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PA Commonwealth Court Decides to Deny Access to CVRs

Updated: Apr 2

"AND NOW, this 4th day of March, 2024, it is hereby ORDERED that the Court of Common Pleas of Lycoming County’s December 16, 2022 order is REVERSED."



Read why CVRs could be dangerous for the PA Department of State and Chester County: Fingerprints of Fraud.



The most tightly argued section of the decision follows:

II. Discussion

Secretary presents two arguments for our consideration, which we summarize as follows.6 First, Common Pleas erred by concluding that Section 308 of the Election Code is ambiguous. To the contrary, Section 308’s plain language exempts CVRs from disclosure for three reasons: (a) a CVR is the electronic, modern-day equivalent of all voted ballots contained in a ballot box; (b) EVSs like the optical scanners used by Lycoming County qualify as voting machines under the Election Code, and CVRs are the contents of those EVSs; and (c) reading Section 308 to exempt CVRs from disclosure is consistent with other provisions of the Election Code that only authorize public access to the contents of ballot boxes and voting machines upon allegations of error or fraud. Secretary’s Br. at 14-20. Second, even if Common Pleas correctly concluded that Section 308 was ambiguously worded, the lower court still erred by failing to give deference to the Department’s interpretation of the statute, which was that CVRs constitute the modern version of ballot box contents, as well as that optical scanners like the ones used to record votes in Lycoming County are the modern equivalent of voting machines. Id. at 20-25.


Generally speaking, the purpose of the RTKL is “to promote access to official government information in order to prohibit secrets, scrutinize the actions of public officials[,] and make public officials accountable for their actions.” Off. of Governor v. Raffle, 65 A.3d 1105, 1107 n.1 (Pa. Cmwlth. 2013). Accordingly, local agencies are statutorily required to “provide public records [to individuals who request them] in accordance with [the RTKL].” Section 302(a) of the RTKL, 65 P.S. § 67.302(a). However, that does not mean that all local agency records are “public” and eligible for dissemination upon request. Per Section 305(a) of the RTKL:


A record in the possession of a Commonwealth agency or local agency shall be presumed to be a public record. The presumption shall not apply if:

. . . .

(3) the record is exempt from disclosure under any other [f]ederal or [s]tate law or regulation or judicial order or decree.


65 P.S. § 67.305(a); accord Section 102 of the RTKL, 65 P.S. § 67.102 (defining “public record” in relevant part as “[a] record, including a financial record, of a Commonwealth or local agency that . . . (2) is not exempt from being disclosed under any other [f]ederal or [s]tate law or regulation or judicial order or decree”). In other words, the RTKL’s presumption that all records possessed by a local or state agency are public in nature, and are thus disclosable to a requester, yields where a statutory exemption exists for a certain kind of record.


Secretary, through his first argument, posits that Section 308 of the Election Code establishes such an exemption regarding public disclosure of CVRs. This assertion presents a pure question of statutory interpretation; thus, “our standard of review [here] is de novo, and our scope of review is plenary and non-deferential.” Crown Castle NG E. LLC v. Pa. Pub. Util. Comm’n, 234 A.3d 665, 674 (Pa. 2020).


The object of statutory construction is to ascertain and effectuate legislative intent. 1 Pa. C.S. § 1921(a). In pursuing that end, we are mindful a statute’s plain language generally provides the best indication of legislative intent. See Com[.] v. McClintic, . . . 909 A.2d 1241 ([Pa.] 2006). Thus, statutory construction begins with examination of the text itself. [Se.] Pa. Transp. Auth. v. Holmes, 835 A.2d 851 (Pa. Cmwlth. 2003).


In reading the plain language of a statute, “[w]ords and phrases shall be construed according to rules of grammar and according to their common and approved usage.” 1 Pa. C.S. § 1903(a). Further, every statute shall be construed, if possible, to give effect to all its provisions so that no provision is “mere surplusage.” 1 Pa. C.S. § 1921(a).


Moreover, although we must “listen attentively to what a statute says[,] [o]ne must also listen attentively to what it does not say.” Kmonk-Sullivan v. State Farm Mut. Auto. Ins. Co., . . . 788 A.2d 955, 962 ([Pa.] 2001). We may not insert a word the legislature failed to supply into a statute. Girgis v. Bd. of Physical Therapy, 859 A.2d 852 (Pa. Cmwlth. 2004).


