Case 2:06-cv GLL Document 48 Filed 04/24/2006 Page 1 of 66. A Yes. We hold 14 training classes prior to each

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1 Case :0-cv-00-GLL Document Filed 0//00 Page of 0 I 0 well as new people that come on the scene? A Yes. We hold training classes prior to each primary and general election. We hold them in the regional reporting centers where they bring the returns so they're familiar with the geographic area where they have to do this. Q So with this two, odd-rnunbered, even-numbered year system, I presume you would have to have two entirely different sets of training programs, depending upon what election you were preparing for, right? A Right, on the pure odd and even system. MR. DUNLAP : One moment, Your Honor. I have no further questions for this witness, Your Honor. THE COURT : You may cross-examine. CROSS-EXAIMTIC V BY MR. PASCAL : Q Mr. Wolosik, you talked a great deal about how it is that lever machines work and some of the malfunctions that you've experienced. You've been in the process of looking at DRE machines? A Yes. Q And as part of that process, I'm -- have you done a lot of research on various machines? MR. ARONCHICK : Your Honor, I would object. There's no question in this case about the integrity of DR E 00

2 Case :0-cv-00-GLL Document Filed 0//00 Page of machines. The whole issue is how it's mandated about lever machines. 0 0 MR. PASCAL : We talked about a lot of testimony about malfunctions here. THE COURT : I understand. There was a whole scope of cross-examination about the problems with the mechanical machines. If your cross-examination is there will be problems with electronic machines, too -- MR. PASCAL : 'T`hat ' s all it is. THE COURT : Okay. MR. PASCAL : I'm not getting into detail. THE COURT : Nothing is purchaseless ; do you agre e with that? THE WITNESS : Nothing is perfect. BY MR. PASCAL : Q Could malfunctions with - - THE COURT : The circuit board could go. BY MR. PASCAL : Q Malfunctions with DRE machines? A Yes. Q Votes could be lost? A My understanding is there's triple redundancy in any system. So if something is not, if the counting software were, it can be reconciled with read-only types of memory on the equipment, I mean, I think that's the whole idea of HAVA, ~ Zo ~

3 Case :0-cv-00-GLL Document Filed 0//00 Page of 0 0 the manual audit trail. So I don't know about the votes being lost. Q Possible, though? MR. ARONCHICK : Objection. MR. PASCAL : I'll withdraw. You know, we heard a lot about the malfunction of machines, that I thought that at the beginning o f Mr. Wolosik's testimony, he testified did pretty well for a long time. Anyway -- THE COURT : With all due respect to everybody, whether these machines have been in existence since -- and there are problems with all the machines. The real question is, how do we go to the next generation of machines? And so this is all nice, but.... BY MR. PASCAL : Q What -- you were talking about your current machines being stored all around the county in various places? A Eight hundred of them are. Q What do you intend to do with them? A Ultimately they will probably be sold for scrap. Q What do you intend to do with them now? A What do I intend to do with them now? I mean - - Q Not today. A I mean, today - - 0

4 Case :0-cv-00-GLL Document Filed 0//00 Page of 0 0 Q When you buy your new machines. A When we buy our new machines, we will probably leave them in those polling places for at least one election just to make sure that everything, no matter what we buy, make sure everything works ; and then ultimately arrange to have those brought in and probably sold as scrap. Q As you understand HAVA -- you were talking a little bit about voters with disabilities -- does HAVA require that the voting machine, voting technology, DRE machine, whatever that a disabled person votes on it be the same machine or the same technology or the same system as everyone else is votin g on? A I don't think it does. No. Q And clear up one other thing. You had a little discussion about error rates with regard to the counting of absentee ballots. I didn't understand what you meant. An 0 percent error rate, meaning that -- what I understand 0 percent error rate meaning is that there's an error in counting 0 percent of the ballots. That's not what yo u meant? A No. What I meant is that in the instances where we've had petitions filed for recount, which is a manual recounting, a physical recounting of the ballots, 0 percent of the time that there was at least one ballot where the office was not counted ; one office was not counted correctl y ~ zo ~

5 Case :0-cv-00-GLL Document Filed 0//00 Page of 0 0 or transcribed correctly onto the return sheet by the election officers. Q Okay. But there's not 0 percent of the time -- I mean, 0 percent of the votes were counted incorrectly ; it's 0 percent when you've checked, there's been a problem? A That's correct. Q Just overall, not on each ballot? A T`hat ' s correct. MR. PASCAL : That's all I have. THE COURT : What -- MR. FERACE : I have no questions of this witness. THE COURT : Go ahead. You ask your questions. MR. FERACE : I don't have any. THE COURT : Oh, you don't have any questions. What would you actually do -- I guess this whole testimony is to show that it would be an enormous amount of harm if the plaintiffs were successful. What would you actually do if you couldn't go to electronic voting for state elections? THE WITNESS : What would I -- THE COURT : What would you actually do? THE WITNESS : I don' t know. I don' t know. I mean, I haven't, we haven't -- I haven't been forced to make that decision yet. THE COURT : You haven't thought about it a littl e 0

