[J-74-2014] 

IN THE SUPREME COURT OF PENNSYLVANIA 

MIDDLE DISTRICT 

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, 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 

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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, 2015 

In this appeal, we must determine whether the Commonwealth Court erred in 

upholding the decision of the Secretary of the Commonwealth to certify certain direct-
[J-74-2014] - 2 

recording electronic voting systems (DREs) for use in Pennsylvania elections.1 The 

Commonwealth Court found that the DREs satisfy the certification requirements set 

forth in the Election Code2 and do not infringe on the fundamental right to vote as 

protected by the Pennsylvania Constitution. For the reasons that follow, we affirm the 

Commonwealth Court’s decision to grant the Secretary’s motion for summary relief. 

I. Background 

Before we consider the specific facts of this case, it is necessary to give a brief 

overview of our state law on voting system certification. 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 (voting machines). In 1980, the 

General Assembly amended the Election Code to allow the use of electronic voting 

systems, which include optical scanners, punch card systems, and DREs. 25 P.S. §§ 

3031.1-3031.22 (electronic voting systems). Optical scanners (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 automatic 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 the 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 cabinet 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 the 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 simplicity 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 receipts. 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 electronic 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., transferred 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 replacement of lever and punch card 

voting machines with other systems that are HAVA compliant.3 Although the Secretary 

urged counties to obtain electronic voting systems, each county 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 disapprove 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 electronic 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 comply 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. Westmoreland 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 voting system for use. 25 P.S. § 

3031.10. 

Appellants, twenty-four Pennsylvania voters, filed this 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 decertify the DREs which do not 

comply with the Election Code and compelled to adopt more rigorous testing standards. 

In Count I, Appellants claimed the DREs do not meet the Election Code’s definition of 

an electronic voting system as they cannot produce a “permanent physical record of 

each vote cast.” 25 P.S. § 3031.1. In Count II, Appellants contended the DREs do not 

“preclude every person from tampering with the tabulating element.” 25 P.S. §§ 

3031.7(16)(iii), (17)(i). In Counts III and VII, Appellants asserted the Secretary failed to 

adopt adequate procedures to test the DREs’ reliability, accuracy, and security. In 

Count IV, Appellants alleged the DREs do not allow officials to conduct a “statistical 

recount of a random sample of ballotsPusing manual, mechanical or electronic devices 

of a type different than those used for the specific election.” 25 P.S. § 3031.17. In 

Count V, Appellants claimed voting officials cannot perform full recounts on DRE 

results. See 25 P.S. § 3154(e) (recount to assess discrepancy in election results), § 

3261 (recount upon the voters’ request). In Count VI, Appellants challenged the 

Secretary’s denial of the voters’ requests for reexamination of the DREs. See 25 P.S. 

 

4

 The following DREs are certified for use: the AVC Edge II and AVC Advantage (made 

by Sequoia Voting Systems, Inc.), the iVotronic (Elections Systems & Software, Inc.), 

the eSlate (Hart InterCivic, Inc.), the ELECTronic 1242 (Danaher Industrial Controls), 

and the AccuVote TSX (Diebold Elections Systems). Upon Appellants’ challenge, the 

Secretary decertified the WinVote (Advanced Voting Systems). 
[J-74-2014] - 5 

3031.5. In Counts VIII, IX, and X, Appellants claimed the DREs’ certification interferes 

with their suffrage rights under various provisions of the Pennsylvania Constitution.5 

The Secretary filed preliminary objections to the Petition for Review. The 

Commonwealth Court overruled these objections in a published opinion. Banfield v. 

Cortes, 922 A.2d 36 (Pa. Cmwlth. 2007) (en banc) (“Banfield I”). In the discovery phase 

of trial, the parties obtained reports and deposition testimony from expert witnesses who 

reviewed the Secretary’s examination reports. Appellants retained two experts, Dr. 

