IN THE COMMONWEALTH COURT OF PENNSYLVANIA

County of Fulton, Fulton County Board :

of Elections, Stuart L. Ulsh, in his :

official capacity as County :

Commissioner of Fulton County and :

in his capacity as a resident, taxpayer :

and elector in Fulton County, and Randy :

H. Bunch, in his official capacity as :

County Commissioner of Fulton County : 

and in his capacity as a resident, :

taxpayer and elector of Fulton County, :

Petitioners :

v. : No. 277 M.D. 2021

: Argued: March 10, 2022

Secretary of the Commonwealth, :

Respondent :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE LORI A. DUMAS, Judge

HONORABLE MARY HANNAH LEAVITT, Senior Judge

OPINION 

BY SENIOR JUDGE LEAVITT FILED: May 23, 2022

The County of Fulton, the Fulton County Board of Elections, Stuart L. 

Ulsh (county commissioner, county board of elections commissioner, resident, 

taxpayer and elector), and Randy H. Bunch (county commissioner, county board of 

elections commissioner, resident, taxpayer and elector) (collectively, County) have 

filed an Amended Petition for Review (Amended Petition) against the Secretary of 

the Commonwealth (Secretary) to challenge her “decertification” of two electronic 

voting devices that the County has leased. The Secretary’s stated reason for this 

action was that the County used a third-party consultant to inspect its electronic 

voting devices as part of the County’s inquiry into its conduct of the 2020 General 

Election.
2

The County’s Amended Petition has five counts. Count I asserts that 

the Secretary unlawfully decertified the County’s two electronic voting devices.

Count II asserts that the Pennsylvania Election Code (Election Code)1expressly 

authorized the County to inspect its electronic voting devices as part of its statutory 

duty to ensure the safe and honest conduct of elections in the County. Count III 

asserts that a directive of the Secretary, which, inter alia, prohibits all county boards 

of elections from inspecting their electronic voting devices with the assistance of a 

third-party consultant, violates Section 302 of the Election Code, 25 P.S. §2642. 

Count IV asserts that the Secretary unlawfully withheld funding from the County

that it needs to acquire replacement electronic voting devices. Count V seeks 

injunctive relief to restore the status quo that existed prior to the Secretary’s unlawful 

decertification of the County’s electronic voting devices. 

In response, the Secretary has filed a preliminary objection in the nature 

of a demurrer to Count III of the Amended Petition, i.e., the challenge to the

Secretary’s directive prohibiting all county boards of elections from inspecting their 

electronic voting devices with the assistance of third-party consultants. The 

Secretary argues that Count III fails to state a claim because she had express statutory 

authority to issue this directive, and, further, the Amended Petition does not allege 

that she abused her discretion in issuing the challenged directive. 

For the reasons set forth herein, we overrule the Secretary’s demurrer 

to Count III. It cannot be said with certainty that the law will not allow the County 

to prevail on this claim.

1 Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §§2600-3591. 
3

Background

In 2019, the Secretary2approved the Democracy Suite 5.5A electronic 

voting system produced by Dominion Voting Systems, Inc. (Dominion) for use in 

Pennsylvania. Amended Petition ¶14. In accordance with this approval, the County 

leased two Democracy Suite 5.5A electronic voting devices3from Dominion and 

used them, inter alia, for the 2020 General Election. Id. ¶¶19-20. Shortly after the 

2020 General Election, the County contracted with Wake Technology Services Inc.

(Wake TSI), “a private technology firm specializing in cyber security including in 

the field of voting technology” that “has extensive experience in working with 

governmental entities such as the United States (U.S.) Department of State and the 

Pennsylvania System of Higher Education.” Id. ¶29. The County engaged Wake 

TSI to assess the County’s conduct of the 2020 General Election. 

In September of 2016, the Secretary issued the “Guidance on Electronic 

Voting System Preparation and Security” (2016 Guidance) that acknowledges the 

“use of third-party vendors for electronic voting system preparation and security” by 

counties and “strongly recommends” that a county’s vendor follow the procedures 

set forth in the 2016 Guidance. Amended Petition ¶¶23-24. The 2016 Guidance 

2 Kathy Boockvar served as Secretary of the Commonwealth in 2019, when the certification first 

occurred. On February 5, 2021, Veronica Degraffenreid was appointed Acting Secretary of the 

Commonwealth. Leigh M. Chapman, the current Acting Secretary, was appointed February 8, 

2022. 

3 The Amended Petition refers to the County’s two electronic voting devices at issue in this case 

as “systems,” Amended Petition ¶¶9, 19-20, 73, and also “machines,” id. ¶48, and at 14, Wherefore 

Clause & n.1; see also id. ¶65 (“system and machine”). This opinion uses the word “system” to 

mean the Democracy Suite 5.5A technology, or other electronic voting technology, that was

approved by the Secretary for use across the Commonwealth, and it uses the word “device” to 

mean particular equipment produced by a vendor of an electronic voting system certified by the 

Secretary. This usage is consistent with the terms “Electronic voting system” and “Voting device,” 

which are terms defined in Section 1101-A of the Election Code, added by the Act of July 11, 

1980, P.L. 600, 25 P.S. §3031.1. 
4

specifically addresses “file transfers.” Id. ¶25. On October 13, 2020, the Secretary

issued another “Guidance on Electronic Voting System Preparation and Security” 

(2020 Guidance) that confirmed and updated the 2016 Guidance. Id. ¶27. In the 

course of Wake TSI’s assessment, the County followed the 2016 and 2020 

Guidances and “ensured that proper chain of custody of the equipment was 

maintained at all times through the presence of Fulton County’s Election Director

(Commissioners and other staff were also present), who was the sole individual to 

remove or replace ballots in the ballot carts.” Id. ¶31. Wake TSI conducted its 

assessment “in a manner that was bi[]partisan and transparent.” Id. ¶39.

