Honey v. Lycoming Cty. Off. of Voter Serv.

312 A.3d 942

Heather HONEY

v.LYCOMING COUNTY OFFICES OF VOTER SERVICES

Appeal of: Al Schmidt, in his Official Capacity as Secretary of the Commonwealth

No. 57 C.D. 2023

Commonwealth Court of Pennsylvania.

Argued December 6, 2023

Decided March 4, 2024

Appealed from No. CV-22-00115-OR, Common Pleas Court of the County of Lycoming, Eric R. Linhardt, J.

Jason E. McMurry, Assistant Counsel, Harrisburg, for Appellant The Pennsylvania Department of State.

Austin White, Williamsport, for Appellee Lycoming County Offices of Voter Services.

Heather Honey, Pro Se, Appellee.

Thomas E. Breth, Butler, for Appellees Jeffrey J. Stroehmann, Donald C. Peters and Joseph D. Hamm.

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge, HONORABLE PATRICIA A. McCULLOUGH, judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE MICHAEL H. WOJCIK, Judge, HONORABLE ELLEN CEISLER, Judge, HONORABLE LORI A. DUMAS, Judge, HONORABLE STACY WALLACE, Judge

OPINION BY JUDGE CEISLER

Appellant Al Schmidt, in his Official Capacity as Secretary of the Commonwealth (Secretary),¹ appeals from the Court of Common Pleas of Lycoming County’s (Common Pleas) December 16, 2022 order. Through that order, Common Pleas reversed the Pennsylvania Office of Open Records’ (OOR) January 6, 2022 Final Determination. In that Final Determination, OOR had denied Appellee Heather Honey’s (Honey) Right-to-Know Law (RTKL)² request for a digital copy of the ClearVote Cast Vote Record (CVR) for the 2020 General Election from Lycoming County’s Electronic Voting System (EVS).³ After careful review, we reverse.

I. Background

As cogently explained by Common Pleas, the genesis of this matter occurred when Honey filed her RTKL request with the Lycoming County Office of Voter Services (Voter Services) on October 20, 2021, in which she sought

a "[d]igital copy of the [CVR] for every precinct tabulator and central tabulator used in the 2020 General Election."^[FN3]

… ClearVote is the election management system that [Voter Services] uses to conduct elections in Lycoming County. In elections utilizing the ClearVote system, each voter fills out a physical ballot and inserts it into a scanner, which reads the ballot and transmits the results to a "tabulator," a piece of equipment that counts votes. Each precinct has one scanner and one associated tabulator. The results from each precinct tabulator are then transferred to the central tabulator for Lycoming County. Ballots not cast on [E]lection [D]ay — such as mail-in and absentee ballots — are processed directly by the central tabulator. Thus, the CVR for each precinct tabulator is a spreadsheet showing raw data associated with the ballots cast at that precinct, and the CVR for the central tabulator is a similar spreadsheet showing raw data associated with every ballot cast in Lycoming County.

On November 18, 2021, [Voter Services] denied [Honey’s] RTKL request on the basis that "[t]he contents of ballot boxes and voting machines are not public pursuant to [Section 308 of] the Election Code[,] 25 P.S. § 2648."^[FN4] On November 24, 2021, [Honey] appealed that decision to the [OOR], which solicited briefing and other relevant information from the parties.^[FN4]

Section [308] of the Election Code provides that most records and documents in the possession of each county’s board of elections are open to public inspection, except for "the contents of ballot boxes and voting machines and records of assisted voters. …" 25 P.S. §2648.

On January 6, 2022, the OOR issued a Final Determination denying [Honey’s] appeal. In the Final Determination, the OOR first discussed [Section 308] and its exception to public inspection. The OOR reviewed the affidavit of Forrest Lehman ([ ]Mr. Lehman[ ]), Director of Elections for Lycoming County, which provided information about the process by which votes are scanned and stored in Lycoming County. Mr. Lehman ultimately asserted [Voter Services’] belief that CVRs fall under the exception to public inspection in [Section 308,] because "[r]eviewing a CVR is the digital equivalent of inspecting the contents of aballot box, one ballot at a time." The OOR also reviewed [Honey’s] argument that CVRs do not fall under the exception in [Section 308] but are instead analogous to other records that are available for public inspection.

After considering the parties’ arguments, the OOR denied [Honey’s] appeal on the basis that it found Mr. Lehman credible and knowledgeable, rendering it improper for the OOR to "substitute its judgment for that of those with far more familiarity with the issues." Specifically, the OOR determined that "the CVR is the digital equivalent of the contents of ballot boxes," and thus not a public record under [Section 308] of the Election Code.