6 Case :0-cv-00-GLL Document Filed 0//00 Page of bit? 0 0 THE WITNESS : Well -- THE COURT : Never mind. I won't push you on that. I'm sure you've thought about it, though. That's all I have. MR. DUNLAP : Nothing further, Your Honor, on thi s witness. THE COURT : You may step down. Does anybody -- does the Commonwealth have any mor e witnesses? MR. DUNLAP : Excuse me, Your Honor. THE WITNESS : Your Honor, I could say resign. THE COURT : Sometimes that's the better choice. MR. DUNLAP : The Secretary has no witnesses, Your Honor. Mr. Ferace -- MR. ARONCHICK : Your Honor, the Commonwealth doesn't have any additional witnesses, but I think Westmoreland has a brief bit of testimony they need to -- MR. FER.ACE : Your Honor -- MR. ARONCHICK : -- put on the record. MR. FERACE : -- we only intend to call our election director just to establish where the situation stands, just to establish the record. THE COURT : I understand. You can call your witness. ~ Zos

7 Case :0-cv-00-GLL Document Filed 0//00 Page of MR. FERACE : Your Honor, we call Paula Pedicone t o the stand. 0 0 (Whereupon, Paula Pedicone was sworn. ) DIRECT EMUMMTIO N BY MR. FER.ACE Q Paula, for the record, would you state your ful l name, please? A Paula Pedicone. Q And are you employed? A I am. Q With whom are you employed and in what capacity? A I'm employed by Westmoreland County as their director of elections. Q And how long have you served in that capacity? A As director, years. Q And in your capacity as the director of the election bureau, are you familiar with the HAVA requirements that have been testified to and alluded to many times this morning and this afternoon? A I am. Q Would you state for the record and for the Court what actions Westmoreland -- and let's summarize as best we can ; what actions Westmoreland County has taken to become HAVA compliant and where Westmoreland County stands at the present time in that regard? 0

8 Case :0-cv-00-GLL Document Filed 0//00 Page of 0 0 A After Westmoreland County received notice of HAVA from the Department of State, we started to make plans to come into compliance with this law. We, in September of 00, received RFIs from five different companies. And we had started at that time to take, in October of 00, vendor demonstrations for the various companies that had submitte d to us. In late December of 00, around I think the nd of December, we received notice that the vendor of interest had been certified by the Department of State. And on December th, the county passed a resolution naming a vendor in our attempt to procure the HAVA compliant voting machines. Q And Paula, if I may, what vendor was the vendor o f interest then? A It was ES&S, and we were planning on purchasing the ivotronic Direct Recording Equipment. Q When did Westmoreland County receive notice from the Department of State that that particular voting system was certified or satisfied their HAVA requirements? A I'm believing that date to be around December n d of 00. Q Okay. Following that -- and I think it is Exhibit, that the board of county commissioners passed a resolution to procure those voting systems. A What was the date? I'm sorry. 0

9 Case :0-cv-00-GLL Document Filed 0//00 Page of 0 0 Q As referenced in Exhibit, the resolution adopted by the county commissioners at their last public meeting in 00, December -- excuse me, December A Uh-huh. Q -- did the commissioners take official action to procure the ivotronic machines that you referred to? A Yes. Q And shortly thereafter, did you become aware that a lawsuit had been filed by the plaintiffs in this action? A Yes. Q Now, Paula, there's been some discussion -- and I just want to touch on it briefly -- about time is of the essence as far as complying with the May primary election. Where exactly does Westmoreland County stand at the present time in their relationship with ES&S so as to get these machines in place for the May primary election? A At this point, the county is working on a contract with ES&S. And as soon as the language is agreed upon between the parties to procure the machines, we intend to do whatever it takes to secure the machines, to have them ready for the May th, 00 primary and come into compliance with HAVA so we do not lose our fund, funding that is designated for Westmoreland County. Q Is ES&S going to sukxnit a revised plan to Westmoreland County as to how that can be implemented, the 0

10 Case :0-cv-00-GLL Document Filed 0//00 Page 0 of training and what components need to be necessary to put in place? A Yes. Q A So that we are prepared for the May election? Yes. 0 0 Q Just in general terms, how far away is Westmoreland County from having to be in that position so as to be able to use these new machines in the May primary? Approximately how much time do we have to spare? A Two to three weeks. Q Paula, you heard Mr. Wolosik's testimony. I presume you would agree that from time to time, there's malfunction with lever machines, malfunction with all voting machines. Would that be an accurate statement? A Yes. Q And there are some storage costs and maintenance costs that perhaps are unique to lever machines ; would you agree with that as well? A Yes. Q He testified also about some of the problems that would be faced by counties in trying to maintain a two election system voting scheme, in other words, using one machine for federal elections, one machine for state and local. Do you agree that that would be problematic and concur with basically what Mr. Wolosik testified to as far a s 0

11 Case :0-cv-00-GLL Document Filed 0//00 Page of 0 0 impracticability? A I would have to concur with everything Mr. Wolosi k said. We would be faced with very much the same problems as Allegheny County. MR. FERACE : Very well. I have no further questions, Your Honor. CROSS- EXAMINATIO N BY MR. PASCAL : Q Ms. Pedicone, you said that you got RFIs from companies in September of 00? A Yes, we did. Q When did you put the RFIs out? A I believe it was in the beginning of September ; we notified vendors who were, you know, soliciting the business at that time that they were invited to submit RFIs to us. It would have been, I believe, the beginning of the month. Q And how many of those were certified by the Department of State in September? A I can't say. I'm not sure. Q Would it be fair to say that it's less than three? A I would guess -- MR. ARONCHICK : Your Honor, I object. There's not a bid protest he's going to start up in this case. I mean, this case is all about -- MR. PASCAL : There's a laches defense that I' m ~ zo

