote cast.” Although Appellants offer different reasons why the DREs at issue cannot meet this definition , each of their arguments is grounded in their belief that the Election Code requ ires an electronic voting system to produce a software-independent, voter-verified paper record at the time each vote is cast. However, while Appellants attempt to read this r equirement into Section 3031.1, the plain language of the statute provides otherwise. Appellants cannot point to any provision in the Electio n Code requiring an electronic voting system to print a paper ballot for e ach individual voter to view. On the contrary, the plain language of Section 3031.1 states t hat an electronic voting system

shall “ provide for

a permanent physical record.” 25 P.S. § 3031.1 (emph asis added). While the Oxford Dictionary defines the word “provide ” as “to make available for use or supply,” it separately defines the phrase “provide for ” as “to make adequate preparation for (a possible event).” Oxford Dictionaries, http://w ww.oxforddictionaries.com/ us/definition/american_english/provide#provide__13. A s the addition of the preposition “for” brings an anticipatory meaning to the phrase, we agree with the Commonwealth[J-74-2014] - 16

Court that Appellants’ interpretation of the permane nt physical record provision to be a contemporaneous requirement would render the word “fo r” to be mere surplusage. See Commonwealth v. Lobiondo, 501 Pa. 599, 603, 462 A.2 d 662, 664 (1983) (presuming that “every word, sentence or provision of a statute is intended for some purpose and accordingly must be given effect”). Thus, the Legislatur e’s selection of the phrase “provide for” is consistent with the Commonwealth Court ’s interpretation requiring DREs to have the “ability to generate or supply the requ ired records on demand.” Moreover, other Election Code provisions show the Legisl ature contemplated and authorized electronic voting systems that would regi ster votes during an election without paper ballots. Section 3031.1 broadly defin es “ballot” as “ ballot cards or paper ballots upon which a voter registers or records his vote or the apparatus by which the voter registers his vote electronicallyP.” 25 P.S. § 3031.1 (emphasis added). Similarly, Section 3031.1 defines “voting device” as “either an app aratus in which paper ballots or ballot cards are used in connection with an implement by which a voter registers his votes with ink or other substance or by punching, or an apparatus by which such votes are registered electronicallyP.” Id. (emphasis added). In addition, as discussed more fully in the next issue, the Legislature set forth diff erent full recount procedures for electronic voting systems that operate with or without paper ballots. If we were to accept Appellants’ contention that the Legislature inten ded that electronic systems must provide voter-verified ballots, this interpretation w ould render meaningless provisions in which the Legislature specifically discussed voting systems t hat do not use paper ballots to register votes, leading to an absurd result. We presume the General Assembly does not intend a result that is absurd or unre asonable, but intends for the

entire statute to be effective and certain. 1 Pa.C.S. § 1922.[J-74-2014] - 17

Appellants argue that the DREs’ printed records are me re copies of electronic data that may have been altered without detection an d suggest counties should purchase optical scanners or DREs equipped with new VVPA T (Voter-Verified Paper Audit Trail) technology. Even though Appellants have raised a valid concern about DRE security, this assertion does not affect our finding that the Legislature clearly authorized electronic voting systems that do not utilize paper ball ots. While VVPAT technology may offer additional security against election fraud, A ppellants should direct their claims to the Legislature, which is better suited to investigat e the advantages and disadvantages of VVPAT DREs and examine policy considerat ions that would arise from requiring voter-verified paper ballots. Altho ugh Appellants laud paper records as a panacea to voting fraud, even paper ballots are no t a completely secure system without risk as there are many opportunities for tamper ing to occur from the time a voter

casts his or her ballot until the time a winner is declar ed. Appellants also seem to assume there would be no practical problems in attemptin g to implement a contemporaneous paper record requirement while preservi ng voter privacy and election security. 10 As the certified DREs are able to print individual v ote records at the close of an election, the DREs produce a permanent physical record of each vote cast as contemplated by Section 3031.1. 11 Thus, the Commonwealth Court correctly granted the Secretary summary relief on Count I of Appellants’ Petition for Review.

10 Moreover, the Secretary has also expressed concern that D REs with VVPAT technology may violate the ballot secrecy requirement i n the Pennsylvania Constitution by recording individual votes on a continuous roll of p aper which may allow officials to ascertain a voter’s identity. See Pa. Const. art. VII, § 4 (providing that “[a]ll elections by the citizens shall be by ballot or by such other method as may be prescribed by law: Provided, That secrecy in voting be preserved”).

