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Judge Diamond’s Big Miscalculation
By Emily Cook
Many Greens are aware that Jill Stein sued the Commonwealth of Pennsylvania following the 2016 election to reveal that voters could not demand a recount of voting machines that were unverifiable. The subsequent settlement, among other things, required a true paper ballot. Once the counties started purchasing the machines, Stein’s committee found that the Election Systems & Software ExpressVote XL (ES&SXL) did not provide a true paper ballot. She therefore reopened the settlement in November 2019. I was a plaintiff as well an observer in the courtroom in the reopening of the settlement. I also observed the mostly thankless role which Jill Stein had in doing what was right for the voters. Judge Paul S. Diamond released his opinion on April 29, and it was not favorable.
With the pandemic disrupting most aspects of civic life, one might feel that the prospect of voting in person at a polling station is dangerous and/or even irrelevant. The paper ballot problem is only temporarily resolved by mail in ballots. Troubles remain with these machines and these troubles will return to haunt the public in every election following the pandemic. Undercounting has already been shown in Northampton County, PA. Without a true paper ballot, we still do not have verifiability of the vote in many counties in the Commonwealth.
Jill Stein’s challenge to decertify the ES&SXL in Federal Court just preceded the pandemic. The judge asserted that Jill Stein’s “co-Plaintiffs have played no discernible role.” He then unfairly proceeded to dump on Jill Stein, feeling there was no one else.
In Judge Diamond’s courtroom, I felt the scene would have pleased central casting for a John Grisham book-to-movie. There were state officials playing their role, evasive and unhelpful. The judge was, for his part, hostile to our counsel throughout. Once he even barking at them, “Don’t waste my time,” as if they were unruly children. Diamond openly chatted with the defense and interfered far less with their arguments than ours. Must he have been so obvious?
Diamond also snarked in his opinion that this “litigation appears to have created a single benefit that would not otherwise have been conferred: the payment of $150,000 to Stein’s lawyers.” Any decent judge knows better than to comment about professional fees in an opinion. It’s unprofessional, and it shows pettiness. A simple perusal of Diamond’s own career reveals he was probably more than compensated as an attorney coming up. Such wisecracks belong in chambers or in the local courthouse watering hole.
What was not allowed in the case — or was outside its scope – was the long, ugly process by which the Philadelphia City Commissioners, for example, took money from the poorest city in the country to purchase voting machines that are demonstrably hackable, that do not use true paper ballots and are more overpriced than superior machines used in other parts of the state. Last year City Controller Rebecca Rynhart was compelled to criticize the Commissioner’s courtship with ES&S, going as far back as 2013. Organizations like Protect Our Vote Philly along with a coalition of other concerned voters have been protesting the purchase of the ES&SXL for quite some time. The City of Philadelphia nevertheless bulldozed through, unchallenged, unfazed and unaccountable. Voters may not be paying attention now, but just wait until the next close election.
Judge Diamond’s opinion will, therefore, go down in history as one big, bellicose miscalculation. He will have to own it once the machines start failing or voters demand recounts. We had every right to reopen the settlement based on violations of the agreement in our original case. Without true paper ballots, PA’s inability to verify the vote remains. It will be voters who lose because they deserved a fair and reliable voting system no matter who brought the lawsuit.
Lastly, the Federal courtroom is not the judge’s own living room, no matter how unscrutinized his work often is. Ultimately, the court belongs to the public seeking justice. We didn’t get it with Diamond. Instead, we got the rantings of a court pushed to understand something beyond their ability. Although Jill Stein and the Green Party are accustomed to excessive and largely undeserved criticism from all quarters, a legal opinion should require reason. Stein, trying to do what was right, didn’t deserve such piling-on in this thankless pursuit.
Emily Cook is a former chair of the Green Party of Montgomery County, PA, and a former delegate to the Green Party of Pennsylvania.
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