Stein v. Boockvar

JILL STEIN, et al., Plaintiffs, v. KATHY BOOCKVAR, in her official capacityas Secretary of the Commonwealth of Pennsylvania, et al., Defendants.

Civ. No. 16-6287

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

April 29, 2019

Diamond, J.

MEMORANDUM

In moving to enforce the Agreement settling her 2016 lawsuit, failed presidential candidate Jill Stein asks me to bar the use of almost 4,000 voting machines, thus making it impossible for Philadelphia to participate in the 2020 presidential election. This is of a piece with the 2016 action itself: Stein's eleventh-hour voting machine "hacking" allegations and request for a recount that would have disenfranchised some six million Pennsylvania voters. In both instances, Dr. Stein publicly announced that she seeks to promote election integrity. Yet, the Commonwealth suggests that she seeks to promote only herself. Pennsylvania's computer expert testified credibly in 2016 that Stein's allegations "are approximately as likely as the fact that androids from outer space are living amongst us and passing as humans." (12/6/16 Hr'g Tr. 63:23-64:9.) Her allegations now—that the challenged voting machines are unreliable and thus violate the Settlement Agreement—are as baseless and irrational. I will deny her Motion.

I. PROCEDURAL HISTORY

Dr. Stein and several Pennsylvania voters filed the instant Motion on November 26, 2019—almost a year after this case settled. (Doc. No. 112). Over Stein's opposition, I granted the Philadelphia Board of Elections' and the City's Motion to Intervene as Defendants (although I will refer to all Defendants as the Commonwealth). (Doc. Nos. 131, 136 ¶ 2); Fed. R. Civ. P. 24(a). In the same Order, I identified factual issues to be addressed at an evidentiary hearing. (Doc. No. 136 ¶ 4.) Following a telephone conference with the Parties, I decided various motions and found that the Commonwealth had made a prima facie showing that Stein's delay in filing the instant Motion was unwarranted and prejudicial. (Doc. No. 161.) I also set out procedures for the hearing that began on February 18. (Id.) The Parties introduced documents and called witnesses, including the product manager of the ExpressVote XL (the challenged voting machine), who demonstrated its use. At the hearing's conclusion on February 21, 2020, I asked the Parties to submit proposed findings and conclusions. The matter has been fully briefed. (Doc. Nos. 180 & 182.)

II. LEGAL STANDARDS

I have jurisdiction to enforce the terms of the Settlement Agreement. (SA ¶ 13; see Dismissal Order ¶ 3, Doc. No. 110); Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 381 (1994). "Motions for the enforcement of settlement agreements resemble motions for summary judgment, and courts employ a similar standard of review." Orthophoenix, LLC v. Stryker Corp., 2017 WL 1197675, at *4 (D. Del. Mar. 28, 2017); see Tiernan v. Devoe, 923 F.2d 1024, 1031-32 & n.5 (3d Cir. 1991); Myers v. AutoZoners, LLC, 2017 WL 6316586, at *7 (W.D. Pa. Dec. 11, 2017). I "must treat all of the non-movant's assertions as true, and, 'when these assertions conflict with those of the movant, the former must receive the benefit of the doubt.'" Orthophoenix, 2017 WL 1197675, at *4 (D. Del. Mar. 28, 2017) (quoting Tiernan, 923 F.2d at 1032). I must "view the facts in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor." Myers, 2017 WL 6316586, at *7 (quoting Adreoli v. Gates, 482 F.3d 641, 647 (3d Cir. 2007)). Enforcement is appropriate only if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a).

III. BRIEF OVERVIEW

In settling the Stein lawsuit, the Commonwealth emphasized that it was simply implementing the decision it had made well before: to "replace [Pennsylvania's] aging voting equipment in the next few years" with "modern machines [that] will include a paper record" the voter could review. (Wolf Press Release, Jx 2.) Stein's lawsuit had nothing to do with that decision, which was part of a national movement away from Direct Recording Electronic voting machines ("DREs") that record votes only electronically. When the Settlement was negotiated, the sole concern expressed by Stein's lawyers or "expert" was that the Commonwealth might extend its use of DREs (which the Commonwealth had already committed to retiring). Accordingly, in entering into the Agreement, Stein understood that Pennsylvania was considering for statewide approval—"certification" under state law—machines which maintained a paper record that could be reviewed by the voter and audited (if necessary). Among them was the ExpressVote XL.