Douglas Jones, Ph.D., and Dr. Daniel Lopresti, Ph.D., who 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 addition, Appellants relied on studies 

conducted by other states that reveal security vulnerabilities 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 Election Code and the Secretary 

acted within his discretion in certifying the DREs at issue 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 entitled to judgment as a matter of law on 

claims in which the parties did not dispute the relevant 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 improperly 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 right, 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 uniform throughout the stateP”). 
[J-74-2014] - 6 

The Commonwealth Court scheduled en banc argument on Appellants’ motion and 

directed that all other matters, including the Secretary’s motion, be held in abeyance. 

On August 29, 2012, the Commonwealth Court denied Appellants’ motion for 

partial summary judgment in a published, en banc opinion. 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 that the DREs do not satisfy the 

Election Code’s definition of an electronic voting system 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 contemporaneous paper record 

at the time a vote is cast, the Commonwealth Court construed the phrase “provide for a 

permanent physical record” to refer to the DREs’ ability 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 record when specifically requested. 

 Rejecting Appellants’ claim that vote records must be immune from intentional or 

unintentional alteration to be “permanent,” the Commonwealth Court emphasized that 

“any record, whether paper or electronic, is subject to destruction, 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 contests6 and 

22 months for federal elections.7 Noting Appellants did not challenge the permanency 

of DRE records printed on full sheets of paper, the Commonwealth Court majority found 

 

6

 See 25 P.S. § 3070 (providing that voting machines be 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 officers to retain and preserve for 

twenty-two months all records and papers related to the 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 vague and non-specific to declare as a 

matter of law that vote records [the DREs print] on thermal 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 challenged Dr. Shamos’s 

opinion that the legibility of thermal paper will exceed the twenty-two month federal 

ballot retention requirement if kept from direct exposure to heat. Moreover, the majority 

found the DREs’ electronic data are also sufficiently permanent, 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 Commonwealth Court majority found 

Appellants’ assertion that the Election Code requires software-independent voting to be 

inconsistent with the 1980 amendments authorizing the use of voting systems that only 

register votes electronically. While Appellants may rightfully question the vulnerability of 

DREs to tampering, the Commonwealth Court majority reasoned that the Secretary’s 

certification and approval process is a proper safeguard against such security concerns. 

 Second, the Commonwealth Court concluded that Appellants were not entitled to 

summary judgment on Count IV in which Appellants alleged 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 ballots be counted, not produced, by 
[J-74-2014] - 8 

another device, the Commonwealth Court found a statistical 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 that the statistical recount 

provision requires an audit to assess whether the DRE captured correct voter intent. 

Instead, the Commonwealth Court reasoned that this provision requires a simple retally 

of a statistical sample of the votes. The Commonwealth Court reiterated that the 

Election Code does not require software-independent vote records as several 

provisions authorize systems which only register votes electronically 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 ballots); 25 P.S. § 3262 (same). 

 In a footnote, the Commonwealth Court criticized Appellants’ 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 electronic systems utilizing paper 

ballots and provides that other types of electronic systems shall be assessed under 

Section 3262 (allowing officials to recanvass voting machines by examining the 

registering counter without unlocking the machine against voting). As a result, the 

Commonwealth Court declined to enter judgment for Appellants on Count IV. 

 Third, the Commonwealth Court declined to issue a writ of mandamus to order 

the Secretary to comply with Appellants’ request in Count 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 electors, the Commonwealth Court 

noted the Secretary had conceded that such examinations would be appropriate. 
[J-74-2014] - 9 

Unaware of whether such examinations had taken place, the 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 violations 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 entitled to judgment as a matter of law 

on Counts IX and X. For the foregoing reasons, the Commonwealth Court denied 

Appellants’ motion for partial summary judgment. 

 Judge McCullough filed a concurring and dissenting opinion, which was joined by 

Judge Pellegrini. Although Judge McCullough agreed with 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 McCullough 

also questioned whether records printed on thermal paper are sufficiently “permanent,” 

crediting the testimony of Appellants’ expert who claimed thermal paper can become 

unreadable in a matter of weeks if not stored properly. Thus, Judge McCullough 

concluded Appellees were entitled to judgment as a matter of law on Count I. 