Malt Beverages Distribs. Ass’n v. Pa. Liquor Control Bd., 918 A.2d 171, 175-76 (Pa. Cmwlth. 2007). “When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” 1 Pa. C.S. § 1921(b). “However, if we deem the statutory language ambiguous, we must then ascertain the General Assembly’s intent by statutory analysis, wherein we may consider numerous relevant factors.” Bowman v. Sunoco, Inc., 65 A.3d 901, 906 (Pa. 2013) (citing 1 Pa. C.S. § 1921(c)). “An ambiguity exists when language is subject to two or more reasonable interpretations and not merely because two conflicting interpretations may be suggested.” Tri-Cnty. Landfill, Inc. v. Pine Twp. Zoning Hearing Bd., 83 A.3d 488, 510 (Pa. Cmwlth. 2014). Regardless of whether a statute is deemed ambiguous or not, our rules of construction forbid a court from adopting an interpretation that will produce “a result that is absurd, impossible of execution[,] or unreasonable.” 1 Pa. C.S. § 1922(1). Furthermore,


[w]hen construing one section of a statute, courts must read that section not by itself, but with reference to, and in light of, the other sections. Com. v. Mayhue, 639 A.2d 421, 439 (Pa. 1994). Statutory language must be read in context, “together and in conjunction” with the remaining statutory language. [Pa. Gaming Control Bd.] v. Off. of Open Recs., 103 A.3d 1276, 1284-85 (Pa. 2014) (citing Bd. of Rev. of Taxes, City of Phila. v. City of Phila., 4 A.3d 610, 622 (Pa. 2010)).

. . . .

A fundamental principle in statutory construction is that we must read statutory sections harmoniously. Off. of Open Recs., 103 A.3d at 1284-85. Parts of a statute that are in pari materia, i.e., statutory sections that relate to the same persons or things or the same class of persons and things, are to be construed together, if possible, as one statute. 1 Pa. C.S. § 1932. “If they can be made to stand together, effect should be given to both as far as possible.” Off. of Open Recs., 103 A.3d at 1284 (quoting Kelly v. City of Phila., 115 A.2d 238, 245 (Pa. 1955)). In ascertaining legislative intent, statutory language is to be interpreted in context, with every statutory section read “together and in conjunction” with the remaining statutory language, “and construed with reference to the entire statute” as a whole. Bd. of Rev. of Taxes, 4 A.3d at 622. We must presume that in drafting the statute, the General Assembly intended the entire statute, including all of its provisions, to be effective. 1 Pa. C.S. § 1922. Importantly, this presumption requires that statutory sections are not to be construed in such a way that one section operates to nullify, exclude or cancel another, unless the statute expressly says so. Cozzone ex rel. Cozzone v. Workers’ Comp. Appeal Bd. (PA Mun[.]/E[.] Goshen Twp.), 73 A.3d 526 (Pa. 2013); Off. of Open Recs., 103 A.3d at 1284-85.


Tr. Under Agreement of Taylor, 164 A.3d 1147, 1155, 57 (Pa. 2017).


Turning to Section 308 of the Election Code, this statute reads as follows, in full:


The records of each county board of elections, general and duplicate returns, tally papers, affidavits of voters and others, nomination petitions, certificates and papers, other petitions, appeals, witness lists, accounts, contracts, reports and other documents and records in its custody, except the contents of ballot boxes and voting machines and records of assisted voters, shall be open to public inspection, except as herein provided, and may be inspected and copied by any qualified elector of the county during ordinary business hours, at any time when they are not necessarily being used by the board, or its employes having duties to perform thereto: Provided, however, That such public inspection thereof shall only be in the presence of a member or authorized employe of the county board, and shall be subject to proper regulation for safekeeping of the records and documents, and subject to the further provisions of this act: And provided further, That general and duplicate returns, tally papers, affidavits of voters and others, and all other papers required to be returned by the election officers to the county board sealed, shall be open to public inspection only after the county board shall, in the course of the computation and canvassing of the returns, have broken such seals and finished, for the time, their use of said papers in connection with such computation and canvassing.


25 P.S. § 2648 (emphasis added). Thus, by its plain language and with relevance to this case, Section 308 exempts from public disclosure “the contents of ballot boxes and voting machines[.]” Id.


Secretary does not dispute Common Pleas’ observation that the term “ballot boxes” is not specifically defined in the Election Code, or that this phrase, when defined according to its commonly understood meaning and applied to this situation, clearly refers to the sealed bags that catch ballots after they have been scanned. He, however, challenges Common Pleas’ conclusion that “voting machines,” as used in Section 308, does not encompass EVSs like the ones used in Lycoming County, as well as Common Pleas’ determination that CVRs do not constitute the “contents” of those voting machines or of the ballot boxes.