Wake TSI’s “assessment of Fulton County’s election systems consisted 

of a review of operating and application system file dates, operating system and 

application log files, ballot images, and related files.” Amended Petition ¶30. On 

February 29, 2021, Wake TSI issued a report concluding that the County conducted

the 2020 General Election “in a diligent and effective manner and followed the 

directions of the Commonwealth[.]” Id. ¶32. 

On July 8, 2021, several months after Wake TSI’s inspection and report

to the County, the Secretary issued “Directive 1 of 2021,” which states, in relevant 

part, as follows:

The following Directive is issued July 8, 2021, by the Secretary 

of the Commonwealth pursuant to authority contained at Section 

1105-A(a) of the Pennsylvania Election Code, [added by the Act 

of July 11, 1980, P.L. 600,] 25 P.S. [§]3031.5(a).

1. Background. The Secretary of the Commonwealth 

(“Secretary”) has duties pursuant to Article XI-A of the 

Pennsylvania Election Code ... to examine, evaluate and certify 

electronic voting systems. These reviews include verifying that 

the voting system conforms to federal and state law and any 

regulations or standards regarding confidentiality, security, 

accuracy, safety, reliability, usability, accessibility, durability, 
5

resiliency, and auditability. This is in addition to the Federal 

testing and certification undertaken by the U.S. Election 

Assistance Commission.

* * *

2. Third-Party Access to Electronic Voting Systems. Demands 

have been made to allow third-party entities not directly involved 

with the conduct of elections to have access to electronic voting 

systems, specifically to review and copy the internal electronic, 

software, mechanical, logic, and related components of such 

systems.... Such access by third parties undermines chain of 

custody requirements and strict access limitations necessary to 

prevent both intentional and inadvertent tampering with 

electronic voting systems. It also jeopardizes the security and 

integrity of those systems and will negate the ability of electronic 

voting system vendors to affirmatively state that such systems 

continue to meet Commonwealth security standards, are 

validated as not posing security risks, and are able to be certified 

to perform as designed by the electronic voting system vendor

and as certified by both the U.S. Election Assistance 

Commission and the Department of State. 

3. Limits on Third-Party Access to Electronic Voting Systems.

The following directive is effective immediately:

a. County Boards of Elections shall not provide 

physical, electronic, or internal access to third 

parties seeking to copy and/or conduct an 

examination of state-certified electronic voting 

systems, or any components of such systems,

including but not limited to: election management 

software and systems, tabulators, scanners, 

counters, automatic tabulating equipment, voting 

devices, servers, ballot marking devices, paper 

ballot or ballot card printers, portable memory 

media devices (thumb drives, flash drives and the 

like), and any other hardware, software or devices 

being used as part of the election management 

system.
6

b. If access described in Paragraph 3.a. occurs, 

those pieces of voting equipment will be considered 

no longer secure or reliable to use in subsequent 

elections. As a result, the Department of State will 

withdraw the certification or use authority for those 

pieces of the county voting system. This directive is 

specific to the impacted pieces of the county 

electronic voting system and does not impact the 

certification of the underlying voting system nor 

does it impact other pieces of a county’s voting 

system that has not been accessed/copied by a thirdparty.

c. The Commonwealth of Pennsylvania will not 

reimburse any cost of replacement voting 

equipment for which certification or use authority 

has been withdrawn pursuant to this directive.

Original Petition for Review, Ex. F (emphasis added).4

On July 20, 2021, shortly after the issuance of Directive 1 of 2021, the 

Secretary notified the County by letter that, effective immediately, she was

“decertifying” the County’s two Democracy Suite 5.5A electronic voting devices. 

Amended Petition ¶37. The Secretary’s letter stated that this decertification was 

prompted by Wake TSI’s examination of the County’s voting devices, which had

“compromised” the two devices. Id. The County contends that the Secretary’s 

decertification was “arbitrary, capricious, and an error of law” because she took this 

action without a reexamination of the two voting devices to determine whether they 

4 The Amended Petition states that it attaches Directive 1 of 2021 as “Exhibit F,” but only the 

original Petition for Review contains Exhibit F. Directive 1 of 2021 is also available on the 

Department of State’s website. See SECRETARY OF THE COMMONWEALTH, DIRECTIVE 

CONCERNING ACCESS TO ELECTRONIC VOTING SYSTEMS, INCLUDING BUT NOT LIMITED TO THE 

IMAGING OF SOFTWARE AND MEMORY FILES, ACCESS TO RELATED INTERNAL COMPONENTS, AND 

THE CONSEQUENCES TO COUNTY BOARDS OF ALLOWING SUCH ACCESS (July 8, 2021), 

https://www.dos.pa.gov/VotingElections/OtherServicesEvents/Documents/Directive-1-of2021_Access-to-Electronic-Voting-Systems_7-8-2021.pdf (last visited May 20, 2022). 
7

“continued to meet the requirements of the Election Code.” Id. ¶¶47-49. Had she 

done so, she “would have found that the security and other requirements” of the law

continue to be satisfied “and that such existing machines could readily be used by 

Fulton County.” Id. ¶48.

The Amended Petition states that in her examination of Dominion’s 

system pursuant to Section 1105-A(a) of the Election Code prior to approval of the 

system, “Respondent Secretary” used a vendor, Center for Civic Design, “to 

examine the Democracy Suite 5.5A voting system in 2019, [which vendor] does not 

appear on the EAC’s [(U.S. Election Assistance Commission)] directory of 

accredited laboratories.” Amended Petition ¶63. 

The County challenged the Secretary’s actions in a Petition for Review 

filed on August 18, 2021. It then filed the Amended Petition on September 17, 

2021.