On January 29, 2013, the Commonwealth Court issued a single-judge order by 

Judge Leadbetter, finding Count VI to be moot after the Secretary performed the 

requested DRE reexaminations and dismissing Count I (permanent physical record of 

each vote cast) and Counts IV and V (statistical recount) based on the reasons set forth 

in the Commonwealth Court’s August 29, 2012 en banc opinion (Banfield II). 
[J-74-2014] - 10 

On October 1, 2013, in a single-judge memorandum authored by Judge 

Leadbetter, the Commonwealth Court granted the Secretary’s motion for summary relief 

on Appellants’ remaining counts and entered judgment in 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 Secretary’s certification process 

was inadequate to assess DRE security. Reviewing Appellants’ request for mandamus 

relief directing the Secretary to decertify the DREs and to establish more stringent 

testing standards, the Commonwealth Court emphasized that 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. Directors of Sch. Dist. of Farrell, 381 

Pa. 561, 566, 112 A.2d 192, 195 (1955). Viewing Appellants’ request as a demand for 

improper oversight of the Secretary’s discretion, the Commonwealth 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 record votes. The Commonwealth 

Court concluded that “[s]ince voting systems will always be vulnerable to fraud, the 

mere possibility of a security breach is not alone sufficient to warrant overriding the 

Secretary’s determination to certify the systems.” Banfield III, 442 M.D. 2006, at *8. 

Furthermore, the Commonwealth Court concluded that the Secretary was entitled 

to summary relief on Counts VIII, IX, and X with respect to Appellants’ constitutional 

challenges to the certification of the DREs. Although Appellants claimed the DREs are 

unable to accurately record votes and thus, interfere with the fundamental right to vote 

of those individuals forced to use the DREs, the Commonwealth Court found that 

Appellants had no foundation for such arguments which are 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 Secretary’s motion for 

summary relief. On October 15, 2013, the Commonwealth Court entered judgment in 

favor of the Secretary and against Appellants on all counts of the Petition for Review. 

Appellants present the following five issues for our review: 

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 ended? 

2. Does an electronic voting system P allow for a “statistical 

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 person from 

tampering with the tabulating element” as required by Section 1107-A [25 

P.S. §§ 3031.7(16)(iii), (17)(i)] if it has known security 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 requirements” 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] narrowly 

tailored to achieve a compelling state interest if, unlike other available 

EVSs, the EVS cannot verify that votes were accurately captured? 

Appellants’ Brief, at 4 (reordered for review). 

II. Discussion 

 “An application for summary relief may be granted if a party's right to judgment is 

clear and no material issues of fact are in dispute.” Jubelirer v. Rendell, 598 Pa. 16, 28, 

953 A.2d 514, 521 (2008) (citations omitted).8 

 

8

 Pennsylvania Rule of Appellate Procedure 1532(b), which governs motions for 

summary relief, provides: “[a]t any time after the filing of a petition for review in an 

appellate or original jurisdiction matter the court may 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 favorable 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 there is no dispute as to 

any material issues of fact, we must determine whether the 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 Commonwealth, 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 granting Secretary summary 

relief on Count I as the DREs violate the Election Code by failing to provide for a 

permanent physical record of each vote cast. In the definitional section of the 1980 

Election Code amendments permitting electronic voting, the Legislature defined an 

“electronic voting system” as “a system in which one or more voting devices are used to 

permit the registering or recording of votes and in which such votes are computed and 

tabulated by automatic tabulating equipment. The system shall provide for a permanent 

physical record of each vote cast.” 25 P.S. § 3031.1 (emphasis added). 

Appellants begin by emphasizing their belief that electronic data are not 

“physical” records as such data is composed of subatomic particles that are not 

perceptible through the senses. Appellants also claim electronic 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 cast” as the DREs’ recording 

process is dependent on software which may be flawed or corrupted; thus, Appellants 

allege that one cannot be certain if the electronic data reflects voter intent. 
[J-74-2014] - 13 

Although Appellants concede that the DREs can print records on paper that are 

“physical” and “arguably permanent,”9 Appellants claim the Commonwealth Court erred 

in finding the DREs’ printing capability allow them to “provide for a record of each vote 

cast.” Appellants claim the plain meaning of the requirement 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 that the records printed at the 

end of the election are not meaningful records, as they merely report electronic data 

that may have been altered without detection. If this Court finds the phrase “provide for 

a record of each vote cast” to be ambiguous, Appellants claim that their interpretation is 

supported by the statute’s legislative history in which they allege the members of the 

General Assembly expressed a distrust of computers and intended this requirement to 

operate as a safeguard to provide a recountable record of votes. 

