A lawsuit filed Jan. 6 in Westmoreland County claims the state needs to let voters vote on which new voting machines they'll get to use in this spring's primary and beyond.
The 11 plaintiffs, who include state Sen. Jim Ferlo and long-time voters' rights activist Marybeth Kuznik of Penn Township, are suing Westmoreland's county commissioners and election officials for the right to follow state law. Commonwealth rules call for lever-pullers and paper ballot users to decide what electronic voting machines they will use in the future.
Federal law, however, includes no such provision, and county solicitor Mark Gesalman says the state is trumped by federal law -- specifically the Help America Vote Act of 2002, which is forcing counties everywhere to modernize their balloting to avoid vote-counting fiascos like those during the 2000 presidential election. Department of State spokesperson Brian McDonald says the Commonwealth has repeatedly instructed counties to ignore state law in favor of federal provisions.
Although Westmoreland hasn't yet signed a contract to purchase new machines, commissioners voted on Dec. 29 to buy the iVotronic machine from Election Systems and Software, a Nebraska company. That vote prompted protests from Kuznik's group and, eventually, this lawsuit.
Though it has joined a consortium of local counties seeking the best voting-machine price, Allegheny County has not yet settled on a machine to buy.
The plaintiffs, represented by Leechburg attorney Chuck Pascal, will be in court on Wed., Jan. 11, seeking an injunction to prevent Westmoreland from moving forward with its purchase.
Pascal knows of no Pennsylvania county putting its choice to a vote, "and that's the problem," he says. He believes Indiana and Cambria are close to choosing machines too -- and close to attracting the same sort of lawsuit, based on conversations he has had with voting activists.
If the state and federal government had certified machines for purchase more quickly, he adds, that would have allowed such county referenda.
What riles the activists most, it appears, is the relative lack of public input on the choice of machine. In Westmoreland, voting-machine vendors brought their machines to be examined by a committee composed of election officials and citizens who worked the polls. In Allegheny County and others nearby, county officials gave the public a taste of each machine at demonstration fairs and in courthouse displays.
Westmoreland's solicitor expects county Judge William Ober to make the Department of State a defendant in the suit and bump it up to Commonwealth Court.