Pennsylvania Advisory Opinions August 11, 1930: AGO 65

Advisory Opinion Text

S. M. R. O 'HARA DEPUTY ATTORNEY GENERAL

Election low-Voting machines- Approval by Secretary of Commonwealth- Revocation-Act of April 18, 1929, P. h. 549-Change in device-Procedure1 -Petition of elector-Security required.

1. Where a voting machine has been approved by the Secretary of the Commonwealth, in accordance with the Act of April 18, 1929, P. L. 549, and no change in device in such machine has been made, the approval once given cannot be revoked.

2. Where, upon examination, a voting machine is found to have been changed in device so as to impair its accuracy or efficiency, the Secretary of the Commonwealth may re-examine and refuse, to approve the machine as changed, and may cancel the existing approval, notifying the several county commissioners so that they may take proper steps to withdraw the machine.

3. Such re-examination may be initiated upon complaint of an elector under oath alleging such change, accompanied by the statutory fee or a bond with approved surety to secure the payment of the cost of such examination.

Department of Justice, Sir: We have your communication of July 28, 1930, wherein you state that complaint has been made to you that the Shoup Voting Machine, heretofore approved by the Secretary of the Commonwealth under and pursuant to the provisions of the Act of April 18, 1929, P. L. 549, and used in the Primary Election of May 20, 1930, in Philadelphia, improperly registered votes which apparently had not been east by any voter, and in which you submit for our opinion the following questions:

'' Where it is shown that a certified or approved voting machine is susceptible of fraud or error which impairs its accuracy, efficiency, or capacity, may the Secretary of the Commonwealth invalidate temporarily the certificate of approval issued to the manufacturer of such voting machine pending determination of the allegation or complaint against the machine?

"Where it is shown that a voting machine so certified and approved, is actually susceptible of fraud or error and that its accuracy, efficiency, or capacity, is or has been impaired, may the Secretary of the Commonwealth revoke and invalidate permanently certificate of the approval heretofore issued for such machine ?''

The Act of April 18, .1929, P. L. 549, provides:

"Section 6. (c) No kind of voting machine not so approved shall be used at any election.

"(d) When a machine has been so approved, no improvement or change that does not impair its accuracy, efficiency or capacity, shall render necessary a re-examination or reapproval of the machine, or of its kind."

"Section 7. (e) It shall preclude each voter from voting for any candidate, or upon any question, for whom or upon which he is not entitled to vote, and from voting for more persons for any office than he is entitled to vote for, and from voting for any candidate for the same office or upon any question more than once, except in districts and for offices where cumulative voting is authorized by law."

If the complaint above noted is due to defect in mechanical device and not to defect acquired by use of the machine, it would appear that either there has been a change in the machine since its approval, or that the machine does not meet the requirements of the Act of April 18, 1929, P. L. 549, and, if sustained by proper evidence, that such change or defect in the mechanical device impairs its accuracy, efficiency or capacity.

If there has been a change in the mechanical device after its approval, the Act of Assembly specifically recognizes the necessity for reexamination and reapproval of the machine, and in the absence of statutory designation of the procedure by which such reexamination may be accomplished, the Secretary of the Commonwealth may initiate such reexamination upon complaint of an elector of the Commonwealth, under oath filed with him, alleging such change, and accompanied by the statutory fee or a bond, with surety approved by him as to sufficiency and amount (which amount should not exceed double the fee for an initial examination) to secure the payment of the cost of such examination.

If upon such reexamination, the machine is found to have been changed in device so as to impair its accuracy, efficiency or capacity, the Secretary of the Commonwealth may refuse to approve the machine as changed and may cancel the existing approval, notify the several county commissioners of the substitution, so that the county commissioners may take proper steps for the withdrawal of the machines and protect the county against loss incurred through delivery of the substituted device.

If, on the other hand, no change in device in such approved machine is claimed, the Legislature has unfortunately failed to provide any method by which the Secretary of the Commonwealth can require a reexamination and review the approval which he has given. This is a serious defect in the Voting Machine Act, but it is a defect which can be remedied only by legislative action. We are, therefore, obliged to advise you that there is no procedure under which the Secretary of the Commonwealth's approval of the voting machine once given can be revoked, as long as the identical machine which he has approved is supplied by the manufacturer.

Very truly yours, DEPARTMENT OP JUSTICE,

S. M. R. O 'HARA DEPUTY ATTORNEY GENERAL