In response, the Secretary contends that the DREs’ electronic records constitute 

permanent physical records. Although not definitively decided by the Commonwealth 

Court, the Secretary claims the DREs’ electronic records are “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 signifies that vote records 

need not last forever but must be retained for a sufficient 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 only record votes electronically. 

 

9

 In Footnote 44 of their brief, Appellants assert there is a genuine issue of disputed fact 

as to whether DRE vote records printed on thermal paper 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 generate records on demand, 

defining the phrase “provide for” as “to make it possible for something to be done.” 

Secretary’s Brief, at 17 (citing Oxford Advanced Learners Dictionary). Although 

Appellants argue the printed records are simply copies of flawed electronic data, the 

Secretary contends this indirect attack fails for the same reasons as their direct attack 

on electronic data as the Legislature specifically authorized 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 Election Code’s provisions. See 1 

Pa.C.S. § 1921(c)(8). In addition, the Secretary urges this Court to consider the 

consequences of adopting Appellants’ interpretation of the language in question to 

decertify the DREs in use and leave a majority of the counties in the Commonwealth 

without a voting system. While Appellants suggest that 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 same issues as use of the DREs 

and may not be economically feasible. 

This challenge requires this Court to engage in statutory 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 Philadelphia 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 effect to all provisions of the statute under 

review, if possible. 1 Pa.C.S. § 1921(a). The best indication 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 section 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 ambiguity, the letter of the statute is not 

to be disregarded under the pretext of pursuing its spirit. 1 Pa.C.S. § 1921(b). 

Accordingly, only when the words of a statute are ambiguous should a reviewing court 

seek to ascertain the intent of the General Assembly through 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 voting 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 requires 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 requirement into Section 3031.1, 

the plain language of the statute provides otherwise. 

Appellants cannot point to any provision in the Election Code requiring an 

electronic voting system to print a paper ballot for each individual voter to view. On the 

contrary, the plain language of Section 3031.1 states that an electronic voting system 

shall “provide for a permanent physical record.” 25 P.S. § 3031.1 (emphasis 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://www.oxforddictionaries.com/ 

us/definition/american_english/provide#provide__13. As 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 permanent physical record provision to be a 

contemporaneous requirement would render the word “for” to be mere surplusage. See 

Commonwealth v. Lobiondo, 501 Pa. 599, 603, 462 A.2d 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 Legislature’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 required records on demand.” 

Moreover, other Election Code provisions show the Legislature contemplated 

and authorized electronic voting systems that would register votes during an election 

without paper ballots. Section 3031.1 broadly defines “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 apparatus 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 different full recount procedures for 

electronic voting systems that operate with or without paper ballots. If we were to 

accept Appellants’ contention that the Legislature intended that electronic systems must 

provide voter-verified ballots, this interpretation would render meaningless provisions in 

which the Legislature specifically discussed voting systems that 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 unreasonable, 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 mere copies of electronic 

data that may have been altered without detection and suggest counties should 

purchase optical scanners or DREs equipped with new VVPAT (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 ballots. While VVPAT technology 

may offer additional security against election fraud, Appellants should direct their claims 

to the Legislature, which is better suited to investigate the advantages and 

disadvantages of VVPAT DREs and examine policy considerations that would arise 

from requiring voter-verified paper ballots. Although Appellants laud paper records as 

a panacea to voting fraud, even paper ballots are not a completely secure system 

without risk as there are many opportunities for tampering to occur from the time a voter 

casts his or her ballot until the time a winner is declared. Appellants also seem to 

assume there would be no practical problems in attempting to implement a 

contemporaneous paper record requirement while preserving voter privacy and election 

security.10 As the certified DREs are able to print individual vote 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 DREs with VVPAT 

technology may violate the ballot secrecy requirement in the Pennsylvania Constitution 

by recording individual votes on a continuous roll of paper 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 argument 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 conduct a statistical recount of 

election returns pursuant to Section 3031.17, which provides as follows: 