12 Case :0-cv-00-GLL Document Filed 0//00 Page of 0 0 responding to. THE COURT : You have made that argument in your briefs, so I'm going to let him go. But just go. I mean, a lot of this is right in the record. A lot of it is stipulated. I have to say that it's interesting that we're three months before the election and the, probably the second -- and I think Westmoreland is the fifth largest county in the Commonwealth ; and they're still, everyone is still purchasing machines three months before the elections. But that's neither here nor there. I mean, it's -- it seems like a lot of counties are purchasing machines because we've gotten several other lawsuits. MR. PASCAL : That's all. EXANMTION BY THE COURT : Q Can you explain why that occurred, why we're three months before the election and it just seems statewide, not just in Westmoreland but statewide, that we're purchasing machines that everybody has to train on and do everything b y may? A I can speak for Westmoreland County only. Q Okay. A And I believe that Westmoreland County has done a lot of work over the last year in getting ready to come into compliance of this law. We secured the services of a I I

13 Case :0-cv-00-GLL Document Filed 0//00 Page of 0 0 consultant who did some research for us and helped us with our grants, myself not being an expert in doing the grant applications for our HAVA money. And we also had thi s individual help us with the drafting of our RFI. I believe that we were ready and that we will be ready. We're being held up because of this. Q No, I understand -- but why -- A And, of course -- Q Why did you go out for proposals so far, for -- A Because we were waiting for grant money. Q Because at the time, you weren't sure you were going to get the grant money, so you were holding back on going out? A No. A lot of -- Q Okay. A A lot of it was that we wanted -- of course, you're waiting for certification to come in for the companies, but you realized you had to move forward. But still, at that point in time, there was time. Everything moved along quickly. We had opportunities through the last year and a half or two years to see these vendors on display at various conferences that we attended also, so you do have a general idea of how these systems work and what they're like. So the five companies that decided to submit RF'Is to Westmorelan d

14 Case :0-cv-00-GLL Document Filed 0//00 Page of 0 0 came in and did demos, we had -- we were ready. We were ready, Your Honor. THE COURT : Thank you. MR. ARONCHICK : Thank you. Nothing. THE COURT : You may step down. Anyone have anything else? MR. ARONCHICK : No, Your Honor. MR. FERACE : No. THE COURT : Okay. We will break until :00, and then each side can prepare arguments. Mr. Pascal, I don't have it, but -- you may have filed one, but I don't have it. Have you filed a brief? MR. PASCAL : No, Your Honor. I want to ask for a very tight briefing schedule after the hearing. THE COURT : Okay. We'll resume at :00. (Whereupon, a recess was taken from : p.m. until :00 p.m. ) THE COURT : Mr. Aronchick. MR. ARONCHICK : Want me to start? THE COURT : Well, no. I don't want you to start. You're right. I was considering that you're the moving party, but you're not. MR. ARONCHICK : Okay. THE COURT : Mr. Pascal. MR. PASCAL : Thank you, Your Honor. ~ ~

15 Case :0-cv-00-GLL Document Filed 0//00 Page of This case, for the most part, has been submitted on referendum to change voting systems. Westmoreland County proceeded to switch voting systems without having a referendum, acting on the advice of the Respondent, th e Secretary of the Commonwealth, who told the county that the y cannot and should not have a referendum. The rights enumerated in the rights of declaration 0 "Since the right of suffrage is a fundamental matter, an y alleged restriction or infringement of that right strikes at the heart of orderly constitutional government and must b e carefully and meticulously scrutinized." That's from Bergdoll v. Kane. As a fundamental right, all the people o f 0 afforded their constitutional right to vote as guaranteed by the Constitution of Pennsylvania, their right to vote on changing the voting system in Westmoreland County. That right is rooted in a constitutiona l amendment to the Pennsylvania Constitution when voting machines started to be used. And the legislature put forward ~

16 Case :0-cv-00-GLL Document Filed 0//00 Page of 0 0 have trust in that system, and that continued and continue s to this day in the Constitution of being a requirement to change voting systems. Now, HAVA, as we talked about, sets, set minimum requirements and left the specific choices on the methods o f complying with it to the states. HAVA, of course, only deals -- and it only can preempt, if it preempts anything, can only preempt how the state deals with federal elections. Nothing in HAVA pretends to, purports to or does preempt anything having to do state elections. Can't do that anyway because of many precedents, including Oregon v. Mitchell, having to do with the voting age, that basically held that the states could determine the voting age for people to vote in federal elections but could not determine the voting age for states to, for the -- the voting age for people to vote in state elections. That's the same principle at work here. Now, the respondents, and particularly the Secretary of the Commonwealth, has raised basically two

17 Case :0-cv-00-GLL Document Filed 0//00 Page of issues as a defense ; first of all, the issue of laches. Now, they're saying that in their brief, that -- they've asserted that we can, we could have filed this suit in or 00 when the first State Plan came out indicating that a 0 0 referendum wasn't necessary, although that's not what the State Plan said. It just didn't say anything about that. We could have filed it in 00 or 00, but nobody had done anything in 00 and in 00 and in 00. The county hadn't done anything ; no county had done anything. The Commonwealth certainly hadn't done anything. They were -- they have the power to certify voting machines that the counties could switch to, and the first one of those was certified in August of 00. Westmoreland County did, in December of 00, vote to enter a contract for the purchase of voting machines, did so without a referendum. And this suit was filed several days thereafter. Now, it also could be said that well, we should have filed perhaps -- I've been trying to figure out what it was I was supposed to file and when ; perhaps a mandamus -- THE COURT : I think what they would argue is that you should file it the date of the preliminary plan, the one at Tab, I think. MR. PASCAL : In 00. THE COURT : In 00, when that came out and they

