Protect Our Vote Coalition: The Voting Machine Decision Was & Is Invalid

On February 20, Philadelphia City Commissioners chose to ignore the advocacy of grassroots organizations in Philadelphia and select the ES&S ExpressVoteXL as the city’s new voting machine, their favored vendor from the start of the drafting of their Request for Proposal, without serious considerations about security, handicapped access, and the use of unreadable barcodes to actually count the votes.

The Protect Our Vote Coalition - Citizens for Better Elections, Huddle Up Philly, Indivisible Philly, MarchOnHarrisburg, Neighborhood Networks, and other organizations, continues to challenge this failure of democracy by pursuing legal options to halt the selection of the ExpressVote XL.

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On Wednesday, March 6, members of the Protect Our Vote Coalition testified at the Board of Elections regularly scheduled Sunshine Meeting to present our argument the voting machines decision was and is invalid.

During the meeting, we discussed the various procedural and legal failings of the decision.

March 6 Board of Elections Sunshine Meeting   Credit: Jose Moreno Inquirer Staff Photographer

March 6 Board of Elections Sunshine Meeting

Credit: Jose Moreno Inquirer Staff Photographer

The procurement was supposed to use Best Value procurement guidelines which state: avoid favoritism, avoid ethical misconduct, provide a fair, equal & competitive, proposal process, promote transparency & keep all information obtained throughout the process confidential.

That didn’t happen. 

Nor did the voting machine acquisition process “promote transparency”. The City Commissioners launched an Request for Proposal over the holidays in November with an exceptionally short timeline. They waited a month and a half before convening the only two very short-notice public meetings on the subject. They provided no information on their website, not even a link to the RFP.

Contrary to other counties, they held no public demonstrations of the systems under consideration and demonstrated no real interest in transparency or public feedback.

In short:

  • No information on the voting systems or the RFP was posted online

  • No public information was made available about any of the voting systems

  • No public hearings or applicant demos on the eligible voting systems

  • No listing of which voting systems were being considered

Philadelphia’s City Controller, Rebecca Rhynhart,  wrote a letter on February 8th to express her concerns over the lack of transparency, lack of public engagement, and lack of expert input. She wrote:

"...an important component of Best Value is transparency. Residents need to receive the information from the City necessary to be comfortable that the process followed will lead to the best possible outcome for them. Otherwise, the flexibility provided by Best Value could be used to select vendors not in the best interest of taxpayers, but to support the interests of those in power."

Pennsylvania’s Auditor General, Eugene DePasquale,  has also raised concerns about transparency and the clear bias towards a particular vendor. On February 20 he said, “I still have serious concerns about the process that led to today's commission vote and I urge City Council to review it carefully.”

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It’s important to remember that Philadelphia is an outlier in this process. We brought a map with us to the meeting to illustrate:

  • 23 counties in dark green have selected or already own #HandmarkedPaperBallot systems.

  • 6 counties in light green have indicated that they are likely to select hand-marked paper ballot systems.

  • 4 counties in red have chosen touchscreens for all voters.

  • 3 light red counties retain the option to switch to hand-marked paper ballots in the future.

  • Grey counties are undecided.

Philadelphia is the ONLY county locked into a touchscreen system.

However, what is most damning about this process is the Commissioners’ own conflict of interest and ineligibility to sit on the board.

At the time of the vote, two City Commissioners were working on their re-election and had a direct, major conflict of interest. Because any time taken on the selection process would be subtracted from their time to campaign, they rushed the selection process. This deadline was solely for the benefit of the Commissioners. They were also conflicted in that they were voting to approve the very system that would be running (assuming they win nominations in Ma,) to keep their own salaries and benefits. This is exactly the kind of conflict that the Pennsylvania Election Code seeks to avoid. Section 301(c) states clearly:

Whenever a member of the board of county commissioners is a candidate for nomination or election to any public office, the President Judge of the Court of Common Pleas shall appoint a judge or an elector of the county to serve in his stead.

Additionally, those same City Commissioners were ineligible to sit on the Board.

With campaign committees and receiving many contributions already, Commissioners Deeley and Schmidt were already candidates as defined by state law, under the Pennsylvania Ethics Act, section 1102. They could have, and should have, requested to be replaced as required by Section 301 of the Pennsylvania Election Code before they started voting as members of the Board of Elections. They did not.

In the days after the vote was taken, Deeley and Schmidt were removed from the Board. Both of them filed their candidates paperwork with the Philadelphia Board of Ethics, Deeley on the 21st and Schmidt on the 25th. Of course, they did not decide to run for re-election just then. They did not just at that moment realize they were candidates. They knew, as the public knew and as their donors certainly knew, that they were candidates well before February 20. They simply delayed their requests to be replaced until after the vote on this purchase.

To pretend that they were not already candidates at the time they voted is to make a mockery of the law. As candidates, Deeley and Schmidt were not eligible to serve as Board of Elections members. The February 20 vote was and is invalid.


We believe that it’s the duty of the Board of Elections to acknowledge as improper and invalid the approvals made on February 20 and to do so at the earliest opportunity, so that a procurement process that meets the requirements of the law commence as soon as possible.
— Rich Garella, member of the Protect Our Vote Coalition

The Protect Our Vote Coalition will continue to pursue legal action regarding the acquisition of new voting machines for Philadelphia.

Rachel Murphy