On April 12, a 7-judge panel of the Pennsylvania Commonwealth Court ruled 4-3 that a group of voters may proceed with a lawsuit, challenging the use of Electronic Vote-Counting machines that leave no paper trail. Banfield v Cortes, 442 MD 2006.

The majority opinion is 26 pages long, and depends partly on the Pennsylvania Constitutional provision (Art. I, sec. 5) that “elections are free and equal.” The opinion quoted from a 1992 Pennsylvania Supreme Court decision that says, “When every voter has the same right as any other voter; when each voter under the law has the right to cast his ballot and have it honestly counted”, only then is the State Constitution satisfied. The decision then says, “Because Electors have a right under the Pennsylvania Constitution to have their votes honestly counted and because Electors have no way of knowing whether the votes will be honestly counted by DREs that are not reliable or secure, Electors have pled an injury.”

The majority also depended on sec. 1105-A of the Election code, which says an electronic voting system shall “provide for a permanent physical record of each vote cast.” That law was added in 1980, before the newest technology had been invented.

The 3-judge dissent says, “The statute does not say ‘paper’; it says ‘physical record.’

By chance, 5 of the 7 judges on the panel are women. All of the dissenters were women. The judges in the majority are Doris Smith-Ribner, Dan Pellegrini, Rochelle Friedman, and Robert Simpson; the dissenters are Bonnie Leadbetter, Renee Cohn Jubelirer, and Mary Hannah Leavitt. The state may appeal to the State Supreme Court.