The county board of elections, as part of the computation and canvass of 

returns, shall conduct a statistical recount of a random sample of ballots 

after each election using manual, mechanical or electronic 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 that can be counted manually at 

the close of the election, Appellants emphasize the DREs do not produce a record from 

which officials could determine if the DRE correctly recorded a voter’s selection. 

Suggesting the Commonwealth Court incorrectly defined the term “recount,” Appellants 

distinguish between the terms “recanvass” and “recount,” claiming that a recanvass only 

checks whether the votes were correctly counted whereas a recount assesses whether 

votes were correctly captured in the first place. Appellants argue the legislative history 

of the 1980 amendments authorizing electronic voting systems shows a recount must 

 

(Pcontinued) 

on appeal. Appellants’ Brief at 32, n. 44. Appellants 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 the twenty-day state ballot 

retention requirement and the twenty-two month federal ballot retention requirement if 

kept from direct heat. “Where an appellate brief fails 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 waived. It is not the obligation of an 

appellate court to formulate [an] appellant’s arguments for him.” Wirth v. 

Commonwealth, ---Pa.---, 95 A.3d 822, 837 (2014). 
[J-74-2014] - 19 

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

contained a statistical recount to detect and deter fraud. 

Even assuming that votes recorded by a DRE can be recounted, Appellants 

claim the DREs prevent officials from conducting a statistical recount by “devices of a 

type different than those used in the election” as a DRE prints software-dependent vote 

records. In contrast, Appellants argue that optical scan systems and VVPAT DREs 

meet this requirement as they retain an original voter-verified paper record which can be 

counted by another electronic device or by hand. Appellants again take issue with the 

Commonwealth Court’s finding that the Election Code does not require softwareindependent vote records, accusing the Commonwealth Court of implicitly repealing the 

statistical recount requirement for electronic voting systems in Section 3031.17. As 

portions of the 2004 amendments pertaining to full recounts 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 statistical recount. 

In response, the Secretary supports the Commonwealth Court’s finding that the 

DREs can conduct a statistical recount using a “device of a different type” as required 

by Section 3031.17 as a DRE’s printed records can be counted manually or in the 

alternative, a DRE’s electronic records can be transferred on external media devices to 

be recounted on another electronic device using different software. The Secretary 

distinguishes the statistical recount provision from full recounts required by other 

Election Code provisions, claiming that while a statistical 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. The Secretary claims the purpose of 

the statistical recount is different; a “‘statistical recount’ seeks merely to determine 

whether the original tabulation was performed correctlyP [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 Secretary rejects Appellants’ claim 

that the Commonwealth Court implicitly repealed the “statistical recount” requirement by 

finding that the 2004 amendments authorized electronic voting systems that do not use 

paper ballots to register votes. The Secretary argues the Commonwealth Court never 

suggested that this requirement be repealed or that these provisions were in conflict. 

Appellants’ argument that a statistical recount requires election officials to assess 

whether a DRE has correctly captured voter intent is another 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 that 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 records 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 statistical recount, or any random 

sampling, is to ensure that the small random sample taken is representative of the 

voting results of the entire population. This provision gives officials a simple method to 

assess whether the tabulating element of the DRE is working 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 “recount,” the definitional section states 

that canvass “includes gathering the ballots after the election 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 terms 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 is 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 districts employing paper ballot 

voting to “open the ballot box P and cause the entire vote to be correctly counted,” 

Section 3262 mandates that voting machines be “recanvassed” 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 lever 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 authorized electronic voting with 

the additional requirement that electronic voting systems be subject to the automatic 

statistical recount procedure at every election. The Legislature subsequently clarified in 

the 2004 amendments that the same full recount procedures 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 be subject to a recount under Section 