11 While Appellants disputed in the lower court whether thermal paper records are sufficiently permanent, Appellants limited their argum ent to a three-sentence footnote (continuedP)[J-74-2014] - 18 B. Statistical Recount Requirement (25 P.S. § 3031 .17) In their second challenge, Appellants claim the technical attributes of the DREs make them incapable of allowing election officials to co nduct a statistical recount of election returns pursuant to Section 3031.17, which pro vides as follows:

The county board of elections, as part of the computatio n and canvass of returns, shall conduct a statistical recount of a random sam ple of ballots after each election using manual, mechanical or electro nic devices of a type different than those used for the specific election. The sample shall include at least two (2) per centum of the votes cast or two thousand (2,000) votes whichever is the lesser. 25 P.S. § 3031.17 (emphasis added). Although the Commonwealth Court specifically found the DREs at issue can be subject to a statistical recount by printing vote records t hat can be counted manually at the close of the election, Appellants emphasize the DR Es do not produce a record from which officials could determine if the DRE correctly recor ded a voter’s selection. Suggesting the Commonwealth Court incorrectly defined the term “recount,” Appellants distinguish between the terms “recanvass” and “recount,” cl aiming that a recanvass only checks whether the votes were correctly counted whereas a rec ount assesses whether votes were correctly captured in the first place. Appel lants argue the legislative history of the 1980 amendments authorizing electronic voting sy stems shows a recount must

(Pcontinued) on appeal. Appellants’ Brief at 32, n. 44. Appell ants have not meaningfully challenged the opinion of the Secretary’s expert, Dr. Shamos, who emphasized that the permanency of thermal paper can far exceed the both t he twenty-day state ballot retention requirement and the twenty-two month fede ral ballot retention requirement if kept from direct heat. “Where an appellate brief fail s to provide any discussion of a claim with citation to relevant authority or fails to develop the issue in any other meaningful fashion capable of review, that claim is wa ived. It is not the obligation of an appellate court to formulate [an] appellant’s argumen ts for him.” Wirth v. Commonwealth, ---Pa.---, 95 A.3d 822, 837 (2014).[J-74-2014] - 19

verify voter intent as some legislators refused to suppo rt the amendments unless they

contained a statistical recount to detect and deter fraud

. Even assuming that votes recorded by a DRE can be recount ed, Appellants claim the DREs prevent officials from conducting a statisti cal recount by “devices of a type different than those used in the election” as a D RE prints software-dependent vote records. In contrast, Appellants argue that optical scan systems and VVPAT DREs meet this requirement as they retain an original vote r-verified paper record which can be counted by another electronic device or by hand. Appel lants again take issue with the Commonwealth Court’s finding that the Election Code d oes not require softwareindependent vote records, accusing the Commonwealth Cour t of implicitly repealing the statistical recount requirement for electronic voting syst ems in Section 3031.17. As portions of the 2004 amendments pertaining to full re counts provide that electronic voting systems utilizing paper ballots must be subject to a full recount and any other type of electronic voting system be subject to a recanvass ( 25 P.S. § 3031.18, § 3154(e)), Appellants suggest that this distinction shows that electronic voting systems are incapable of performing any recount, including a st atistical recount. In response, the Secretary supports the Commonwealth Co urt’s finding that the DREs can conduct a statistical recount using a “device of a d ifferent type” as required by Section 3031.17 as a DRE’s printed records can be count ed manually or in the alternative, a DRE’s electronic records can be transferr ed on external media devices to be recounted on another electronic device using differen t software. The Secretary distinguishes the statistical recount provision from full r ecounts required by other Election Code provisions, claiming that while a statistica l recount is automatically conducted on a small random sample of ballots at the close of every election, full recounts are only performed in the event of discrepancy in the voting results or a[J-74-2014] - 20

request by voters to ensure against fraud or error. Th e Secretary claims the purpose of the statistical recount is different; a “‘statistical recou nt’ seeks merely to determine whether the original tabulation was performed correctl yP [and] is not designed to be a