Common Pleas Op., 12/16/22, at 1-2 (some footnotes omitted).

Honey then appealed the OOR’s decision to Common Pleas. On May 16, 2022, Appellees Jeffrey J. Stroehmann, Donald C. Peters, and Joseph D. Hamm (collectively Intervenors) filed a joint petition to intervene, which Common Pleas subsequently granted. Common Pleas then held two days of evidentiary hearings in June 2022, and subsequently issued an opinion and order, through which it adjudicated Honey’s appeal, on December 16, 2022.⁴

In its opinion, Common Pleas first addressed the assertion that Honey and Intervenors lacked standing to pursue the appeal. With regard to Honey, Common Pleas concluded that she did not have standing to obtain the CVR she had requested, because she was registered to vote in Lebanon County and, thus, was not a "qualified elector" under the Election Code. Common Pleas Op., 12/16/22, at 47-49.⁵ Common Pleas did not reach the same conclusion regarding Intervenors, and instead held that they had standing to pursue in their own right the claims Honey had put forth on her behalf. Id. at 49-50.

Moving on to the merits, Common Pleas then analyzed the language used in Section 308 of the Election Code to determine whether CVRs were rendered exempt from public disclosure. Common Pleas broke its statutory analysis down into three parts, each of which focused upon a single word or phrase used in the statute: "ballot boxes," "voting machines," and "contents." First, it concluded that the plain meaning of "ballot boxes" in the Election Code was consistent with the dictionary definition of the term as a "locked box into which ballots are deposited after voting[,]" as well as that "the sealed bags attached to scanners, into which ballots fall after they are scanned, are ‘ballot boxes.’ " Id. at 53-54. Second, Common Pleas noted that the Election Code did not define "voting machines," but concluded that, under existing case law and certain provisions of the Election Code, not every EVS constituted a voting machine for purposes of this statutory scheme. Id. at 54-56. On that basis, it ruled that the optical scanners used to record the votes made on paper ballots in Lycoming County did not qualify as voting machines under the Election Code. Id. at 57. Finally, Common Pleas deemed the word "contents" to be ambiguous, stating that

[c]learly, the term "contents" as used in the Election Code covers at least the physical sense of ballots physically inside of a ballot box. However, it is unclear whether the term also includes things that are contained in "ballot boxes and voting machines" more abstractly, such as intangible information or ideas that are "within" a ballot box or voting machine in a less-than-physical sense.

Id. at 58. As a result, Common Pleas concluded "that the phrase ‘contents of ballot boxes or voting machines’ as used in [Section 308] is susceptible to multiple reasonable readings, and thus does not have a single plain and unambiguous meaning." Id. Common Pleas then turned to the rules of statutory construction to resolve this putative ambiguity, considering the history and purpose of both Section 308 and the Election Code as a whole; the Department of State’s (Department) administrative reading of Section 308; and the consequences of adopting each side’s preferred interpretation. Id. at 58-67. Ultimately, Common Pleas ruled that the public access restriction imposed by Section 308 was to be construed narrowly, and concluded that the General Assembly "intended the ‘contents’ of ballot boxes or voting machines to refer to voted ballots physically deposited into ballot boxes and the mechanical inner workings of voting machines, rather than the information ‘contained’ in those physical items." Id. at 68.

Applying this logic to the matter-at-hand, Common Pleas held that the CVR in this matter was not shielded from disclosure by Section 308 and, thus, was a public record that could be obtained via an RTKL request. Id. Common Pleas then reasoned that disclosure of the CVR would not violate the Pennsylvania Constitution’s ballot secrecy requirement, because the record evidence established "that the order of the numbered list of voters [in the CVR] does not necessarily correspond to the order in which ballots are cast"; in Common Pleas’ view, this data randomization rendered tenuous any concerns that disclosure would result in a breach of that requirement. Id. at 69-72. As a result, Common Pleas ordered Voter Services to provide Intervenors with the CVR from the 2020 General Election in Lycoming County, but stayed its order for 30 days, so that it would not go into effect until the appeal window had closed. Id. at 73-74.

This timely appeal followed.

II. Discussion

[1] Secretary presents two arguments for our consideration, which we summarize as follows.⁶ First, Common Pleas erred by concluding that Section 308 of the Election Code is ambiguous. To the contrary, Section 308’s plain language exempts CVRs from disclosure for three reasons: (a) a CVR is the electronic, modern-day equivalent of all voted ballots contained in a ballot box; (b) EVSs like the optical scanners used by Lycoming County qualify as voting machines under the Election Code, and CVRs are the contents of those EVSs; and (c) reading ...