18 Case :0-cv-00-GLL Document Filed 0//00 Page of 0 MR. PASCAL : Well, the Commonwealth acts as an -- actually in an advisory role to the counties' boards of elections. Their word on that particular question certainly would not be binding on the counties. If the counties wished to have a referendum, there was nothing that prevented them from doing so. They have the power to put it on the ballot, and the Secretary of the Commonwealth has no power to keep i t The fact that they have issued an opinion that i n provision in Pennsylvania's statute was preempted by HAVA is really of no note until somebody heeds that advice. And that advice could not have been heeded by anybody because ther e was no machine to switch to until at least August of 00. There was, there was nothing to put on the ballo t 0 Code at 0.(f) requires that the machine that is the county's wish -- or that the voting system that the counties wish to put before the voters has to be demonstrated to th e voters prior to the election. There was nothing to put on the ballot. Nobody knew what this time line was going to be, other than the fact that there was some statutory language.

19 Case :0-cv-00-GLL Document Filed 0//00 Page of There was nothing to file on prior to that 0 The other argument is that there was preemption. The argument basically is that this is a conflict preemption case which, of course, requires that either it is physically impossible to comply with both the state and federal law or that the state law stands as an obstacle to the 0 of Congress. Now, HAVA was passed in 00. And from 00 unti l 00, there was not much activity at the state level othe r than some pronouncement that it was preempted. There was changes to the Election Code ; specifically, there was a change to the referendum section. The legislature looked a t HAVA, looked at the Elections Code, said, what do we have t o change here? And in 00, prior to the Department of Stat e saying that they believed HAVA was preempted, the legislature looked at the law and changed the law to basically allow the -- as a minor change, basically to allow the counties to put the question before the voters more than one every 0 weeks. ~ ZZS

20 Case :0-cv-00-GLL Document Filed 0//00 Page 0 of 0 0 So if it failed once, they can put it on in the next election. If it failed in the primary, put it on in the general. Prior to that time, prior to that change, there was a two-year, a two-year window. That shows that the legislature looked at that, that law, didn't have -- had the opportunity to change it, had the opportunity to change the referendum requirement, even had the opportunity to change it in the Constitution at that point and didn't do it. But under conflict preemption, the argument is, is it completely impossible to comply with both HAVA and with the Pennsylvania Election Code and the Constitution? I would answer that no. THE COURT : Let me ask a question right there. Do you dispute that the voting machines are not in compliance with HAVA? MR. PASCAL : No. THE COURT : So they're out of compliance. What if the voters say do you want to go to electronic voting machines and they say no, do you want to go back and get rid of voting machines -- and personally, I like when I hit the thing ; it whirls and it's a, there's a finality to it -- and they, and they vote no and the machines are out of compliance, then what happens? MR. PASCAL : There's a provision in the law, i n

21 Case :0-cv-00-GLL Document Filed 0//00 Page of 0 0 THE COURT : We've decided that we're not in the experimental use. We're in essentially if the voters say no, no, I like these machines, and, you know, you get to see them, you plunk them down, you've got the levers and the sounds and all, they like them, they want to keep them, what happens then? MR. PASCAL : I don't think they can -- they can't keep them except for in state elections. I believe, first of all, that, as I said, HAVA, HAVA, if it preempts anything, preempts federal, preempts elections for federal office, does not preempt anything having to do with state elections because it doesn't purport to and it doesn't. There is nothing that conflicts ; there's nothing that, that's impossible to comply with both. You can comply with both. You can have state elections with -- and I'm not talking about at the same polling place on the same day. I'm talking about odd-numbered years having one system that is, that is legal under state law and another -- and in even-numbered years, having a system that is HAVA con-pliant. THE COURT : I -- MR. PASCAL : I understand -- THE COURT : With all due respect, I've neve r ~ o

22 Case :0-cv-00-GLL Document Filed 0//00 Page of 0 0 understood that argument, that you can have two systems. MR. PASCAL : Well -- THE COURT : Because there are, there are state officials that get elected this year, and the county decides how those officials will be elected. And in that county, they're just as bound by the method. So don't you have to have one system? I mean -- MR. PASCAL : I would say -- Your Honor, I would say if there was not a constitutional provision that we were dealing with here, that that would be correct. But I don't think -- but I don't think that the federal law preempts -- THE COURT : So you can' t have odd-numbered -- you can't have two voting systems ; you have to have one system. I mean, the legislature is up this year. This is not a municipal election this year, but the legislature is up, right? MR. PASCAL : Right. THE COURT : Let's say -- and so in that, they are bound by the Constitution just as much as everybody else, right? MR. PASCAL : That would be correct, but -- THE COURT : So you can't have two. You've got to have one system. MR. PASCAL : But if we're going to accede to a question of impracticability, that's how you do it and stil l