forensic examination into whether a voter’s intent was properly recorded by the machine.” Secretary’s Brief, at 29. Moreover, the Se cretary rejects Appellants’ claim that the Commonwealth Court implicitly repealed the “statistical recount” requirement by finding that the 2004 amendments authorized electroni c voting systems that do not use paper ballots to register votes. The Secretary argues th e Commonwealth Court never suggested that this requirement be repealed or that th ese provisions were in conflict. Appellants’ argument that a statistical recount requires election officials to assess whether a DRE has correctly captured voter intent is ano ther reformulation of their contention that DREs must produce voter-verified paper ballots, which we have determined is not required by the Election Code. The plain language of Section 3031.17 supports the Commonwealth Court’s finding tha t the statistical recount requirement constitutes a mere recount or retally of a random sample of a small percentage of the votes. Election officials can conduct a statistical recount on the DREs at issue by printing the requisite percentage of vote r ecords for a manual count or removing the electronic data on external media devices to use a different electronic device to recount the results. The purpose of the statist ical recount, or any random sampling, is to ensure that the small random sample take n is representative of the voting results of the entire population. This provisio n gives officials a simple method to assess whether the tabulating element of the DRE is worki ng properly without having to print out all the votes cast at every election. We also reject Appellants’ claim that the word “recount ” should be defined as an

assessment of each ballot to determine voter intent and “recanvass” be defined as a[J-74-2014] - 21

retally. While the Election Code does not define “re count,” the definitional section states that canvass “includes gathering the ballots after the el ection and counting, computing[,] and tallying the votes.” 25 P.S. § 2602(a.1). Since the Election Code’s original enactment, the Legislature has consistently used the term s recount and recanvass to acknowledge that distinct procedures are more suitable to conduct full recounts on voting systems with different technology; ballots may be recounted and voting systems that do not use ballots may be recanvassed. This concept i s demonstrated in 25 P.S. § 3261 and 3262 (both sections addressing “Recounts”), which set forth full recount procedures to be conducted in the event of fraud, error , or a proper voter request. The two sections contain nearly identical language except for the procedures in which the recount is conducted; while Section 3261 requires district s employing paper ballot voting to “open the ballot box P and cause the entir e vote to be correctly counted,” Section 3262 mandates that voting machines be “recanvasse d” by examining the registering counters that record the vote totals. 25 P. S. § 3261-62. As noted above, the term “voting machines” applies to paperless mechanical le ver systems. See In re Gen. Election for Twp. Supervisor, 620 A.2d 565, 568-69 (Pa . Cmwlth. 1993). In the 1980 amendments, the General Assembly authori zed electronic voting with the additional requirement that electronic voting system s be subject to the automatic statistical recount procedure at every election. The Le gislature subsequently clarified in the 2004 amendments that the same full recount proc edures set forth in 25 P.S. § 3261 and 3262 for paper ballots and voting machines apply to electronic voting systems in the event of fraud, error, or a proper voter request ; electronic systems that use paper ballots, similar to a traditional ballot box, should b e subject to a recount under Section 3261 and electronic systems that register votes without pa per ballots, similar to[J-74-2014] - 22

paperless voting machines, should be subject to a recanvass under Section 3262. 12 In making this distinction, the Legislation in no way alte red the automatic statistical recount procedure, but explained the technical attributes of an electronic voting system will

dictate how a full recount should be conducted. In doin g so, the General Assembly clearly contemplated how an electronic voting system pro cesses votes and set forth procedures for officials to conduct both statistical and fu ll recounts on electronic voting systems that do not register votes on paper ballots. 13 Appellants’ claim that the Legislature intended the word “recount” to require sof tware-independent, voter-verifiable paper ballots runs contrary to its clear intent to autho rize electronic voting systems that register votes electronically. As the DREs are capable of performing a statistical recount, the Commonwealth Court properly granted the Secretary summary relief on Count IV of Appellants’ Petition for Review.

12 If an election district uses an electronic voting system with paper ballots, the board shall recount all ballots using manual, mechanical, or e lectronic devices of a different type used for the specific election. 25 P.S. § 3154(e) (3). If the district uses “any other type of electronic voting systems, the county board shall conduct the recanvass similar to the procedure specified in clause (1) for voting ma chines.” 25 P.S. § 3154(e)(4). See also 25 P.S. § 3031.18 (emphasizing same distinction between electronic voting systems based on their use of paper ballots).