We agree. Admittedly, the Election Code is not a model of clarity with regard to establishing what constitutes a “voting machine.” This term is not specifically defined therein, even though it is used throughout in both single and plural form, and despite the fact that the General Assembly titled an entire article of this law as “Voting Machines.” Tit. 25 P.S., Ch. 14, Art. XI, Sections 1101-18 of the Election Code, 25 P.S. §§ 3001-3018; see, e.g., Sections 404, 414, 530, 1216-17, 1226-27, 1230, 1404, 1702-03, 1818, 1824, and 1830 of the Election Code, 25 P.S. §§ 2674, 2684, 2730, 3056-57, 3066-67, 3070, 3154, 3262-63, 3518, 3524, 3530. Nor is the relationship between EVSs and voting machines, or lack thereof, straightforwardly apparent from the Election Code’s text. Article XI-a of the Election Code, which specifically pertains to EVSs, contains what appears to be contradictory language on this point. On one hand, this article includes multiple references that suggest that such machines are components of EVSs. See Section 1105-A of the Election Code, 25 P.S. § 3031.5(b)7 (emphasis added) (stating in relevant part: “With respect to any [EVS] 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.”); Section 1108-A of the Election Code, 25 P.S. § 3031.88 (provision titled “Payment for machines” that requires “[t]he county commissioners or such other authority as levies the taxes for county purposes of any county which adopts an [EVS to], upon the purchase, lease or other procurement thereof, provide for payment therefor by the county”); Section 1112-A of the Election Code, 25 P.S. § 3031.129 (emphasis added) (stating, in relevant part: “When the votes for presidential electors are counted [in voting districts that use EVSs], the votes appearing upon the counter or registering device corresponding to the ballot label containing the names of the candidates for President and Vice-President of any party or body shall be counted as votes for each of the candidates for presidential elector of such party or body, and thereupon all candidates for presidential elector shall be credited, in addition, with the votes cast for them upon the ballots deposited in the machine, as provided in this section.”); Section 1120-A(b) of the Election Code, 25 P.S. § 3031.20(b)10 (emphasis added) (stating in relevant part: “If any electronic voting system or any component thereof being used in any election shall become inoperable during such election, it shall, if possible, be repaired or another machine substituted by the custodian or county board of elections as promptly as possible[.]”). On the other hand, this article also expressly mandates that “[u]pon the installation of an electronic voting system in any election district, the use therein of paper ballots and of voting machines shall be discontinued, except as otherwise provided herein.”


Section 1104-A of the Election Code, 25 P.S. § 3031.411 (emphasis added). The same inconsistency is also present elsewhere in the Election Code. Some portions indicate that an EVS is a type of voting machine, or that the two terms are effectively synonymous. See Sections 1702 and 1703 of the Election Code, 25 P.S. §§ 3262-63 (Section 1702 mentions petitions for recanvassing votes cast via voting machines, without making reference to EVSs, but Section 1703 establishes that Section 1702 petitions can be filed regarding votes cast through EVSs or voting machines). Others, however, imply that EVSs and voting machines may, in fact, be entirely different kinds of apparatuses. See Section 1404(e) of the Election Code, 25 P.S. § 3154(e) (setting forth three slightly different vote recanvass and recount procedures, the precise applicability of each depending on whether a given election district used “voting machines,” “paper ballots other than those used in conjunction with an [EVS],” or “an [EVS] utilizing paper ballots,” while also specifying that, where an election district used “any other type of [EVSs],” a vote recanvass or recount must be conducted in a manner “similar to the procedure specified in [25 P.S. § 3154(e)(1)] for voting machines”).