5

 On October 18, 2021, the Secretary filed a demurrer to Count III of the 

Amended Petition.

In her demurrer, the Secretary asserts that she took action against the

County because it “permitted a third party, a private company called Wake TSI with 

5 Ancillary to this proceeding, the Secretary filed an emergency application to prevent spoliation 

of evidence after the County granted a request by a committee of the Pennsylvania State Senate

for the County’s 2020 election data. Dominion then sought to intervene, alleging that any

inspection by the Senate committee’s contractor, Envoy Sage, LLC, would violate the County’s 

contract with Dominion. The intervention petition did not include Dominion’s proposed pleading 

or adopt by reference the pleading already filed by the petitioner or by the respondent. See

Pa.R.Civ.P. 2328(a). This Court denied Dominion’s intervention petition for the stated reason that 

a ruling on the County’s challenge to the Secretary’s decertification of the County’s two voting 

devices, without a reexamination or a hearing, would have no impact on Dominion’s common law 

contract claims. The Pennsylvania Supreme Court stayed the inspection by Envoy Sage pending 

the Secretary’s appeal of this Court’s interlocutory order denying the Secretary’s request for a 

protective order. The Supreme Court also reversed this Court’s denial of Dominion’s intervention 

petition. 
8

no election-related experience, to access and take images of key components of 

Fulton County’s certified electronic voting equipment, thereby compromising the 

security of the equipment.” Preliminary Objections ¶6. Because of “this 

unsanctioned breach of basic security protocols,” the Secretary “‘had no choice but 

to decertify the use’ of Fulton County’s compromised electronic voting equipment.”

Id. ¶7 (quotation from Secretary’s letter of July 20, 2021). 

With respect to Directive 1 of 2021, the Secretary asserts that it was 

expressly authorized by Section 1105-A(a) of the Election Code, 25 P.S. §3031.5(a).

Relying on the Pennsylvania Supreme Court’s decision in Banfield v. Cortés, 110 

A.3d 155 (Pa. 2015), the Secretary argues that she has the responsibility to regulate 

the counties in their inspection of electronic voting systems, and, further, her 

directives issued for this purpose cannot be set aside unless fraudulent or arbitrary. 

The County responds that the Secretary’s prohibition against a county’s 

inspection of its electronic voting devices cannot be reconciled with Section 302(d)

and (g) of the Election Code, which obligates county boards of elections to appoint 

“their own” “machine inspectors” to “inspect systematically and thoroughly the 

conduct of primaries and elections.” 25 P.S. §2642(d), (g). The County rejects the 

Secretary’s claim that Section 1105-A(a) effected an implied repeal of the County’s 

duties and powers under Section 302 of the Election Code.

We begin with a review of the applicable provisions of the Election 

Code and the relevant case law precedent. 
9

Election Code Provisions

a. Article XI-A of the Election Code

Section 1105-A of the Election Code addresses the qualification of 

electronic voting systems for use in Pennsylvania. It states in its entirety as follows:

(a) Any person or corporation owning, manufacturing or selling, 

or being interested in the manufacture or sale of, any electronic 

voting system, may request the Secretary of the Commonwealth 

to examine such system if the voting system has been examined 

and approved by a federally recognized independent testing 

authority and if it meets any voting system performance and test 

standards established by the Federal Government. The costs of 

the examination shall be paid by the person requesting the 

examination in an amount set by the Secretary of the 

Commonwealth. Any ten or more persons, being qualified 

registered electors of this Commonwealth, may, at any time, 

request the Secretary of the Commonwealth to reexamine any 

electronic voting system theretofore examined and approved by 

him. Before any reexamination, the person, persons, or 

corporation, requesting such reexamination, shall pay to the 

Treasurer of the Commonwealth a reexamination fee of four 

hundred fifty dollars ($450). The Secretary of the 

Commonwealth may, at any time, in his discretion, reexamine 

any such system therefore examined and approved by him. The 

Secretary of the Commonwealth may issue directives or 

instructions for implementation of electronic voting procedures 

and for the operation of electronic voting systems.

(b) Upon receipt of a request for examination or reexamination

of an electronic voting system as herein provided for or in the 

event he determines to reexamine any such system, the Secretary 

of the Commonwealth shall examine the electronic voting system

and shall make and file in his office his report, attested by his 

signature and the seal of his office, 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 
10

hereinafter set forth.

[6]

If his report states that the system can be 

so used and meets all such requirements, such system shall be 

deemed approved and may be adopted for use at elections, as 

herein provided. With respect to any electronic voting system 

approved for use in this Commonwealth by the secretary, the 

report of the secretary shall specify the capacity of the 

components of that system, the number of voters who may 

reasonably be accommodated by the voting devices and 

automatic tabulating equipment which comprise such system and 

the number of clerks and machine inspectors, if any, required 

based on the number of registered electors in any election district 

in which the voting system is to be used, such specifications 

being based upon the secretary’s examination of the system. Any 

county which thereafter may adopt any such approved system 

shall provide the components of such system in a number no less 

than that sufficient to accommodate the voters of that county or 

municipality in accordance with the minimum capacity standards 

so prescribed by the secretary. The county board shall comply 

with the requirements for the use of the electronic voting system 

as set forth in the report by the Secretary of the Commonwealth.

(c) No electronic voting system not so approved shall be used at 

any election, and if, upon the reexamination of any such system 

previously approved, it shall appear that the system so 

reexamined can no longer be used safely by voters at elections as 

provided in this act or does not meet the requirements hereinafter 

set forth, the approval of that system shall forthwith be revoked 

by the Secretary of the Commonwealth, and that system shall not 

thereafter be used or purchased for use in this Commonwealth.

(d) When an electronic voting system has been so approved, no 

improvement or change that does not impair its accuracy, 

efficiency or capacity or its compliance with the requirements 

hereinafter set forth, shall render necessary the reexamination or 

reapproval of such system. 