13 The only authority Appellants cite offer for their claim that a recount must verify voter intent is Edwards v. Prutzman, 165 A. 255, 255 (Pa. S uper. 1933), in which the Superior Court provided that “the recounting of the votesP is to ascertain whether there is any fraud or substantial error appearing. This requires so mething more that the mere counting of the votes. It involves the exercise of judi cial functions to decide whether certain votes shall be counted or not.” This argument i gnores the differences in technology offered by paper ballots and electronic voti ng. While election officials conducting a manual recount of paper ballots may exami ne the ballots for markings that may not clearly demonstrate voter intent, a DRE touch screen does not record ambiguous indicia of voter intent that can be reviewed during a manual recount. See Wexler v. Anderson, 452 F.3d 1226, 1233 (11th Cir. 2 006).[J-74-2014] - 23 C-D. Protection from Tampering (25 P.S. § 3031.7) and the Adequacy of the Secretary’s Examination of the DREs ’ Security We will address the next two issues together as Appellant s’ arguments are interrelated. In their third issue, Appellants mainta in the Commonwealth Court erred in finding the DREs satisfy the statutory certification requ irements set forth in Section 3031.7 related to a DRE’s security from tampering: No electronic voting system shall, upon examination, or reexamination, be approved by the Secretary of the Commonwealth, or by any examiner appointed by him, unless it be established that such system , at the time of such examination or reexamination:

. . . (12) Provides acceptable ballot security procedures and impoundment of ballots to prevent tampering with or substitution of a ny ballots...

. . . (16) If the voting system is of a type which provides fo r the computation and tabulation of votes at the district level, the dist rict component of the automatic tabulating equipment shall include the follo wing mechanisms or capabilities:

. . . (iii) It shall be so constructed and controlled that, d uring the progress of voting, it shall preclude every person from seeing o r knowing the number of votes theretofore registered for any candid ate or question; and it shall preclude every person from tampering with the tabulating element.

25 P.S. § 3031.7 (emphasis added). Specifically, Appellants argue that the DREs at issue ca nnot be deemed to have sufficient protection against tampering when the DREs ha ve security vulnerabilities that make it possible to alter votes. Claiming that the mer e possibility that a DRE’s tabulating element is susceptible to tampering warrants its decertification, Appellants argue that the plain language of the statute is obli gatory as it provides that an electronic voting system “shall preclude every person from tamperin g with the tabulating element.” Id. (emphasis added). While the Commonwealth Court found Appellants presented “no[J-74-2014] - 24

evidence that the challenged machines fail to accurately record votes when properly used,” Appellants argue that Subsection 3031.7(16) doe s not include the qualifier “when properly used” and assert the Legislature drafted this se ction in absolute terms. Petitioners’ Brief, at 39 (citing Banfield III, 442 M .D. 2006, at *6). In their motion for summary judgment and in their appellate brief, Appellants cite to expert testimony and independent studies to support their claim that the DREs at issue must be tamper-proof to comply with the Election C ode. 14 Appellants’ expert, Dr. Jones, asserted that it would be possible to inject malicio us code into a DRE to change the vote tabulation. Appellants also rely on the 200 5 report of a task force convened by the Brennan Center for Justice which found that the Seq uoia AVC Advantage, ES&S iVotronic and Diebold Accuvote-TSx lack a “powerful count ermeasure to software attacks” and 2006 study by Princeton University researchers wh o claimed that a predecessor to the AccuVote-TSx was susceptible to tamperi ng as malicious software

14 Amicus

Rutgers School of Law Constitutional Rights Clinic (“Ru tgers”) filed a brief in support of Appellants’ challenge to the DREs’ security. Rutgers has been litigating a similar lawsuit in New Jersey to challenge the use of el ectronic voting systems that do not produce voter-verified ballots, claiming that DRE s’ vulnerability to tampering make them inherently insecure and unreliable. Most of Rut gers’s brief refers to the use of one particular DRE, the Sequoia AVC Advantage, in New Jer sey elections. Rutgers relies on expert testimony and evidence never entered into t he record before the Commonwealth Court. As correctly asserted by the Secreta ry, consideration of such evidence by this Court would be improper since this evid ence was never made part of the official record. McCaffrey v. Pittsburgh Athletic Association, 448 Pa. 151, 162, 293 A.2d 51, 57 (1972) (appellate court cannot consider any thing which is not part of the record). Moreover, amicus briefs cannot raise issues not set forth by the parties. Hosp. & Healthsystem Ass'n of Pennsylvania v. Dep't of Pub. We lfare, 585 Pa. 106, 115, 888 A.2d 601, 606 n.10 (2005); 4 Am.Jur.2d Amicus § 7 (2005) (“[A]n amicus must accept the case before the court with the issues made by the pa rties. Accordingly, an amicus curiae ordinarily cannot inject new issues into a case which have not been presented by the parties”).[J-74-2014] - 25