3261 and electronic systems that register votes without paper 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 altered 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 doing so, the General Assembly 

clearly contemplated how an electronic voting system processes votes and set forth 

procedures for officials to conduct both statistical and full 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 software-independent, voter-verifiable 

paper ballots runs contrary to its clear intent to authorize 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 electronic 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 machines.” 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. Super. 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 something more that the mere 

counting of the votes. It involves the exercise of judicial functions to decide whether 

certain votes shall be counted or not.” This argument ignores the differences in 

technology offered by paper ballots and electronic voting. While election officials 

conducting a manual recount of paper ballots may examine the ballots for markings that 

may not clearly demonstrate voter intent, a DRE touchscreen 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. 2006). 
[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 Appellants’ arguments are 

interrelated. In their third issue, Appellants maintain the Commonwealth Court erred in 

finding the DREs satisfy the statutory certification requirements 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 any ballots... 

. . . 

(16) If the voting system is of a type which provides for the computation 

and tabulation of votes at the district level, the district component of the 

automatic tabulating equipment shall include the following mechanisms or 

capabilities: 

. . . 

(iii) It shall be so constructed and controlled that, during the progress 

of voting, it shall preclude every person from seeing or knowing the 

number of votes theretofore registered for any candidate 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 cannot be deemed to have 

sufficient protection against tampering when the DREs have security vulnerabilities that 

make it possible to alter votes. Claiming that the mere possibility that a DRE’s 

tabulating element is susceptible to tampering warrants its decertification, Appellants 

argue that the plain language of the statute is obligatory as it provides that an electronic 

voting system “shall preclude every person from tampering 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) does not include the qualifier “when 

properly used” and assert the Legislature drafted this section 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 Code.14 Appellants’ expert, Dr. 

Jones, asserted that it would be possible to inject malicious code into a DRE to change 

the vote tabulation. Appellants also rely on the 2005 report of a task force convened by 

the Brennan Center for Justice which found that the Sequoia AVC Advantage, ES&S 

iVotronic and Diebold Accuvote-TSx lack a “powerful countermeasure to software 

attacks” and 2006 study by Princeton University researchers who claimed that a 

predecessor to the AccuVote-TSx was susceptible to tampering as malicious software 

 

14 Amicus Rutgers School of Law Constitutional Rights Clinic (“Rutgers”) 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 electronic voting systems that do 

not produce voter-verified ballots, claiming that DREs’ vulnerability to tampering make 

them inherently insecure and unreliable. Most of Rutgers’s brief refers to the use of one 

particular DRE, the Sequoia AVC Advantage, in New Jersey elections. Rutgers relies 

on expert testimony and evidence never entered into the record before the 

Commonwealth Court. As correctly asserted by the Secretary, consideration of such 

evidence by this Court would be improper since this evidence 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 anything 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. Welfare, 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 parties. 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 other systems. In addition, 

Appellants note the Secretaries of State in Ohio and California have decertified DREs 

due to perceived security vulnerabilities and other state 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 the 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 studies evaluating the DREs’ security 

vulnerabilities, and failed to personally examine the DREs’ vulnerability to tampering. 

Acknowledging the Commonwealth Court found mandamus relief does not encompass 

a review of the Secretary’s discretion as to direct the manner in which the Secretary 

performs her duties, Appellants contend the Secretary’s reexamination was an arbitrary 

exercise of her discretion and based on a mistaken understanding 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 “an appropriate remedy, to direct 

[a public official] to comply with [her] statutory mandate 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 maintains Appellants have not 

identified a single, meaningful security breach in a Pennsylvania election. The 

Secretary stresses that the DREs at issue have been tested and certified as secure for 
[J-74-2014] - 26 

reliable and accurate voting by independent federal laboratories and the Secretary’s 

own examination. In addition, the Secretary emphasizes that the Election Code outlines 

additional administrative and procedural security protections 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 custody 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 3031.7(16) states that an electronic 

voting system “shall include the following mechanisms or capabilitiesP.” (emphasis 

added). As all voting systems are fallible and exhibit vulnerabilities, the Secretary 

argues the possibility of electoral fraud or system malfunction can never be avoided no 

matter what type of system is used. Moreover, the Secretary 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 legislative history that the 

Legislature intended to require absolute security against all potential threats. 