(e) Neither the Secretary of the Commonwealth nor any member 

of a county board of elections shall have any pecuniary interest 

6 Section 1107-A of the Election Code, added by the Act of July 11, 1980, P.L. 600, 25 P.S. 

§3031.7, sets forth requirements for electronic voting systems. 
11

in any electronic voting system or in any of the components 

thereof, or in the design, manufacture or sale thereof. 

25 P.S. §3031.5 (emphasis added). Each subsection relates to a separate aspect of 

the Secretary’s qualification of electronic voting systems.

Section 1105-A(a) governs the Secretary’s examination and 

reexamination of electronic voting systems and the procedures therefor.

7

 

Specifically, the Secretary must examine any electronic voting system upon the 

request of “[a]ny person or corporation” that manufactures or sells electronic voting 

systems, i.e., vendors. 25 P.S. §3031.5(a). To make a request, the applicant vendor’s 

system must satisfy “any system performance and test standards established by the 

Federal Government.” Id. The applicant vendor must pay for the Secretary’s 

examination, and this examination is required before any electronic voting system 

can be approved for use in Pennsylvania. In addition, subsection (a) authorizes 10

or more “qualified registered electors of this Commonwealth” to request a 

reexamination upon payment of a $450 fee. Id. In connection with either an

examination or reexamination, the Secretary may “issue directives or instructions

for implementation of electronic voting procedures and for the operation of 

electronic voting systems.” Id. (emphasis added).

The legislature chose the word “directive” as opposed to the word 

“regulation.” Historically, “management directives,” along with administrative 

7 There is nothing new about the Secretary’s examination or reexamination of voting systems. 

Section 1105-A (within Article XI-A) is patterned on Section 1106 (within Article XI) of the 

Election Code, 25 P.S. §3006, which governs the examination of voting machines and dates back

to 1937. Article XI-A governs the examination of electronic voting systems and was added to the 

Election Code in 1980. The two articles are similar in structure and content, but they differ in 

terminology. For example, Article XI refers to “voting machines” throughout, whereas Article 

XI-A defines and uses “electronic voting systems” and “voting devices.” 
12

circulars and procedural manuals, are used by the Governor to manage executive 

branch agencies and their employees. See Cutler v. State Civil Service Commission

(Office of Administration), 924 A.2d 706, 710-12 (Pa. Cmwlth. 2007). We have 

explained: 

A management directive is not an administrative regulation with 

the force and effect of law.[] See Tire Jockey Service, Inc. v. 

Department of Environmental Protection, [] 915 A.2d 1165, 

1186 ([Pa. ]2007) (explaining that an agency’s duly promulgated 

legislative-type regulation “is valid and binding upon courts as a 

statute so long as it is (a) adopted within the agency’s granted 

power, (b) issued pursuant to proper procedure, and (c) 

reasonable[]”). A management directive is a tool for managing 

people in the executive branch of state government.[] It is 

important to consider the differences between an administrative 

regulation and a management directive. 

Cutler, 924 A.2d at 711-12 (footnotes omitted). See also Shapp v. Butera, 348 A.2d 

910, 913 (Pa. Cmwlth. 1975) (explaining that a gubernatorial directive “intended for 

communication with subordinate officials . . . for the execution of the duties of the 

Executive Branch of government” is non-justiciable and not enforceable by court 

order). 

Notably, an agency regulation, regardless of its title, must be 

promulgated in accordance with “the framework of laws governing agency 

rulemaking in Pennsylvania.” Corman v. Acting Secretary of Pennsylvania 

Department of Health, 266 A.3d 452, 486 (Pa. 2021). In Newport Homes, Inc. v. 

Kassab, 332 A.2d 568, 575 (Pa. Cmwlth. 1975), this Court held that “[h]aving failed 

to comply with the Commonwealth Documents Law,[8]the ‘final directive’ issued 

8 Act of July 31, 1968, P.L. 769, as amended, 45 P.S. §§1102-1602, 45 Pa. C.S. §§501-907. 
13

by PennDOT[9]is a nullity.” In Corman, the Supreme Court considered a state

agency order to every school district in Pennsylvania to require all persons in a 

school (parents, teachers, students) to wear a mask to control the spread of COVID19. The Acting Secretary of Health asserted that because she was authorized to issue 

this order under the applicable disease control statute, the order was exempt from 

laws governing an agency’s promulgation of regulations. The Supreme Court 

rejected this argument, explaining as follows:

[A]bsent a gubernatorial disaster emergency declaration 

suspending the framework of laws governing agency rulemaking 

in Pennsylvania, the Department [of Health] was obligated to 

follow the procedures set forth in the Regulatory Review Act,[10]

the Commonwealth Documents Law, and the Commonwealth 

Attorneys Act[11] before promulgating a new disease control 

measure with the force of law.

[] Because the Secretary 

circumvented that process, her Order was void ab initio.

Corman, 266 A.3d at 486-87 (emphasis added and footnote omitted). 

After an examination of an electronic voting system conducted under 

Section 1105-A(a) of the Election Code, the Secretary must file a “report” in her 

office stating that the examined system “can be safely used by voters.” Section 

1105-A(b) of the Election Code, 25 P.S. §3031.5(b). Further, the Secretary’s report

“shall specify the capacity of the components of that system, the number of voters 

who may reasonably be accommodated by the voting devices and automatic 

tabulating equipment which comprise such system and the number of clerks and 

machine inspectors, if any, required based on the number of registered electors in 

any election district in which the voting system is to be used[.]” Id. (emphasis 

9 PennDOT is an acronym for the Pennsylvania Department of Transportation.

10 Act of June 25, 1982, P.L. 633, as amended, 71 P.S. §§745.1-745.15.

11 Act of October 15, 1980, P.L. 950, as amended, 71 P.S. §§732-101–732-506.
14

added). In choosing an approved electronic voting system, the county boards of 

elections must be mindful of the “minimum capacity standards so prescribed by the 

[S]ecretary” and purchase “the components of such system in a number no less than 

that sufficient to accommodate the voters of that county.” Id. Likewise, county 

boards must employ the proper number of “clerks and machine inspectors” based on 

the number of electors in the county. Id. 