These impediments are not insurmountable for us, however. “Where a term is not [statutorily] defined, . . . ‘words and phrases shall be construed according to rules of grammar and according to their common and approved usage.’” P.R. v. Pa. Dep’t of Pub. Welfare, 759 A.2d 434, 437 (Pa. Cmwlth. 2000). “In ascertaining the common and approved usage or meaning, a court may resort to the dictionary definitions of the terms left undefined by the legislature.” Mountz v. Columbia Borough, 260 A.3d 1046, 1050 n.4 (Pa. Cmwlth. 2021) (quoting Leventakos v. Workers’ Comp. Appeal Bd. (Spyros Painting), 82 A.3d 481, 484 n.4 (Pa. Cmwlth. 2013)). Generally speaking, Merriam-Webster defines “machine” as “a mechanically, electrically, or electronically operated device for performing a task.”12 Therefore, a “voting machine” can be described as a device of this nature that is designed to allow for the performance of that specific task (i.e., voting). Furthermore, “voting machine” has itself been defined in common parlance with some specificity. Merriam-Webster describes it as follows: “a mechanical device for recording and counting votes cast in an election.”13 Similarly, the Cambridge Dictionary states that a “voting machine” is “a machine used to automatically record and count votes in an election.”14 Even more precisely, the United States Election Assistance Commission (EAC)15 describes a “voting machine” as “[t]he mechanical, electromechanical, and electric components of a voting system that the voter uses to view the ballot, indicate his/her selections, and verify those selections. In some instances, the voting machine also casts and tabulates the votes.”16


The question then becomes whether the components of Lycoming County’s EVS constitute “voting machines.” Section 1101-A of the Election Code defines an EVS 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. “Automatic tabulating equipment” is defined in that same part of the Election Code as “any apparatus which automatically examines and computes votes registered on paper ballots, ballot cards[,] or district totals cards or votes registered electronically and which tabulates such votes.” Id. “Voting device” is also defined therein 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 electronically, so that in either case the votes so registered may be computed and tabulated by means of automatic tabulating equipment.


Id. Applying these three definitions to the matter-at-hand, it is evident that the optical scanners used by Lycoming County, which receive filled-out paper ballots, scan the votes recorded thereon, and transmit the results to a database, are voting devices that contain automatic tabulating equipment, and which are part of Lycoming County’s EVS. These voting devices are undoubtedly mechanical, electrical, electromechanical, or electronic components of a voting system that are specifically used for the task of voting, including with regard to the casting and tabulation of votes. Therefore, these devices also fit the generally understood definition of “voting machines.”


Again, we recognize that the General Assembly has directed, via Section 1104-A of the Election Code, that “[u]pon the installation of an [EVS] in any election district, the use therein of paper ballots and of voting machines shall be discontinued, except as otherwise provided herein.” 25 P.S. § 3031.4. We also remain cognizant, however, that we must endeavor to harmonize seemingly inconsistent statutory language, within reason, to the fullest possible extent. Taylor, 164 A.3d at 1157. As noted supra, Article XI-a includes multiple references suggesting that machines are components of EVSs. Tit. 25 P.S., Ch. 14, Art. XI-a. In addition, Section 1702 and 1703, when read together, indicate that “EVS” is synonymous with “voting machine” under the Election Code. See 25 P.S. §§ 3262-63. We therefore come to two conclusions. First, the General Assembly’s usage of the term “voting machines” in the Election Code is beset by inconsistencies and poor draftsmanship. Second, we must read Section 1104-A’s reference to voting machines as pertaining to mechanical devices used in the voting process, but not to similarly deployed electronic devices, in order to harmonize those inconsistencies and to allow for the Election Code’s provisions to be given the fullest effect possible.17 In other words, we hold that EVS components that are used directly in the processing and recordation of votes must also be considered voting machines under the Election Code.


As for the meaning of “contents,” that word is not defined in the Election Code either. Per Merriam-Webster, though, it means “something contained.”18 CVRs thus qualify as “contents” under the Election Code, regardless of whether the container holding the CVRs is deemed to be a voting machine or a ballot box. Common Pleas, however, essentially found that the CVR in this instance was digitally equivalent to the information recorded on physical ballots, but narrowly construed Section 308’s usage of “contents” as only “refer[ring] to voted ballots physically deposited into ballot boxes and the mechanical inner workings of voting machines, rather than the information ‘contained’ in those physical items.” Common Pleas Op., 12/16/22, at 68; see id. (“Only three such things have been made inaccessible: the contents of ballot boxes, the contents of voting machines, and the records of assisted voters. The [General Assembly] did not exempt records that were the ‘equivalents’ or ‘analog[ue]s’ of those things from public access.”). We find that interpretation flawed for two reasons. First, the voting machines used by Lycoming County compiled recorded votes in digital form, rather than physical. Thus, the machines had no “contents” beyond those digitized records, i.e., the CVR. Second, it may appear at first blush that Section 308 is ambiguous in this context, in that it is not clear whether the ballot boxes’ “contents” are just the physical ballots themselves or also include the voting data from those ballots. However, this apparent ambiguity disappears by virtue of Common Pleas’ effective determination that the CVR is digitally equivalent to those physical ballots. It would produce an absurd result if physical ballots were protected from public disclosure, but digital analogues of those very same ballots were freely available upon request, as what is special about the ballots is not so much the form which they take, but the voting information which they contain. Consequently, Common Pleas erred by ruling that the word “contents” was ambiguous in this instance, that the CVR was not the contents, in digital form, of ballot boxes and voting machines, and that the CVR was thus not exempt from public disclosure.