23 Case :0-cv-00-GLL Document Filed 0//00 Page of 0 0 abide by the Constitution. THE COURT : In other words, what you're suggesting is that we have a split system ; in federal years, we cart out the electronic voting machines ; and in municipal elections, we cart out the -- MR. PASCAL : That's one solution. That's not the only solution. THE COURT : Well -- MR. PASCAL : What I'm trying to argue is that I can't see anywhere in HAVA where HAVA intends to preempt state law as it relates to state elections, nor can it under federal law preempt state election law as it relates to purely state questions. The issue comes down to, I guess, the -- whether there's an obstacle. And you're arguing that, or at least asking that there's an obstacle that's preventing the -- THE COURT : To be honest, when people say we'll have two elections, in one year, one election where there's federal officers being elected, we will use the electronic machines or whatever method that they decide to use, rather than the other, other system for municipal, makes no sense because we have state officials being elected in, in the federal, where there's federal elections also. And they would be bound to the same extent that municipal elections are bound. So it makes -- L

24 Case :0-cv-00-GLL Document Filed 0//00 Page of 0 0 MR. PASCAL : Well, then the other argument, which I tried before, is the experimental question, which is since the code allows an experimental system, which I would assume contemplates the county saying, gee, I don't know whether we like this system or not ; we want to try it out, putting that on the ballot while it's there and having the people vote on it. If they vote for it, fine. If they vote against it, it's not meaningless because since the Election Code requires that the county demonstrate the system they wish to use, if they don't approve that system, the county can experiment with another system until the voters approve it. THE COURT : And this isn't with finality, but I read that section. And it seemed to me that you can experiment with some precincts, some voting districts -- MR. PASCAL : You can. THE COURT : But I don't think anybody envisioned that you go out and spend $ million in a test. A test would be I'll put electronic scanners here, I'll put this system here, I'll put this system here and I'll see how they work and I'll make a choice. You know, but I don't think they went out for this broad range scale, but -- MR. PASCAL : I don't -- THE COURT : -- I don't even think that's an issue here. MR. PASCAL : I don't think it's necessarily

25 Case :0-cv-00-GLL Document Filed 0//00 Page of 0 0 experiment. THE COURT : Okay. MR. PASCAL : If a vendor wants to sell a system, they're likely to work something out -- THE COURT : I don' t know how many times I have to say this. I don't think there's a experimental system here. Everybody can argue until they're blue in the face. That was major dicta about what the statute meant, which might not even bind me after further reflection. That's what I'm saying, how I read the statute. I don't see where this experiment has any place in this case, but -- MR. PASCAL : The issue here then is when we talk about whether the state law stands as an obstacle to the accomplishment of Congress's goals. Congress's goal is to have an election system that the people trust, that is fair and meets these minimum standards. There's a number of ways to do that. And unfortunately, what we've done here is we have come up with an argument that says it preempts because -- well, basically at this point, it preempts because we're out of time. And, therefore, we can't possibly have a referendum prior to May ; and, therefore, we have to ignore it. I don't, I don't know of anything that argues that. You know, if there's a laches argument -- I think it's ove r ~

26 Case :0-cv-00-GLL Document Filed 0//00 Page of 0 0 there -- that says we wait until it's too late to do anything ; we don't certify any machines until August, start certifying machines until August of 00 ; we don't have multiple ones certified until November 00 ; and then oh, by the way, the election is over and we have to have it done by the next election, there's no way to do a referendum under those conditions. The delay, whether it was at the state level or at the federal level, because in the HAVA 00 plan, it indicates there is some federal delay, whatever that delay was, I don't necessarily know that the delay is an argument to ignore the Constitution either. So there's several things here. We have a fundamental, historical right of the people to vote -- it's not like some, you know, small issue -- a historical right of the people to vote taken away by a federal law that's meant to increase trust in the voting -- THE COURT : They didn't take away anybody's right to vote. MR. PASCAL : Sure they did. THE COURT : No, they didn't. MR. PASCAL : If preemption applies, then the argument is that HAVA preempted the state requirement that there be a vote. THE COURT : They took away, whether they get it,

27 Case :0-cv-00-GLL Document Filed 0//00 Page of 0 0 how they chose to vote, but not the right to vote. MR. PASCAL : Well, they got, take away the right t o vote on that question -- THE COURT : Okay. MR. PASCAL : -- is what I'm saying ; not the right to vote in general certainly, but the right to vote on that question, which in this state is something that's been there for a long time and for good reason. THE COURT : Okay. MR. PASCAL : And HAVA was meant to increase trust and increase voter participation and increase confidence in the system. In Pennsylvania, we have a system where the voters get to pass on whether they believe they trust tha t system -- THE COURT : Isn't that your argument? Your argument is essentially that the Constitution says you get a right to vote? MR. PASCAL : Yes. THE COURT : And everything else is detail? MR. PASCAL : Oh, but I have to -- well, i n general -- THE COURT : Other than the lathes argument, your argument is that the Constitution says that there has to be a referendum and that -- MR. PASCAL : But I recognize --

28 Case :0-cv-00-GLL Document Filed 0//00 Page of 0 0 THE COURT : And that there has to be a referendum? MR. PASCAL : No. Because I recognize under th e principles of preemption just because it's a constitutional provision doesn't mean that it can't be preempted. I do believe, because it's a constitutional provision, particularly a fundamental constitutional provision having to do with the right to vote, that it deserves at least a little bit more deference than a normal statute or a normal preemption argument because of the nature of the right at stake. But I do recognize that it can be preempted under law. So, you know, I'm basically saying there are ways where it can be, where you can comply with it and comply with HAVA and that the two are not mutually exclusive. They can be harmonious. It may be not without a little bit of temporary pain, but no constitutional right has ever been kept and won without a little bit of temporary pain. And so I would ask the Court to consider that and to basically give the people of Westmoreland County their right to vote on this question. THE COURT : Thank you. MR. ARONCHICK : Thank you, Your Honor. You know, I think halfway through this hearing, you know, Your Honor put your finger right on the issue. And that is, how are we going to get to the next generation of voting and voting ~ ~ ~