Where a reexamination by the Secretary shows that a system can no 

longer be safely used at an election, “the approval of that system shall forthwith be 

revoked.” Section 1105-A(c) of the Election Code, 25 P.S. §3031.5(c). Approval 

does not place an electronic voting system in amber. A “change” to a system “that 

does not impair its accuracy, efficiency or capacity” does not require a 

“reexamination or reapproval of such system.” Section 1105-A(d) of the Election 

Code, 25 P.S. §3031.5(d). Subsection (d) does not specify the agent of this change

or its occasion.

The Election Code defines the terms “electronic voting system” and 

“voting device” for purposes of Article XI-A of the Election Code as follows: 

“Electronic voting system” means 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. 

* * *

“Voting device” means 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 electronically, so that in either case the votes so 

registered may be computed and tabulated by means of automatic 

tabulating equipment. 
15

Section 1101-A of the Election Code, 25 P.S. §3031.1 (emphasis added). Section 

1105-A(a) uses the phrase “electronic voting systems,” but the phrase “voting 

devices” does not appear.

b. Article III of the Election Code

Section 302 of the Election Code makes the county boards of elections 

responsible for the honest, efficient and uniform conduct of elections. It states, in 

relevant part, as follows:

The county boards of elections, within their respective counties, 

shall exercise, in the manner provided by this act, all powers 

granted to them by this act, and shall perform all the duties 

imposed upon them by this act, which shall include the following:

(a) To investigate and report to the court of quarter 

sessions their recommendations on all petitions 

presented to the court by electors for the division, 

redivision, alteration, change or consolidation of 

election districts, and to present to the court 

petitions for the division, redivision, alteration, 

change or consolidation of election districts in 

proper cases.

(b) To select and equip polling places that meet the 

requirements of this act.

(c) To purchase, preserve, store and maintain 

primary and election equipment of all kinds,

including voting booths, ballot boxes and voting 

machines, and to procure ballots and all other 

supplies for elections.

(d) To appoint their own employes, voting machine 

custodians, and machine inspectors.

* * *

(f) To make and issue such rules, regulations and 

instructions, not inconsistent with law, as they may 

deem necessary for the guidance of voting machine 

custodians, elections officers and electors.
16

(g) To instruct election officers in their duties, 

calling them together in meeting whenever deemed 

advisable, and to inspect systematically and 

thoroughly the conduct of primaries and elections

in the several election districts of the county to the 

end that primaries and elections may be honestly, 

efficiently, and uniformly conducted.

* * *

(i) To investigate election frauds, irregularities and 

violations of this act, and to report all suspicious 

circumstances to the district attorney.

* * *

25 P.S. §2642(a)-(d), (f)-(g), and (i) (emphasis added). 

In addition to making the county boards of elections responsible for the 

conduct of honest elections, Section 302 gives them the means to carry out this 

responsibility. The county boards of elections are empowered to purchase and 

maintain “election equipment of all kinds” and “appoint their own ... voting machine 

custodians, and machine inspectors.” 25 P.S. §2642(c), (d). Incidental thereto, the 

county boards are empowered to “make and issue such rules, regulations and 

instructions, not inconsistent with law, as they may deem necessary for the guidance 

of voting machine custodians, election officers and electors.” 25 P.S. §2642(f)

(emphasis added). The county boards are required to “investigate election frauds, 

irregularities and violations of [the Election Code], and to report all suspicious 

circumstances to the district attorney.” 25 P.S. §2642(i). 

Section 302 imposes mandatory duties upon the county boards of 

elections as well as discretionary authority and powers, such as the power to 

promulgate regulations. In addition, county boards have been given the power to 

issue subpoenas. See Section 304(a) of the Election Code, 25 P.S. §2644(a). The 
17

Supreme Court has held that in their investigation of the conduct of elections, the 

county boards of elections exercise quasi-judicial authority. Appeal of McCracken, 

88 A.2d 787, 788 (Pa. 1952). 

Analysis

In reviewing preliminary objections in the nature of a demurrer, this 

Court “must accept as true all well[-]pleaded material allegations in the petition for 

review, as well as all inferences reasonably deduced therefrom.” Buoncuore v. 

Pennsylvania Game Commission, 830 A.2d 660, 661 (Pa. Cmwlth. 2003). We are 

not required to accept as true “conclusions of law, unwarranted inferences from 

facts, argumentative allegations, or expressions of opinion.” Id. For this Court to 

sustain preliminary objections, “it must appear with certainty that the law will not 

permit recovery[.]” McCord v. Pennsylvania Gaming Control Board, 9 A.3d 1216, 

1218 n.3 (Pa. Cmwlth. 2010) (quoting Pennsylvania State Lodge, Fraternal Order 

of Police v. Department of Conservation and Natural Resources, 909 A.2d 413, 415-

16 (Pa. Cmwlth. 2006)). Where there is any doubt, this Court will overrule the 

preliminary objections. Fumo v. Hafer, 625 A.2d 733, 734 (Pa. Cmwlth. 1993). 

