In Open Records Lawsuit, Department of State Frets About ‘Misinformation’ if Data is Released
(This article first appeared in Broad + Liberty)
In the uproar over election integrity in the wake of the 2020 election, governments across the country and the commonwealth have been put to the test, not simply in terms of basic election security, but with regard to transparency as citizen activists have leveraged open-records laws to dig far beneath the surface into how elections are conducted and votes counted.
One such case is before Pennsylvania’s Commonwealth Court, with a decision that could arrive any day.
Heather Honey, an elections researcher, filed a Right to Know request in Lycoming County seeking a copy of the “cast vote record,” from the electronic voting systems in that county for the 2020 election.
A U.S. Department of Commerce document says, “Simply put, a cast vote record (CVR) is an electronic record of a voter’s ballot selections, and its primary purpose is to provide a record of voter selections that can be counted in an efficient manner to produce election results.”
What’s critical to understand, however, is although the CVR “is an electronic record of a voter’s ballot selections,” it does not abrogate a voter’s right to a secret ballot. If the CVR could link a ballot to a voter, it would never have been approved for use in the first place, Honey says.
“The Department of State cannot claim that the voting system complies with the requirement for ballot secrecy but then claim that a report from that system would reveal the identity of the voter.”
“Once cast, a ballot cannot be linked back to a voter. So, a report showing the votes cast on a ballot certainly cannot be linked back to a voter. The county confirmed that the voting system manufacturers randomize the order of the records in the CVR report.”
In other words, even if you knew the order of each voter, the CVR maintains secrecy by scrambling the order of the ballots.
While the case contains a wealth of interesting nuggets for those fascinated by the granular details of election administration and computerized voting, the oral arguments also presented a more general issue of transparency, which began with a question from Judge Ellen Ceisler.
“Counsel, if these reports don’t have any identifying information, and they’re produced naturally, and there’s a goal to keep the election process as open and fair and transparent as possible, what is the harm, and what is the concern of releasing these reports?” she asked the Department of State’s lawyer, Jason McMurray.
“One, we don’t believe they’re entitled to them based on the reading of the sections…” Murray began before he was cut off.
“We understand that, but just get right to what her question is,” Judge Stacy Wallace interjected.
“In the climate that we’re in currently, and in other matters, there’s always the possibility of the threat of manipulation of information,” McMurray began. “And so, when you get information such as this — raw data — from the machines, and subject to random interpretations, or people that don’t have all the facts of being able to adjudicate the information that’s in the data set, I think it could lead to a lot of misinformation. And that’s the harm here, we’re trying to prevent that. We’re trying to make sure that when you vote, your vote is counted properly and that the report of that vote is reported properly — that everyone is on the same page at the same time.
“And then by allowing requests for information such as this to get out, I believe that it could be a manipulation of that type of information in the public’s eye and could lead to, you know, a lot of challenges to results that are not necessarily warranted if there’s no fraud or errors presented.”
(PCN-TV video of the arguments is found here, choose 12-23-06. Arguments begin at -1:58:56. The specific comments mentioned in this article are at -1:16:11.)
When Broad + Liberty asked the Department of State if McMurray’s response revealed some kind of deeper ethos, the department objected.
“As Deputy Secretary Jonathan Marks said multiple times during his testimony in this case, transparency about the election process in Pennsylvania is extremely important to the Department of State. To that end, the Department’s approach to providing documents or data requested through the Right to Know Law is to provide all the information it is permitted to share within the confines of the law. The Department also takes seriously its duty to protect Pennsylvania voters’ confidential personal information,” a department spokeswoman said.
“In a general sense, providing information publicly often promotes transparency. However, one of the potential caveats of providing raw data or information is that it could be easily misunderstood without appropriate context, so the Department strives to provide necessary applicable context in its responses to RTKL requests.
“Again, in attempting to take this isolated statement in response to a specific question from the Court out of context, you are mischaracterizing the Department’s position on transparency as a whole and on this particular case.”
Honey was recently the subject of a massive, 4,600-word publication alleging she is one of the most disruptive purveyors of information when it comes to election integrity.
Because she was involved in audits in other states, Honey says she knows exactly what she’s looking for by requesting CVRs.
“The Cast Vote Record report contains information that is useful for many types of analysis. One example, as we found in Arizona, Georgia and in PA, when counties are tabulating hundreds of thousands of mail ballots on central tabulators, sometimes they send batches through more than once and ballots are double counted. In Georgia, that happened with many batches and thousands of ballots,” she said.
“Transparency and trust are fundamentally linked when it comes to the government. Public confidence in elections is at an all-time low and the Department’s efforts to withhold records that are presumed to be public are further eroding that trust,” Honey concluded.
State Sen. Jarett Coleman, a Republican whose district covers parts of Bucks and Lehigh counties, said the arguments in court from the Department of State are concerning, but largely because they don’t comport with his experience working with the department and its new secretary, Al Schmidt.
“This statement that the Department of State made in the courtroom is a severe departure from the openness that the secretary of state has provided me and my office as we work on election issues,” Coleman said. “So this is a huge departure and that’s very concerning for me. Secretary Schmidt has been nothing but helpful and open and transparent as we work to amend and craft election code bills that aim to increase transparency and faith in our elections. So this is a huge shift and that’s the part that’s hard for me to understand.”
Coleman said he felt certain that the department’s “misinformation” argument lacked any legal merit, and so that specific part would fail, even though other arguments the department made might yet succeed.
Coleman says he’s been working with Secretary Schmidt and other team members at the Department of State on testing issues for voting machines.
Honey’s case was argued before the Commonwealth Court in December. A ruling could come any day.