 In response to Appellants’ challenge to the certification process, the Secretary 

defends the Commonwealth Court’s finding that Appellants failed to present any 

evidence that the DREs at issue actually fell short of the statutory requirements and 

were seeking inappropriate oversight of the Secretary’s discretionary duties. Refuting 

Appellants claims that she ignored the DREs’ vulnerabilities, the Secretary maintains 

that she determined that risks posed by such vulnerabilities were not sufficient to violate 
[J-74-2014] - 27 

the Election Code’s requirements. Thus, the Secretary concludes that Appellants 

presented no basis for which the lower court could have concluded that she had acted 

arbitrarily or mistakenly in certifying the DREs for use in Pennsylvania elections. 

 Our resolution of this claim turns on Appellants’ narrow 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 impossible 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 unfortunate 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 Weber v. Shelley, 347 F.3d 1101, 1106-

107 (9th Cir. 2003) (emphasis in original)). While Appellants claim traditional paper 

ballots and optical scan voting are preferable alternatives, they fail to acknowledge that 

such systems are also vulnerable to tampering as paper ballots 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 election, or contain markings that 

cannot be read by an optical scanner. As all voting systems are imperfect and not 

immune from tampering, the Election Code cannot be read to impose a requirement that 

cannot be achieved. 

 As the question of whether an electronic system has adequate security measures 

against tampering necessarily results in a subjective determination, the Legislature 

delegated this discretionary decision to the Secretary, who 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 that “a reviewing court will 

ordinarily defer to an agency’s interpretation of a regulation 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 the interpretation 

rendered by the administrative agency overseeing the implementation of 

such legislation.... Thus, our courts will not disturb administrative 

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. Group, 561 Pa. 629, 752 A.2d 878, 

881 (2000)) (affording “great deference” to state election officials’ interpretation of the 

Election Code in determining whether HAVA preempted Pennsylvania’s referendum 

requirement). 

 As noted above, the Commonwealth Court found the Secretary 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 subject to tampering, presenting no 

evidence that the challenged devices have failed to accurately record votes or 

experienced a security breach in an actual election. Upon Appellants’ request, the 

Secretary conducted reexaminations of the DREs with the assistance of an examiner, 

who reviewed federal test results of federal independent testing authorities (ITAs), 

created test protocols for each DRE, and performed penetration analyses to test the 

voting systems’ security. In addition, the Secretary considered the competing opinions 

of the parties’ experts and the studies cited by Appellants 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 the Election Code’s requirements, 

finding their vulnerabilities do not render them necessarily defective and unfit for use in 
[J-74-2014] - 29 

an election when they have successfully worked to accurately record and tabulate votes 

in countless Pennsylvania elections. As Appellants have not 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 discretion in overseeing the 

implementation of the Election Code which is entitled to great deference. 

 On the same note, Appellants are not entitled to mandamus relief based on their 

contention that the Secretary testing standards are inadequate to assess DRE security 

from tampering. The writ of mandamus is an extraordinary remedy which exists to 

compel official performance of a ministerial act or a mandatory 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 discretionary 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. Pennsylvania 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 the Secretary’s 

examination, the Election Code provides that the system must have first been 

“examined and approved by a federally recognized independent testing authority and 

meet[] any voting system and performance and test standards established by the 

Federal Government.” 25 P.S. § 3031.5(a). If an electronic 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 opinion, 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 voting system must comply 

with specific federal testing and performance standards and 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 examination, but ultimately left this 

discretion to the expertise of the Secretary, who is tasked with implementing the 

Election Code. Although Appellants demand that this Court direct the Secretary to 

adopt more rigorous testing standards to examine DRE security, 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 erred in granting the 

Secretary summary relief on their constitutional challenges 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 to 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 person 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 be destroyed by the alternation of 

ballots, nor diluted by ballot-box stuffing,” Appellants 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 articulated a compelling state interest for 

certifying the DREs nor demonstrated their use is the least restrictive means of 

furthering a government interest.15 

 

15 When a statute significantly interferes with the exercise of a fundamental right, such a 

statute “will be upheld only if it is necessary to promote a compelling state interest and 

(continuedP) 
[J-74-2014] - 31 

 In addition, Appellants claims the Secretary’s certification 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 systems 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 who vote on systems with softwareindependent records. 