could be installed onto the DRE and transferred to ot her systems. In addition, Appellants note the Secretaries of State in Ohio and C alifornia have decertified DREs due to perceived security vulnerabilities and other stat e legislatures have required DREs to have VVPAT technology. In their fourth claim, Appellants claim the Secretary failed to use adequate testing procedures in examining the DREs’ security. See 25 P.S . § 3031.5 (stating that the Secretary “shall examine the [EVS]” to verify that th e system “can be safely used by voters P and meets all the requirements hereinafter set forth” in the Election Code). Characterizing the Secretary’s testing as superficial and meaningless, Appellants claim the Secretary’s reexaminer relied exclusively on testing of a federally recognized independent testing authority (ITA), overlooked studi es evaluating the DREs’ security vulnerabilities, and failed to personally examine the DREs’ vulnerability to tampering. Acknowledging the Commonwealth Court found mandamus r elief does not encompass a review of the Secretary’s discretion as to direct the m anner in which the Secretary performs her duties, Appellants contend the Secretary’s r eexamination was an arbitrary

exercise of her discretion and based on a mistaken understa nding of her duties. See Appellants’ Brief, at 46 (quoting Seeton v. Pa. Game Comm’n, 594 Pa. 563, 574, 937 A.2d 1028, 1034 (2007) (providing that mandamus is “a n appropriate remedy, to direct [a public official] to comply with [her] statutory mand ate to the extent [she] misapprehends it”)). The Secretary asserts the Commonwealth Court correctly held that the DREs at issue preclude tampering as required by Section 3031.7( 16)(iii). Criticizing Appellants’ claims of tampering as “hypothetical,” the Secretary mai ntains Appellants have not identified a single, meaningful security breach in a P ennsylvania election. The Secretary stresses that the DREs at issue have been tested a nd certified as secure for[J-74-2014] - 26

reliable and accurate voting by independent federal l aboratories and the Secretary’s own examination. In addition, the Secretary emphasiz es that the Election Code outlines additional administrative and procedural security prote ctions to preclude individuals from tampering with the tabulating equipment of the electronic voting system. See 25 P.S. § 3031.13 (requiring that “automatic tabulating equipment P shall be locked and sealed”); id. at § 3031.21 (providing for the secure cu stody of the electronic voting system). Rejecting Appellants’ claim that Section 3031.7(16) demands an electronic voting system have absolute security, the Secretary maintains the Code does not require a DRE to be immune from tampering, but simply have the capability to preclude tampering, as the introductory paragraph of Section 30 31.7(16) states that an electronic voting system “shall include the following mechanisms or capabilitiesP.” (emphasis added). As all voting systems are fallible and exhibi t vulnerabilities, the Secretary argues the possibility of electoral fraud or system malfu nction can never be avoided no matter what type of system is used. Moreover, the Secr etary emphasizes the Code gives her discretion to determine whether a particular system precludes tampering. Even if this Court does not find the plain language of this provision to be dispositive, the Secretary asserts there is no basis to conclude from the le gislative history that the Legislature intended to require absolute security agai nst all potential threats. In response to Appellants’ challenge to the certificati on process, the Secretary defends the Commonwealth Court’s finding that Appella nts failed to present any evidence that the DREs at issue actually fell short of th e statutory requirements and were seeking inappropriate oversight of the Secretary’s discretionary duties. Refuting Appellants claims that she ignored the DREs’ vulnerabili ties, the Secretary maintains that she determined that risks posed by such vulnerabiliti es were not sufficient to violate[J-74-2014] - 27

the Election Code’s requirements. Thus, the Secretary co ncludes that Appellants presented no basis for which the lower court could have co ncluded that she had acted arbitrarily or mistakenly in certifying the DREs for use in Pennsylvania elections. Our resolution of this claim turns on Appellants’ narr ow argument that the DREs at issue should be decertified and prohibited from use in Pennsylvania elections based on the possibility that such systems are not tamper-proof . Appellants do not recognize they are advocating that the DREs be held to an impossi ble standard of invulnerability. We agree with the Commonwealth Court’s finding that the mere possibility of error cannot bar the use of a voting system as “the unfortun ate reality is that the possibility of

electoral fraud can never be completely eliminated, no matter which type of ballot is used.” Banfield III, 442 M.D. 2006, at *8 (citing We ber v. Shelley, 347 F.3d 1101, 1106- 107 (9 th Cir. 2003) (emphasis in original)). While Appellant s claim traditional paper ballots and optical scan voting are preferable alternat ives, they fail to acknowledge that such systems are also vulnerable to tampering as paper ba llots can be easily destroyed or altered by an individual intending to manipulate the election result. Moreover, paper ballots may fail to accurately record voter intent as a result of mechanical or human error that leads to the invalidation of votes, in cases where ballots have not been completed in a correct and comprehensible manner, contain an overvote or undervote based on the number of permitted selections in an elect ion, or contain markings that cannot be read by an optical scanner. As all voting s ystems are imperfect and not immune from tampering, the Election Code cannot be re ad to impose a requirement that