29 Case :0-cv-00-GLL Document Filed 0//00 Page of Fortunately, we have, the United States Congres s and the President who signed the bill, spent a good deal of time on a major voter reform effort that came out of Florida and set forth a comprehensive statute that kind of leads th e 0 way. We can't overlook that. It's a federal effort. And we're going to find in and out 00, in it s 0 Pennsylvania is, in many people's minds, ground zero in 00 because of the nature of elections we have going on in thi s state, and a lot of people will be watching us. There has been some sense, I guess, some suggestio n that, of some sort or another that the authorities that have been charged with implementing these important reforms perhaps didn't do so quickly or expeditiously or correctly. I think that's nonsense, and I think -- and it doesn't belon g in this case. And if you look at the State Plans -- THE COURT : Well, I think it took a lot of time t o ~

30 Case :0-cv-00-GLL Document Filed 0//00 Page 0 of 0 0 implement. I have to say, though, what bothers me the most about this is that we have -- this came to the courts two weeks before. And I wish the Commonwealth would have filed a dec action in 00 where we would have had time to really look at this in a, in a slow, deliberative process rather than a fast, deliberative process and rather than -- because there are substantial issues in this case. I think you'll even admit that this is not a, not a, an easy case. But I wish we would have, we would have -- the Commonwealth would have filed a declaratory judgment action so we're not faced here with this choice of one way or the other, costing if we go one way, at least costing an enormous amount of money, what is it, $. million. So that's, that's the real problem I have with that. MR. ARONCHICK : I can -- let me -- I want to get to the core argument, but -- THE COURT : No -- MR. ARONCHICK : But let me address that briefly. I don't think that that is really the issue of the Commonwealth. The Commonwealth told the world, the Pennsylvania world, what it was doing, and it told it for many years. If anyone, if anyone wanted to bring a dec action, it would be the petitioners. I mean, Mr. Pascal talks about a late December Westmoreland County vote and all that, but there was plent y ~ ~

31 Case :0-cv-00-GLL Document Filed 0//00 Page of 0 0 TEE COURT : There's enough. That will be resolved. What I'm essentially saying, from an administrative viewpoint of the Commonwealth -- from an administrative viewpoint of the courts, it would have been much better if it was brought earlier. You know, sometimes when I was out there, I never looked at it the way the judge looks at it. We're looking at it, and we're essentially saying we have two weeks, less than two weeks, probably two days, to decide a case involving important constitutional principles and serious amounts of money, which is a very difficult provision -- position. And then the Supreme Court, no matter which way this is going to go, I'm sure is going to look at it, and they're probably going to have 0 minutes to decide the case, which is a very difficult position for the court system to b e in. MR. ARONCHICK : Okay. I'm not going to -- THE COURT : I understand that, but that's just a comment. You don't have to address it. MR. ARONCHICK : I know that, Judge. And really, I mean, the principle peg of the argument here is not -- THE COURT : I know ; that was an editorial comment. MR. ARONCHICK : I understand. But to add a footnote to the editorial comment, really, in this specific case, just to add a small footnote, just to understand wher e ~ 0 ~

32 Case :0-cv-00-GLL Document Filed 0//00 Page of 0 0 we're at, there's been this stay on Westmoreland acting almost six weeks now. And Mr. Pascal started off with a preliminary injunction request, which he withdrew that and the other thing. I mean, it's not like the Commonwealth hasn't been eager to get a resolution of this case weeks ago. THE COURT : I understand that. But we were all ready to go on the preliminary injunction case, and Westmoreland agreed to the preliminary injunction. So they said, why do they need a preliminary injunction -- MR. ARONCHICK : But let's get to -- THE COURT : -- and we moved very expeditiously t o this hearing. MR. ARONCHICK : -- the principle argument. And really, I do not think -- and, you know, I understand that I'm here and you're there. But I've dealt with a lot of these arguments over the years and seen a lot, and I don't think that this is all that difficult. It's weighty, no doubt, because it's, you know, the election process. But it's not all that difficult. The core provision of HAVA in Section 0 that machines, lever machines -- it doesn't say lever, but the notion that lever machines are not going to be compliant because of a number of features, one of which is the manual audit capacity, is undisputed in this record. Mr. Pascal is not challenging that. We have the ~ ~

33 Case :0-cv-00-GLL Document Filed 0//00 Page of 0 0 state that studied it. We have the federal election advisory commission that studied it and wrote a letter that's entitled to deference and weight and a position. And then we have testimony in this hearing here itself that is undisputed. And the core notion -- and it might have gotten by Your Honor -- just to address it for a second, of why lever machines do not have this capacity -- THE COURT : They don' t have an audit capacity. MR. ARONCHICK : But the DRE machines do. The DRE machines, as Mr. Boehm said, retain in a random way the image of every voter's vote. And so this is why Mr. Dunlap's testimony was so important about the malfunctioning on lever machines, because you have a roll ; you can have a printout basically of DRE machines in a random way of every voter's vote. You can go back and randomly count the votes. If you have a malfunction, you'll still be able to retrieve those votes. On a lever machine, you can't retrieve the votes. And this is not Mark Aronchick's principle of DRE ; this is everybody's position on DRE machines. And it is undisputed in this record. So we have a situation where foursquare a federal statute says that the counties in Pennsylvania that have these lever type machines are noncompliant with federal law. The United States Constitution is a pretty important documen t