In the eight months following the Settlement, Stein expressed no concern as the Commonwealth certified various machines which, in turn, were purchased by counties throughout Pennsylvania. Only a year after settling did she allege that the XL did not comport with the Settlement Agreement, although she repeatedly changed the basis for her objection. By then, however, Philadelphia had already purchased some $30 million of these machines. Two smaller counties had also purchased XLs. The credible evidence shows that the XL is exactly the kind of voting machine contemplated by the Agreement, and that Stein has not shown that I should grant her belated Motion.

IV. RELIEF REQUESTED

Like her challenge to Philadelphia's voting machines, Stein's request for relief continues to "evolve." Stein initially urged that because the XL does not comport with the Agreement, Ishould order its immediate decertification. (Pls.' Mot. to Enforce 2.) Although she never amended her Motion, she subsequently altered her request for relief. Likely realizing that the XL's immediate decertification would make it impossible for Philadelphia to conduct its 2020 primary election (which the Commonwealth has moved from April 28 to June 2), she suggested in her Reply Brief that I might order the Commonwealth to decertify the machines after the primary. (Pls.' Reply Br. 15.) Given the compelling evidence that Philadelphia could not replace the XLs in time for the November 2020 presidential election, however, she again has changed her request for relief, this time suggesting that "the appropriate course is not to deny the motion, but to order decertification for 2021." (Pls.' Proposed Conclusions of Law 22.) Remarkably, in the next sentence, she reverts to her previous request, urging me to "order the Secretary of the Commonwealth to decertify the ExpressVote XL in time for the November 2020 General Election." (Id.)

Dr. Stein's inability to decide what relief she wants underscores her Motion's lack of factual or legal basis.

V. FACTUAL FINDINGS

From the outset, the Parties disputed "material facts concerning the . . . terms" of the Settlement Agreement. Tedesco Mfg. Co.v. Honeywell Int'l, Inc., 371 F. App'x 316, 319 (3d Cir. 2010). Accordingly, I conducted the February 2020 hearing. See Leonard v. Univ. of Del., 204 F. Supp. 2d 784, 786 (D. Del. 2002). Three of the four witnesses Stein called were adverse—employed by the Commonwealth or the City. Her only witness was computer expert, J. Alex Halderman, PhD, whose ill-considered theories formed the basis of both Stein's original Complaint and the instant Motion to Enforce. I largely discredit Halderman's testimony and credit the testimony of the other witnesses called both by Stein and the Commonwealth: Secretary of State Kathy Boockvar; Department of State Chief Counsel Timothy Gates; DOS Executive DeputyChief Counsel Kathleen Kotula; Dean Baumert of Election Systems & Software (the company that manufactures and markets the XL); City of Philadelphia Procurement Commissioner Monique Nesmith-Joyner; and Executive Director of the Philadelphia Board of Elections Joseph Lynch. Based on their testimony and related evidence, I make the following findings. Because the record shows that Dr. Stein was and remains the moving force behind her Motion—while her co-Plaintiffs have played no discernable role—I have referred only to her throughout.

A. 2016 Litigation

On December 5, 2016—a week before Pennsylvania's deadline to certify its presidential electors—Dr. Stein and voter Plaintiff Randall Reitz filed a Complaint, alleging statewide voter fraud caused by massive "hacking" of Pennsylvania's DRE Machines. (See, e.g., Pls.' Mem. of Law in Support of PI Mot. 27, Doc. No. 5 ("Pennsylvania uses antiquated, vulnerable voting machines easy to hack . . . ."); id. 29 ("The right to vote would be meaningless if it meant only the right to cast a vote on Election Day, with no assurance that the vote was accurately counted.").) Stein sought, inter alia, invalidation of significant parts of Pennsylvania's Election Code, and a mandatory injunction: (1) requiring the Commonwealth Secretary to recount the votes cast in the November 2016 presidential election; and (2) allowing Stein to conduct forensic examinations of Pennsylvania's DRE voting machines. (Doc. No. 1.) Like the relief she seeks now, her requested relief in 2016 also "evolved": during the December 9, 2016 evidentiary hearing, Stein narrowed her request, ultimately seeking "a hand recount of all paper ballots of one precinct in each of the seventeen paper-ballot Counties and a forensic review of the election management systems of six Counties, including Philadelphia." (PI Mem. Op. at 8, Doc. No. 55.) Granting even this narrowed request would have precluded timely certification of Pennsylvania's presidential vote.

I refused her injunction request on five alternative grounds. (Doc. Nos. 54 & 55.) Threshold defects—including Stein's lack of standing and her prejudicial, unexplained delay—barred relief. Moreover, Stein showed neither any likelihood that she would succeed on the merits of her claims, nor any threat of immediate, irreparable harm. Indeed, Stein presented no evidence that any hacking had actually occurred. The only part of Dr....