The Secretary requests the Court to dismiss Count III, the County’s

challenge to Directive 1 of 2021. Noting that Section 1105-A(a) of the Election 

Code authorizes the Secretary to issue “directives or instructions” for “the operation 

of electronic voting systems,” the Secretary argues that Directive 1 of 2021 was 

expressly authorized. 25 P.S. §3031.5(a). Further, because the Amended Petition 

does not allege that Directive 1 of 2021 was issued fraudulently, in bad faith or 

arbitrarily, the terms of Directive 1 of 2021 are unassailable. The Secretary argues 

that as the Commonwealth’s chief election official, she has been empowered to 

regulate, by directive, the county boards in the use of their voting devices, and these
18

directives are enforced by her power of “decertification.” Necessarily, she adds, her 

authority over electronic voting systems includes individual electronic voting 

devices.

The County rejects the Secretary’s expansive view of Section 1105-

A(a) of the Election Code. It acknowledges the Secretary’s responsibility to 

examine and approve an electronic voting system before it can be used in 

Pennsylvania but believes her responsibility ends there. At that point, the county 

boards of elections become responsible. From the Secretary’s approved system list, 

the county board makes a choice appropriate for the county’s voting population; 

purchases the “components” of that chosen system; and uses those components on 

election day and thereafter in any post-election inspections. Component security is 

the county board’s duty. It is the county boards, not the Secretary, that must

“maintain primary and election equipment of all kinds” and appoint inspectors 

thereof. Section 302(c) and (d) of the Election Code, 25 P.S. §2642(c), (d). Stated 

otherwise, with respect to electronic voting systems, the Election Code vests the 

Secretary with responsibility at the macro level and vests the county boards of 

elections with responsibility at the micro level. 

The County argues that Directive 1 of 2021 violates Section 302 of the 

Election Code in multiple ways and was not authorized by Section 1105-A(a) of the 

Election Code. Although Directive 1 of 2021 purports to authorize the Secretary to 

decertify a county’s voting devices, Section 1105-A(a) relates to electronic voting 

systems, not specific devices. In any case, under Section 1105-A(a), no 

“decertification,” whether of a system or of a device, can be done until there is a
19

reexamination. Here, the Secretary did not reexamine the County’s two voting 

devices before she decertified them.

12

Here, both parties argue the merits of their respective actions, but these 

arguments are premature. For purposes of the Secretary’s demurrer, it is irrelevant 

whether she had good cause to issue Directive 1 of 2021 and whether it will improve 

election security in Pennsylvania. Likewise, the statements in the Secretary’s

Preliminary Objections that Wake TSI had no election experience and that its 

imaging compromised “the security of the equipment” are irrelevant to the 

lawfulness of Directive 1. Preliminary Objections ¶6. These statements are also 

inappropriate because they contradict the allegations in the Amended Petition that 

Wake TSI was experienced, did not perform a “full technology forensic audit of the 

operating system or the EMS [(Election Management System)]” and in no way 

compromised the security of the County’s two voting devices. Amended Petition 

¶68. Only the factual allegations in the Amended Petition can and will be 

considered; they are binding on the Court in its analysis of the Secretary’s demurrer

to Count III. Buoncuore, 830 A.2d at 661. The Secretary’s contrary statements 

belong in an answer and new matter; they have no place in a demurrer. 

The Secretary bases her demurrer to Count III of the Amended Petition

largely upon the Supreme Court’s holding in Banfield, 110 A.3d 155. In Banfield, 

24 qualified registered electors instituted a mandamus action against the Secretary

of the Commonwealth, requesting that the Secretary be ordered to revoke her 

approval of direct recording electronic voting systems. The Supreme Court held that 

the Secretary’s decision to approve an electronic voting system involved the exercise 

of discretion and, as such, was beyond the reach of a writ of mandamus. In so 

12 The County notes that, in any case, because only one voting device was ever used, her 

decertification letter was overbroad in scope. Amended Petition ¶48, n.1.
20

holding, the Supreme Court observed that the Secretary is “Pennsylvania’s chief 

election official.” Id. at 174. See also National Election Defense Coalition v. 

Boockvar, 266 A.3d 76, 96-98 (Pa. Cmwlth. 2021) (overruling Secretary’s demurrer 

to a challenge by electors to the Secretary’s refusal to disapprove an electronic voting 

system).

Banfield did not concern “instructions or directives” issued under 

Section 1105-A(a) of the Election Code. Rather, Banfield concerned a quasiadjudicatory decision with respect to a discrete electronic voting system. The 

“fraudulent, in bad faith, an abuse of discretion or clearly arbitrary” standard was 

recited in the context of a demurrer to a mandamus action. Banfield, 110 A.3d at 

175. As the Supreme Court explained, “[w]here 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.” Id. (quoting Pennsylvania 

State Association of County Commissioners v. Commonwealth, 681 A.2d 699, 701-

02 (Pa. 1996)). The Supreme Court’s passing description of the Secretary as 

Pennsylvania’s “chief election official” is obiter dictum. Banfield, 110 A.3d at 174. 

Regardless, this description does not answer the question of whether the Secretary 

can supervise the county boards of elections in the way they perform their duties 

under Section 302 of the Election Code. Banfield is inapposite.

Any statutory construction exercise begins with careful examination of 

the words actually chosen by the legislature. See 1 Pa. C.S. §1921(b); 

Commonwealth v. Shiffler, 879 A.2d 185, 189 (Pa. 2005) (“[T]he best indication of 

legislative intent is the plain language of the statute.”) (quotation omitted). “In 

ascertaining the plain meaning of statutory language, we consider it in context and 
21

give words and phrases their ‘common and approved usage.’” In re Canvassing 

Observation, 241 A.3d 339, 349 (Pa. 2020) (quoting Commonwealth by Shapiro v. 

Golden Gate National Senior Care, LLC, 194 A.3d 1010, 1027-28 (Pa. 2018)). 