cannot be achieved. As the question of whether an electronic system has adequ ate security measures against tampering necessarily results in a subjective deter mination, the Legislature delegated this discretionary decision to the Secretary, w ho is the Pennsylvania’s chief[J-74-2014] - 28

election official. Kuznik v. Westmoreland Cnty. Bd. of Comm'rs, 588 Pa. 95, 139-40, 902 A.2d 476, 502 (2006). We have previously held th at “a reviewing court will ordinarily defer to an agency’s interpretation of a r egulation or a statute it is charged to enforce.” Id. (citation omitted). [W]hen the courts of this Commonwealth are faced with interpreting statutory language, they afford great deference to th e interpretation rendered by the administrative agency overseeing the i mplementation of such legislation.... Thus, our courts will not disturb adm inistrative discretion in interpreting legislation within an agency 's own sphere of expertise absent fraud, bad faith, abuse of discretion or clearly arbitrary action. Id. (quoting Winslow–Quattlebaum v. Maryland Ins. Gro up, 561 Pa. 629, 752 A.2d 878, 881 (2000)) (affording “great deference” to state ele ction officials’ interpretation of the Election Code in determining whether HAVA preempted Pennsylvania’s referendum requirement). As noted above, the Commonwealth Court found the Se cretary was entitled to summary relief on this claim as Appellants had not shown any more than the mere possibility that the certified DREs in theory could be su bject to tampering, presenting no evidence that the challenged devices have failed to accu rately record votes or experienced a security breach in an actual election. Up on Appellants’ request, the Secretary conducted reexaminations of the DREs with the assistance of an examiner, who reviewed federal test results of federal independen t testing authorities (ITAs), created test protocols for each DRE, and performed pen etration analyses to test the voting systems’ security. In addition, the Secretary co nsidered the competing opinions of the parties’ experts and the studies cited by Appel lants identifying vulnerabilities in the security of the certified DREs. Taking all of this information into consideration, the Secretary determined that the DREs satisfied each of th e Election Code’s requirements, finding their vulnerabilities do not render them nec essarily defective and unfit for use in[J-74-2014] - 29

an election when they have successfully worked to accuratel y record and tabulate votes in countless Pennsylvania elections. As Appellants have n ot alleged the Secretary’s certification of the DREs was fraudulent, in bad faith, an abuse of discretion or clearly arbitrary, we decline to disturb her administrative di scretion in overseeing the implementation of the Election Code which is entitled to great deference. On the same note, Appellants are not entitled to man damus relief based on their contention that the Secretary testing standards are inad equate to assess DRE security from tampering. The writ of mandamus is an extraordi nary remedy which exists to compel official performance of a ministerial act or a m andatory duty. Brown v. Levy, 621 Pa. 1, 4, 73 A.3d 514, 516 n.2 (2013). “Where the action sought to be compelled is discretionary, mandamus will not lie to control that di scretionary act, ... but courts will

review the exercise of the actor's discretion where it is arbitrary or fraudulently exercised or is based upon a mistaken view of the law. Pennsylvan ia State Ass'n of Cnty. Comm'rs v. Commonwealth, 545 Pa. 324, 330, 681 A.2d 699, 701-702 (1996). Before a proposed electronic system can be submitted to t he Secretary’s examination, the Election Code provides that the syste m must have first been “examined and approved by a federally recognized ind ependent testing authority and meet[] any voting system and performance and test stan dards established by the Federal Government.” 25 P.S. § 3031.5(a). If an e lectronic voting system satisfies scrutiny under federal test standards, the system may be examined by the Secretary, who must file a report “stating whether, in his opini on, 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.” 25 P.S. § 3031 .5(b) (emphasis added). While the Legislature mandated that an electronic vot ing system must comply with specific federal testing and performance standards an d the requirements set forth[J-74-2014] - 30

in the Election Code, it does not prescribe a particular testing procedure to govern the manner in which the Secretary is to perform the examin ation, but ultimately left this discretion to the expertise of the Secretary, who is task ed with implementing the Election Code. Although Appellants demand that this C ourt direct the Secretary to adopt more rigorous testing standards to examine DRE secu rity, they have not provided this Court with an adequate basis to interfere with or control the Secretary’s discretion as they failed to show the Secretary acted arbitrarily or mistakenly in directing the certification process.