 While the Secretary acknowledges that the right to vote is fundamental, the 

Secretary argues that this principle does not by itself require strict scrutiny of Appellants’ 

claims. As there must be substantial governmental regulation to ensure that elections 

are fair, honest, and orderly, the Secretary asserts that the Commonwealth Court has 

applied a “gross abuse” standard to review claims challenging 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 claims 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 miscounted votes, tampering 

of their election result, or malfunction preventing voters from casting their vote. 

 Moreover, the Secretary rejects Appellants’ claim that the certification of DREs 

violates Article VII, Section 6. While this constitutional provision requires uniformity of 

elections, the Secretary asserts that the Constitution does 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 mechanical devices for registering 

or recording and computing the vote, at all elections or 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 other 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 recanvass or recount. 

 Although this Court has acknowledged that the right to vote is fundamental and 

“pervasive of other basic civil and political rights,” Bergdoll 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 ensure honest and fair 

elections that proceed in an orderly and efficient manner. In re Nader, 588 Pa. 450, 465, 

905 A.2d 450, 459 (2006) (finding statute placing restrictions on candidates’ eligibility 

was an “eminently reasonable” regulation which was rationally related to the 

Commonwealth’s interest in ensuring honest and fair elections). Cf. Burdick v. Takushi, 

504 U.S. 428, 434 (1992) (stating “when a state election law provision imposes only 

reasonable, nondiscriminatory restrictions upon the First and Fourteenth Amendment 

rights of voters, the State's important regulatory interests are generally sufficient to 

justify the restrictions”) (quotation marks omitted). 

 We find persuasive the decisions of federal circuit courts 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 Ninth 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 ambiguity problems exhibited by traditional 

paper ballots, DREs are vulnerable to programming errors and may make fraud more 

difficult to detect. Weber, 347 F.3d at 1106. However, the Ninth Circuit emphasized 

that state officials have the power to substantially regulate the election process as it is 

“the job of democratically-elected representatives to weigh the pros and cons of various 

balloting systems.” Id. at 1107. Refusing to interfere with this discretion, the Ninth 

Circuit found that “[s]o long as their choice is reasonable 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 [and] 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 VII, Section 6 is violated, 

Appellants do not assert that counties should be required 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 those voters who use systems 

with voter-verified ballots. Citing to Black v. McGuffage, 209 F.Supp.2d 889 (N.D. Ill. 

2002), Appellants suggest that the Secretary’s certification of the DREs is 

unconstitutional as it “arbitrarily and unnecessarily values 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 that Appellants have presented no 

evidence to suggest that DREs are any less accurate than any other voting system. 

Appellants’ reliance on Black is misplaced; the federal district 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 voting statistics showing that 

voters in jurisdictions using punch card systems and optical scan systems without error 

notification features were “statistically less likely to have their votes counted.” Black, 

209 F.Supp. at 899. In contrast, in this case, Appellants 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 that the Secretary’s certification 

of the DREs violated the fundamental right to vote or 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 with 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 unreasonable or 

discriminatory. 

III. Conclusion

 For all of the aforementioned reasons, we conclude the Commonwealth Court did 

not err in granting the Secretary’s petition for summary relief. In particular, we find the 

Secretary exercised proper discretion in determining that the certified DREs satisfy the 

requirements for electronic voting systems set forth in the Election Code and the use of 

the DREs does not violate Appellants’ fundamental right to vote as embodied within 

Article I, Section 5 of the Pennsylvania Constitution or the uniformity requirement in 

Article VII, Section 6 of the Pennsylvania Constitution. 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.