“Consistent with these principles, when construing a statute ‘we must listen 

attentively to what the statute says, but also to what it does not say.’” In re 

Canvassing Observation, 241 A.3d at 349 (quoting Discovery Charter School v. 

School District of Philadelphia, 166 A.3d 304, 321 (Pa. 2017)).

Section 1105-A(a) of the Election Code authorizes the Secretary to 

issue “directives or instructions,” not “regulations,” with respect to the 

“implementation of electronic voting procedures and for the operation of electronic 

voting systems.” 25 P.S. §3031.5(a). Notably, the directive authorization is limited 

to subsection (a), which concerns the examination and reexamination of electronic 

voting systems. The directive authorization does not apply to the entirety of Section 

1105-A as a stand-alone subsection. The question, then, is to what end may the 

Secretary issue a directive about electronic voting systems. 

Subsection (a) relates solely to the procedures by which a vendor may 

seek approval of its electronic voting system. In that context, directives and

instructions are appropriate to instruct vendors on how to succeed in their quest for 

the Secretary’s approval.

13

 Such directives have an analog in government 

procurement. A government agency invites requests for proposal (RFP) from 

contractors seeking to do work for the government. In this invitation, the agency 

sets forth detailed terms, or directives, on how to submit a proposal and the agency’s 

performance expectations. See, e.g., Dragani v. Borough of Ambler, 37 A.3d 27, 31 

(Pa. Cmwlth. 2012) (bidder or offeror must strictly comply with terms of an RFP in 

13 Electors seeking a reexamination would also use the Secretary’s directives or instructions but to 

look for a deviation therefrom.
22

order to be awarded a contract); Gaeta v. Ridley School District, 788 A.2d 363, 364 

(Pa. 2002) (invitation to bid set forth instructions on date and time of submission, 

bid bonds and surety quality in addition to bid amount for construction of school).

Here, the Secretary reads her authority to issue a “directive” as an end 

in itself, i.e., as a grant of power to regulate county boards of elections. So long as 

her publication is called a “directive” and says something about electronic voting 

systems, or voting devices, it is authorized. There are several impediments to this 

proffered legal position.

First, Section 1105-A of the Election Code refers repeatedly to 

electronic voting systems and only once to voting devices, in subsection (b).14 

Nowhere does Section 1105-A use the word certification or decertification. 

Likewise, it does not authorize the Secretary’s approval of a county board’s voting 

device, let alone its disapproval. Subsection (a) does not mention county boards of 

elections, only electors and vendors and other persons desirous of getting an 

electronic voting system on (or off) the Secretary’s approved list.

Second, the legislature has not conferred rulemaking power upon the 

Secretary anywhere in the Election Code. By contrast, the legislature has expressly

vested county boards of elections with this power. See Sections 1111(c) and 1110-

A(d) of the Election Code, 25 P.S. §§3011(c), 3031.10(d)15 (stating that county 

boards may make reasonable rules and regulations concerning the conduct of 

political party representatives present during election preparation). Unlike a 

management directive, a regulation has general application and has the force and 

effect of law. Corman, 266 A.3d at 462. 

14 Subsection (b) also refers to “components” of electronic voting systems as well as “voting 

devices” and “automatic tabulating equipment.” 25 P.S. §3031.5(b).

15 Added by the Act of July 11, 1980, P.L. 600.
23

Third, the Secretary does not explain why she may regulate the county 

boards’ handling of their voting devices when Section 1105-A(a) authorizes her 

approval, or disapproval, of entire systems.16 Instead, the Secretary treats “systems” 

and “devices” as interchangeable words, in derogation of their statutory definitions. 

Notably, Section 1104-A(a) of the Election Code17 requires counties to acquire and 

install “components of an electronic voting system of a kind approved” by the 

Secretary. 25 P.S. §3031.4(a) (emphasis added). Section 1104-A supports the 

County’s view that the Secretary may issue instructions or directives about systems

or types, not individual voting devices or “components.” 

Fourth, subsection (a) relates exclusively to the procedures by which an 

electronic voting system can be approved or subsequently disapproved. It does not 

provide a substantive standard for the examination and approval of a system. It 

merely requires the applicant vendor to comply with federal standards, if any, as a 

precondition to requesting the Secretary’s examination.

Subsection (b) does contain a substantive standard in that it requires the 

Secretary’s report on the examined and approved system to attest that the system

“can be safely used by voters at elections.” Section 1105-A(b) of the Election Code, 

25 P.S. §3031.5(b). Safe use has been the standard for every manner of voting 

machinery since at least 1937. See Section 1106(b) of the Election Code, 25 P.S. 

§3006(b). However, Section 1105-A(b) does not authorize or require the Secretary 

to issue “directives or instructions,” only “reports” that will guide the county boards,

inter alia, in their purchase of a sufficient number of components. 25 P.S. 

16 The Secretary does not address Section 207 of the Election Code, added by the Act of October 

31, 2019, P.L. 552, 25 P.S. §2627, which speaks to the disapproval of “voting apparatuses,”

presumably by the disapproval of a widely-used electronic voting system.

17 Added by the Act of July 11, 1980, P.L. 600.
24

§3031.5(b). It is noteworthy that the Secretary’s report on Dominion speaks to the 

county’s use of third-party vendors. See, e.g., Amended Petition, Ex. A at 44

(providing that any “data transfer between the vendor and county must be done using 

encrypted physical media or secure file transfer process”).

The Secretary’s insistence that the power to issue a directive has 

conveyed to her the power to regulate county boards of elections is a position that 

raises both procedural and substantive questions. It is beyond peradventure that an 

agency may exercise only those powers conferred by “clear and unmistakable 

language.” Aetna Casualty and Surety Company v. Insurance Department, 638 A.2d 

194, 200 (Pa. 1994) (quotation omitted). 