E. Constitutional Challenges Lastly, Appellants contend the Commonwealth Court er red in granting the Secretary summary relief on their constitutional challe nges in Counts VII, IX, & X, claiming the Secretary’s certification of DREs violates Article I, Sections 5 and 26 of the Pennsylvania Constitution as these devices are susceptible t o interference. See Pa. Const. art. I, § 5 (providing state action “shall P [not ] interfere to prevent the free exercise of the right of suffrage”); § 26 (stating that “[n]either the Commonwealth nor any political subdivision thereof shall deny to any per son the enjoyment of any civil right”). Citing Reynolds v. Sims, 377 U.S. 533, 555 (1964), in which the Supreme Court of the United States held the right to vote “cannot b e destroyed by the alternation of ballots, nor diluted by ballot-box stuffing,” Appella nts assert the fundamental right to vote includes the right to have one’s vote counted as cast . Appellants ask this Court to apply strict scrutiny as the Secretary neither articulate d a compelling state interest for certifying the DREs nor demonstrated their use is the le ast restrictive means of furthering a government interest. 15

15 When a statute significantly interferes with the exerci se of a fundamental right, such a statute “will be upheld only if it is necessary to prom ote a compelling state interest and (continuedP)[J-74-2014] - 31

In addition, Appellants claims the Secretary’s certifi cation of the DREs violates Article VII, Section 6 which provides that “[a]ll laws regulating the holding of elections by the citizensP shall be uniform throughout the State.” Pa. Const. art. VII, § 6. As Pennsylvania counties may choose to utilize voting system s with or without voterverified ballots, Appellants claim that individuals who vote on DREs will be harmed as their votes will not be weighed equally with those wh o vote on systems with softwareindependent records. While the Secretary acknowledges that the right to vo te is fundamental, the Secretary argues that this principle does not by itself r equire strict scrutiny of Appellants’ claims. As there must be substantial governmental regul ation to ensure that elections are fair, honest, and orderly, the Secretary asserts tha t the Commonwealth Court has applied a “gross abuse” standard to review claims challen ging the constitutionality of election statutes. In re Nomination Papers of Rogers, 908 A.2d 948, 954 (Pa. Cmwlth. 2006) (single judge opinion). As such, the Secretary cla ims that election regulations should be found constitutional if they are “reasonable , neutral, and do not work a severe restriction on the right to vote.” Secretary’s Brief, at 56-57 (citing Weber, 347 F.3d at 1106). The Secretary argues Appellants have failed to show the certification and use of the DREs directly interferes with the right to vote as there is no evidence that any Pennsylvania county using DREs had experienced lost or mi scounted votes, tampering of their election result, or malfunction preventing vo ters from casting their vote. Moreover, the Secretary rejects Appellants’ claim that the certification of DREs violates Article VII, Section 6. While this constitution al provision requires uniformity of elections, the Secretary asserts that the Constitution do es not require the Legislature to

(Pcontinued) is narrowly tailored to effectuate that state purpose.” Khan v. State Bd. of Auctioneer Examiners, 577 Pa. 166, 184, 842 A.2d 936, 947 (2004 ) (citations omitted).[J-74-2014] - 32

limit the number of types of voting systems that can be simultaneously certified for use as it “permit[s] the use of voting machines, or other m echanical devices for registering or recording and computing the vote, at all elections o r primaries, in any county, city, borough, incorporated town or townshipP.” Pa. Const. art. VII, § 6. The Secretary also emphasizes that Appellants have not presented evidence to show that DREs are more susceptible to interference, fraud, or error than any o ther voting system. Noting the Election Code is applied uniformly to DREs and optical scanners, the Secretary asserts that both types of voting systems are subject to the same examination and certification process and the same statutory protections, such as a reca nvass or recount. Although this Court has acknowledged that the right t o vote is fundamental and “pervasive of other basic civil and political rights,” Be rgdoll v. Kane, 557 Pa. 72, 85, 731 A.2d 1261, 1269 (1999) (citation omitted), the state may enact substantial regulation containing reasonable, non-discriminatory restrictions to e nsure honest and fair elections that proceed in an orderly and efficient man ner. In re Nader, 588 Pa. 450, 465, 905 A.2d 450, 459 (2006) (finding statute placing rest rictions on candidates’ eligibility was an “eminently reasonable” regulation which was rati onally related to the Commonwealth’s interest in ensuring honest and fair el ections). Cf. Burdick v. Takushi, 504 U.S. 428, 434 (1992) (stating “when a state electi on law provision imposes only reasonable, nondiscriminatory restrictions upon the First and Fourteenth Amendment rights of voters, the State's important regulatory int erests are generally sufficient to justify the restrictions”) (quotation marks omitted). We find persuasive the decisions of federal circuit court s that have held that DREs that register votes electronically without a voter -verified ballot do not severely restrict the right to vote. As mentioned supra, the Ni nth Circuit emphasized in Weber that all balloting systems are imperfect; although DREs have many significant benefits[J-74-2014] - 33