34 Case :0-cv-00-GLL Document Filed 0//00 Page of 0 0 also, and the courts that have imposed, under spending power or supremacy clauses, preemption never do so lightly. And it is true, as Mr. Pascal says, when state law is to the contrary, statutes, constitutions, it doesn't matter, conflict when they're obstacles, not near impossibility of conflict or the kind of high standard s Mr. Pascal said. Just when they thwart, when there are obstacles in conflict, they have -- when the federal direction is, they have to stand by the wayside. There's no question that there is a conflict here, no question. The state statute that talks about referendums, referenda, if you want to have an electronic voting machine, simply says, do the voters of this district -- you know, I'm paraphrasing -- want to have an electronic voting machine? It doesn't say do they want to have one for state races if they can't have one for federal races or can the Court somehow craft some other view of that question. I mean, if it's preempted -- and this year preempted for federal and state races as Your Honor points out -- there will be many states it's preemptive. THE COURT : Mr. Pascal raised in his issue that, let's say the, let's say we have a provision in the State Constitution that you must be to vote and the federal government says for federal elections, we're going to be and you have to be to vote. Does that preempt -- and then ~ ~

35 Case :0-cv-00-GLL Document Filed 0//00 Page of 0 you're going to have two voting lists and a whole bunch of -- there would be an enormous administrative burden on the states. Does that preempt the states? MR. ARONCHICK : Well, no. That's -- the state voting age issues have already been decided. THE COURT : So it's, right --? You'd have to have two voting lists, one for federal election and one for state election. MR. ARONCHICK : I'm not sure about that. THE COURT : Well -- MR. ARONCHICK : Yeah. THE COURT : So does the preempt -- so if the fed goes to for voting and the states are at, my understanding is that it stayed in those states that want to stay and they have to have separate voting for. isn't that an automatic preemption? Why 0 MR. ARONCHICK : Let's assume your hypothetical is correct. We're talking about here, what is preempted here is a single referendum statute that says, do you want to have a system in your district that's electronic or otherwise? Not do you want to have a system that's electronic for just state races ; do you want to have a system? That's the statute. That's the constitutional provision. That is how it is phrased. And if it's preempted for the purposes of an ~

36 Case :0-cv-00-GLL Document Filed 0//00 Page of 0 0 election that has federal offices or in this case federal and state offices, it's preempted. There's not a second statute or another, a, another -- a subsection or another attempt or another place to go to say, okay, now that we know that question is preempted, let's go ask you another question : In light of that now, do you want to have electronic machines that are available in off-year elections for municipal races? We don't do that. I mean, for all Mr. Pascal says the state tried to -- THE COURT : Let me get your position here. Essentially what you're saying is that anytime the federal government passes a statute that tells the manner in which federal elections have to be conducted, it preempts all state constitutional provisions and state election provisions relating to the election of state and municipal officials? MR. ARONCHICK : No. It preempts them unless there are provisions that are specifically separate and directed to state or municipal elections. THE COURT : But if it touches -- for instance, if it says that all federal elections shall take place on, on a Wednesday but we want to have state elections on a Tuesday, we have to have them on a Wednesday? MR. ARONCHICK : No. I think -- I mean, I think it's an interesting question. But I think if the State Constitution says state elections, elections only for stat e

37 Case :0-cv-00-GLL Document Filed 0//00 Page of 0 0 officers, when they are the only ones on the ballot, or the Election Code says that, have to occur on Tuesday, that somehow our State of Pennsylvania will have to figure out how to have an election day for those on a different day. But we don't have that here. That -- THE COURT : No. I'm trying to get to the extent of your argument. It seems to me you have an Article I, Section of the United States Constitution, which I understand this HAVA is passed under. MR. ARONCHICK : Right. THE COURT : And it's essentially saying we're going to conduct federal elections. MR. ARONCHICK : Right. TIC COURT : And your argument is essentially one that Article VII, Section of the Pennsylvania Constitution, what you're saying is that was meant to cover federal and state laws and once the federal law is passed, that anything in this, this, that's contained in Article VII, Section must fall because it says all laws regulate that the holding of elections by citizens for the -- shall be uniform throughout the state? MR. ARONCHICK : Absolutely. And the implementation laws as well. The Election Code says the same. I mean, they're not separate. THE COURT : So essentially you're saying, which is ~ ~

38 Case :0-cv-00-GLL Document Filed 0//00 Page of 0 0 an interesting interpretation, that the feds, that the state has delegated under its Constitution to the Congress on the manner in which elections will be held in Pennsylvania? MR. ARONCHICK : Well, I don't think that they've delegated it. I mean, if Congress -- no, I mean, they haven't necessarily delegated it. They -- THE COURT : That's essentially the crux of your argument, it's always preempted. You better say that, or you kind of like -- MR. ARONCHICK : No. I mean, it's the crux. But you can imagine a situation that we don't have here ; you can imagine a situation that we don't have here, Your Honor, where the General Assembly can try to figure out, maintaining uniformity -- I mean, this is a hypothetical situation ; but trying to figure out, maintaining uniformity, how to separate off-year elections from federal and state combined elections and try to figure out some way with uniformity to run a separate system with separate statutes, separate referenda. I mean, I don't think anybody is going to do that. But if we're talking high theory, I suppose that that is still reserved to the General Assembly to try to figure out how to accomplish that. THE COURT : Essentially you're making a text argument. MR. ARONCHICK : I'm making -- L