 

6 “When[, as here,] the court of common pleas is the ‘Chapter 13’ or reviewing court, our

appellate review is limited to whether the trial court has committed an error of law and whether

the findings of fact are supported by substantial evidence.” Off. of the Dist. Att’y of Phila. v.

Bagwell, 155 A.3d 1119, 1123 n.3 (Pa. Cmwlth. 2017) (citing Twp. of Worcester v. Off. of Open

Recs, 129 A.3d 44, 49 n.2 (Pa. Cmwlth. 2016)).


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

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

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

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

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


(last modified Feb. 14, 2024).


13 Voting machine, MERRIAM-WEBSTER, https://www.merriam-webster.com/

dictionary/voting%20machine (last modified Feb. 3, 2024).


14 Voting machine, CAMBRIDGE DICTIONARY, https://dictionary.cambridge.org/us/

dictionary/english/voting-machine (last visited Mar. 1, 2024).


15 The EAC was established by the Help America Vote Act of 2002 (HAVA)[,

42 U.S.C. §§ 15301-15545]. The EAC is an independent, bipartisan

commission charged with developing guidance to meet HAVA

requirements, adopting voluntary voting system guidelines, and

serving as a national clearinghouse of information on election

administration. The EAC also accredits testing laboratories and

certifies voting systems, as well as audits the use of HAVA funds.

Other responsibilities include maintaining the national mail voter

registration form developed in accordance with the National Voter

Registration Act of 1993[, 52 U.S.C. §§ 20501-20511].

HAVA established the Standards Board and the Board of Advisors

to advise the EAC. The law also established the Technical

Guidelines Development Committee to assist the EAC in the

development of voluntary voting system guidelines.

The four EAC commissioners are appointed by the president and

confirmed by the U.S. Senate. The EAC is required to submit an

annual report to Congress as well as testify periodically about

HAVA progress and related issues. The [EAC] also holds public

meetings and hearings to inform the public about its progress and

activities.

About, EAC, https://www.eac.gov/about (last visited Mar. 1, 2024).


16 Glossary of Election Terminology, EAC (July 16, 2021),


17 We also note that our Court, in a single-judge opinion issued in another matter, recently

ruled that electronic devices do not constitute voting machines under the Election Code. See In re

Recount of Berks Cnty. Gen. Election of Nov. 8, 2022, 296 A.3d 64, 77 (Pa. Cmwlth.) (single-

judge op.) (Wallace, J.), aff’d 297 A.3d 687 (Pa. 2023). However, the analysis in that matter did

not address the meaning of “voting machines” with the same level of detailed analysis that we

have in this matter, but merely predicated that conclusion upon a smattering of cases that also did

not contain thorough analyses of this term’s meaning. See id. (citing and quoting Banfield v.

Cortes, 110 A.3d 155, 170 (Pa. 2015); Dayhoff v. Weaver, 808 A.2d 1002, 1010 n.21 (Pa. Cmwlth.

2002); and In re Gen. Election for Twp. Supervisor of Morris Twp., Wash. Cnty., 620 A.2d 565,

568-69 (Pa. Cmwlth. 1993)). Given this, as well as the fact that the Supreme Court’s per curiam

affirmance of Berks County only pertained “to [its] interpretation of Sections 1701 and 1703 of

the Election Code, 25 P.S. §§ 3261, 3263, [(which relate to petitions requesting a vote recount),]”

In re Recount of Berks Cnty. Gen. Election of Nov. 8, 2022, 297 A.3d 687, 688 (Pa. 2023), we

overrule the single-judge Berks County opinion to the very limited extent that it stands for the

proposition that electronic devices cannot be voting machines for purposes of the Election Code.

See Com. v. Tilghman, 673 A.2d 898, 904 (Pa. 1996) (in instances where Supreme Court affirms

lower court decision via per curiam order, Supreme Court endorses rationale underpinning that

decision only to extent higher tribunal affirms on express basis of opinion issued by lower court).


(last modified Feb. 10, 2024).


 



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