As the County points out, Section 1105-A must be read together with 

Section 302. “Every statute shall be construed, if possible, to give effect to all its 

provisions.” 1 Pa. C.S. §1921(a). Statutes that relate to the same subject “shall be 

construed together, if possible, as one statute.” 1 Pa. C.S. §1932(b). All provisions 

of the Election Code are in pari materia. In re Philadelphia County Board of 

Elections, 73 A.2d 34, 36 (Pa. 1950). 

Here, Section 302(g) of the Election Code obligates county boards of 

elections to “inspect systematically and thoroughly the conduct of primaries and 

elections in the several election districts of the county to the end that primaries and 

elections may be honestly, efficiently, and uniformly conducted.” 25 P.S. §2642(g). 

The Secretary argues that this provision does not address how the county boards are 

to inspect, and, thus, she believes that the county boards must follow her directives

with respect to inspection, or non-inspection, of electronic voting devices. 

Preliminary Objections ¶¶22-27; Secretary’s Brief at 14-15. The Secretary 

maintains that because Section 1105-A(a) is the specific and later-in-time provision,
25

it has superseded Section 302. Preliminary Objections ¶¶28-29; Secretary’s Brief at 

13-16. This interpretation, she argues, is entitled to deference. 

For its part, the County emphasizes that Section 1105-A(a) uses the 

permissive “may issue,” but Section 302 uses the mandatory “shall perform” with 

respect to a county board of elections’ duty to inspect voting equipment of all kinds, 

including its electronic devices. Inspections of election equipment are part and 

parcel of the Election Code. For example, Section 1230 of the Election Code, 25 

P.S. §3070, provides that a county board of elections must permit inspection of its 

voting machines “by direction of any legislative committee.” Even so, Directive 1 

of 2021 does not regulate the manner of the county boards’ inspections; rather, it 

effectively prohibits inspections altogether. 

We reject the Secretary’s claim that her view of the Election Code is 

entitled to deference. First, her construction of Section 1105-A(a) as superseding a

county board’s ability to inspect its voting devices is not consonant with her earlier

interpretation that was expressed in the 2016 and 2020 Guidances. An agency’s 

revision to its interpretation of a statute defeats its claim for deference. See Dauphin 

County Industrial Development Authority v. Pennsylvania Public Utility 

Commission, 123 A.3d 1124, 1135 (Pa. Cmwlth. 2015) (“An administrative agency 

may revise and correct its prior interpretation of a statute. However, it cannot expect 

that its later interpretation is entitled to very much deference”).

18 Second, the County 

can also claim to be entitled to deference with respect to its interpretation of Section 

302. It is the government agency charged with its enforcement. The interpretation 

18 The Secretary neither acknowledges nor offers an explanation for the change between the 2016 

and 2020 Guidances and Directive 1 of 2021. See, e.g., Sacred Heart Medical Center v. Sullivan, 

958 F.2d 537, 544 (3d Cir. 1992) (agency must offer a “reasoned justification” for change in its 

statutory interpretation or policy modification).
26

of a statute is, in any case, the prerogative of the judiciary. Crown Castle NG East 

LLC v. Pennsylvania Public Utility Commission, 234 A.3d 665, 679-80 (Pa. 2020). 

In her claim of regulatory authority over the county boards of elections,

the Secretary has not engaged with the text and structure of Section 1105-A of the 

Election Code. This omission, in itself, prevents a ruling in her favor on her 

demurrer to Count III. When also considering a county board of elections’

independent duties under the Election Code, we cannot say with certainty at this 

juncture that Count III does not state a claim. The Secretary asks the Court to take 

the entire subject matter of electronic voting systems out of the County’s purview, 

but she does so without providing the Court a careful reading of the Election Code. 

Limitations on the County’s power, if any, will become evident in the course of the 

Court’s consideration of Counts I and II, and Count III. We may sustain a

preliminary objection only if it is certain that the County’s challenge to Directive 1

of 2021 fails as a matter of law. The Secretary’s legal position leaves many doubts. 

Conclusion

Tampering with election equipment of any kind is a grave matter. 

Whether prevention thereof is the responsibility of the Secretary or of the county 

boards of elections, or both, is not clear. Both are government agencies created by 

the General Assembly with discrete and separate roles to fulfill toward the end of 

honest elections in Pennsylvania. Both agencies are presumed to act lawfully and 

reasonably in the exercise of their statutory duties. Pennsylvania Retailers’ 

Associations, Reliable, Inc. v. Lazin, 426 A.2d 712, 717 (Pa. Cmwlth. 1981). The 

county boards of elections are not bureaus within the Department of State subject to 

management by the Secretary of the Commonwealth. They are separate and standalone government agencies.
27

Concluding that the Secretary’s legal position faces many hurdles, we 

overrule the Secretary’s preliminary objection to Count III of the Amended Petition. 

____________________________________________

 MARY HANNAH LEAVITT, President Judge Emerita

Judge Wallace did not participate in the decision of this case.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

County of Fulton, Fulton County Board :

of Elections, Stuart L. Ulsh, in his :

official capacity as County :

Commissioner of Fulton County and :

in his capacity as a resident, taxpayer :

and elector in Fulton County, and Randy :

H. Bunch, in his official capacity as : No. 277 M.D. 2021

County Commissioner of Fulton County : 

and in his capacity as a resident, :

taxpayer and elector of Fulton County, :

Petitioners :

v. :

:

Secretary of the Commonwealth, :

Respondent :

 O R D E R

AND NOW, this 23rd day of May, 2022, the preliminary objection filed 

by the Secretary of the Commonwealth in the above-captioned matter is hereby 

OVERRULED. The Secretary of the Commonwealth shall file an answer to the 

amended petition for review within thirty (30) days of the date of this order. 

 ____________________________________________

 MARY HANNAH LEAVITT, President Judge Emerita