39 Case :0-cv-00-GLL Document Filed 0//00 Page of 0 0 THE COURT : You're making a text argument i n Article VII, Section. MR. ARONCHICK : Yes, in HAVA. THE COURT : You're saying all laws regulating the holding of elections by citizens -- you're saying holding of elections, so that means all elections ; and because it means all elections, when the federal government changes something regarding its elections, then any, all the other election s must comply with that? MR. ARONCHICK : Unless the thing that's changed -- THE COURT : I understand that. MR. ARONCHICK : -- doesn't thwart the, or is an obstacle to what it is that the federal government has changed or wants to accomplish. THE COURT : Okay. MR. ARONCHICK : I mean, there might be some things that aren't obstacles that are harmonious. THE COURT : Essentially you're making a text argument. You're saying that all laws regulating the holding of elections, so that means all elections, and if the fells do something for one election, it preempts it for -- for it s elections, it preempts it -- because then it wouldn't be all elections, it must -- that's a conflict preemption that applies to all elections? MR. ARONCHICK : That I, I agree in this cas e ~ s ~

40 Case :0-cv-00-GLL Document Filed 0//00 Page 0 of here -- TIC COURT : That's your argument? MR. ARONCHICK : Here. Yes. THE COURT : talking about here. I'm not talking about the next. I' m 0 0 MR. ARONCHICK : I understand, but you asked a broader question -- THE COURT : Yeah. MR. ARONCHICK : -- about does it mean it delegates the federal government for all time and all purposes anything the federal government wants to do with regard to the conduct of our elections, and I don't know that we can go all the way there at this point. I'd have to know more specificall y whether or not -- THE COURT : But if there's something that says all elections -- I mean, why I went broader on that is because if it says all elections, the same sort of textual analysis would apply. I mean, I mean, that' s why, you know, you kind of look at the impact. And if it says all elections in the Constitution -- and we have to imply that interpretation there -- anytime it says all elections, I would have to -- the courts would have to imply that interpretation in those situations. Isn't that correct? MR. ARONCHICK : I would agree with that. ~ ~

41 Case :0-cv-00-GLL Document Filed 0//00 Page of THE COURT : Okay. MR. ARONCHICK : And to take that farther, in this, 0 some authority saying that with confidence and trust -- all federal elections require, you know, getting rid of these lever voting machines for something better and something else ; if Pennsylvania, either in its Constitutio n or in its statutes, implementing statutes, have provisions that apply referenda for all elections, then, then necessarily -- and they do, then necessarily -- because it's not separate for federal elections or municipal elections, single provision for elections in Pennsylvania, necessarily those provisions are preempted in this case. And I don't see how you then get to a position a 0 where you can say notwithstanding that, we're still going to require referenda for just purely municipal elections. That authority is not derived from anywhere. It's not, it's not stated that way in the Constitution. It's not stated tha t way in the election statutes. I mean -- THE COURT : If they said state and local elections in the Constitution, state and local elections have to have referenda to change, to change the manner, wouldn't you agre e that you'd have to have them? MR. ARONCHICK : For purely state and loca l 0

42 Case :0-cv-00-GLL Document Filed 0//00 Page of elections. 0 0 THE COURT : Instead of saying -- and that's why I keep going ; I want to understand your argument. You're saying, you're hanging your hat on it says all elections. But if it says all state and local elections have to be by paper ballot but if you want to change, you have to have a referenda, you'd be dead in the water. MR. ARONCHICK : Except for those elections where they occur at the same time as the federal election, because then the whole question would be whether or not, whether or not running a referendum and then having a parallel system otherwise meets the uniformity provisions of th e Constitution -- THE COURT : I don't see any, I don't see any uniformity problems here. MR. ARONCHICK : The Election Code -- THE COURT : I don't think there's a uniformity problem. MR. ARONCHICK : Uniformity in the sense of election day when voters -- and the implementation statutes of the Election Code. I mean -- THE COURT : Let's say, let's say somebody likes the Diebold system. MR. ARONCHICK : I don't mean that. THE COURT : Well, you will use the DVR system, and

43 Case :0-cv-00-GLL Document Filed 0//00 Page of 0 0 the state likes the optical scan system. And say you got a paper ballot at the end of the day with it. So we like this one better ; both of them meet the act. And both have the trust of the system, and both of them -- you know, they're both in compliance with HAVA. MR. ARONCHICK : No. What I'm -- THE COURT : It's just administrative inefficiency. Nobody would want to do that. MR. ARONCHICK : What I meant is a little bit different, a different concept of uniformity. If you had a Constitution that said all state and municipal elections, you have to have some kind of a referendum, all right, if our Constitution happened to say that or, you know, the implementing statutes said that. And if you had a situation that the particular election cycle had both federal and state offices like in '0, like we have now, and if you have HAVA that says for the federal elections, we're going to be preempting your use of lever voting machines and notwithstanding any referendum requirement or anything like that, you can't do it because you can't vote them in when you say we can't have them. So the referendum is a nullity. The question then of whether you have the state and local preempted as well in that cycle, notwithstanding what the Constitution might say, turns on the notion of are yo u