in promoting voter turnout, offering an accurate and cost-effective method, presenting a user-friendly display, and eliminating ballot ambigui ty problems exhibited by traditional paper ballots, DREs are vulnerable to programming err ors and may make fraud more difficult to detect. Weber, 347 F.3d at 1106. Howe ver, the Ninth Circuit emphasized that state officials have the power to substantially re gulate the election process as it is “the job of democratically-elected representatives to w eigh the pros and cons of various balloting systems.” Id. at 1107. Refusing to interfer e with this discretion, the Ninth Circuit found that “[s]o long as their choice is reasonabl e and neutral, it is free from judicial second-guessing.” Id. Cf. Hennings v. Grafton, 523 F.2d 861, 864 (7th Cir. 1975) (providing that “[v]oting device malfunction [a nd] the failure of election officials to take statutorily prescribed steps to diminish what was at most a theoretical possibility that the devices might be tampered with ... fall far short of constitutional infractions”). In claiming the uniformity requirement of Article V II, Section 6 is violated, Appellants do not assert that counties should be require d to employ a single kind of voting system throughout the Commonwealth. Instead, Appellants’ argument sounds in equal protection principles as they allege that voters in counties that utilize DREs are less likely to have their votes counted accurately that th ose voters who use systems with voter-verified ballots. Citing to Black v. McGuff age, 209 F.Supp.2d 889 (N.D. Ill. 2002), Appellants suggest that the Secretary’s certificat ion of the DREs is unconstitutional as it “arbitrarily and unnecessarily va lues some votes over others.” Appellants’ Brief at 54 (quoting Black, 209 F.Supp. at 899). Even if we overlook the fact that Appellants never raised an equal protection claim in their Petition for Review, we reiterate tha t Appellants have presented no evidence to suggest that DREs are any less accurate than an y other voting system. Appellants’ reliance on Black is misplaced; the federal d istrict court in Black denied[J-74-2014] - 34

preliminary objections seeking dismissal of the action as the plaintiffs had sufficiently stated a federal Equal Protection claim in presenting v oting statistics showing that voters in jurisdictions using punch card systems and optical scan systems without error notification features were “statistically less likely to ha ve their votes counted.” Black, 209 F.Supp. at 899. In contrast, in this case, Appel lants were given the opportunity to develop a full record to prove their claim that the DREs’ accuracy rates were inferior to those voting systems which they claim to be tamper proof . After ample discovery, Appellants failed to substantiate any of the alleged deficiencies in DRE accuracy. As a result, we find no merit in Appellants’ claim th at the Secretary’s certification of the DREs violated the fundamental right to vote o r resulted in disparate treatment of any group of voters. As the Election Code bestows upon the Secretary the responsibility to choose between several voting systems wi th varying advantages and disadvantages, we see no reason to interfere with the Secretary’s discretion in certifying the DREs at issue absent a showing that the decision was un reasonable or discriminatory.

III. Conclusion For all of the aforementioned reasons, we conclude th e Commonwealth Court did not err in granting the Secretary’s petition for summa ry relief. In particular, we find the Secretary exercised proper discretion in determining tha t the certified DREs satisfy the requirements for electronic voting systems set forth in t he Election Code and the use of the DREs does not violate Appellants’ fundamental righ t to vote as embodied within Article I, Section 5 of the Pennsylvania Constitution o r the uniformity requirement in Article VII, Section 6 of the Pennsylvania Constitutio n. Thus, we affirm the

Commonwealth Court's order.

Former Chief Justice Castille and Former Justice McCaffery did not participate in the decision of this case.[J-74-2014] - 35

Mr. Chief Justice Saylor, Messrs. Justice Eakin and Baer and Madame Justice Todd join the opinion.