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William & Mary Law School | Election Law Society

The Tennessee Voter Confidence Act

On November 5, a Tennessee judge declined to an issue an injunction that would have forced the Secretary of State to comply with the Tennessee Voter Confidence Act passed in 2008. The act requires all 95 counties to discard electronic voting machines in favor of paper ballots. Understandably, the act has become an extremely controversial issue in Tennessee politics.

The Tennessee Voter Confidence Act (TVCA) passed nearly unanimously last year in response to growing fears over the integrity and security of electronic voting machines. Tennessee was recently rated by the organization Gathering to Save Our Democracy as one of the eight states in the nation most vulnerable to vote-counting abuse because of its reliance on computerized systems.  Currently, 93 of the 95 counties in Tennessee use some form of electronic voting machine or touch-screen system that records votes but does not produce an individual paper record of each vote.  The act requires a move to paper ballots read by optical scanners, which would allow for a paper trail and eliminate the corruption and abuse concerns associated with computerized systems. When it was first presented to the legislature, the TVCA had bipartisan support in both houses of the legislature, and was passed by an overwhelming majority.

So with such clear cut support the act, why is there so much controversy? It all stems from the implementation of the act, which as of now must be finalized in time for the 2010 elections. Issues with funding and equipment have created a movement to delay the change until the 2012 elections. The movement to delay implementation has been spearheaded primarily by Secretary of State Tre Hargett and various municipal governments in Tennessee.

The funding issue centers on the concern that local governments will have to spend millions to implement the new machines in the face of an unprecedented recession. Total statewide costs associated with the initiative have been estimated at around $25 million. However, Tennessee has been allocated over $30 million in federal funds stemming from the Help America Vote Act, which can be used to purchase the new equipment. However, Congress must approve how those funds are used, and there is no guarantee that the legislature is willing to give its implicit support to the TVCA.

Furthermore, there is also some question of what equipment is required by the legislation. That debate is over whether the statute requires equipment that meets 2002 federal standards or the most recent 2005 federal standards. This distinction may sound trivial but, in fact, machines meeting the 2005 standard do not exist yet. Hargett has claimed the law cannot be implemented because it requires 2005 machines while many around the state have suggested the machines reflecting the 2002 standards are allowed and should be purchased to expedite the change.

All this culminated last month when a lawsuit was filed by non-partisan Common Cause Tennessee, claiming that the Secretary of State Hargett should be compelled to implement the machines in time for the 2010 elections. The ruling by Davidson County Chancert Court Judge Russell Perkins gave both sides something to lean on. While Perkins refused to force Hargett to implement the act in time for the 2010 vote, he did rule that the TVCA does not require the new machines to meet the 2005 standards. This means that the state could purchase voting machines that meet the 2002 standards, and therefore fulfill the requirements of the act.

Indeed, the court ruling has done little to resolve an issue that is becoming increasingly politicized by both sides, as Tennessee has undergone a historic change in legislative control. In 2008, just months after the act passed, Republicans took control of both chambers of the state legislature for the first time since Reconstruction. Furthermore, over 30 election administrators across the state were fired after the legislature ousted long-standing Democrat Riley in favor of Republican Hargett. The change in tenor over the TVCA is most evident by the failure of legislation introduced to delay implementation until 2012. That legislation is expected to come back up for a vote early next year when the legislature reconvenes. At this point though, it appears what began as a bipartisan effort to ensure electoral integrity has now devolved into something quite the opposite.

Drew Staniewski is a student at William and Mary School of Law

Permalink: http://electls.blogs.wm.edu/2009/11/30/the-tennessee-voter-confidence-act/

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3 Comments

  1. As former chair of a CA non-partisan election integrity watchdog committee I have read your report with great interest. In 2007 the Secretary of State conducted a Top-to-Bottom-Review (TTBR)of four major voting systems. The touchscreen machines (DREs) made by two vendors were found to contain so many critical security vulnerabilities that as a re-approval condition of certification she required that only one touchscreen machine could be used per precinct. In addition, each verified voter paper audit trail on the DREs are required to be 100% manually tallied as a check against the machine tally. Thirty nine other mitigating security conditions were also imposed. As one important condition of certification the vendors were required to reimburse the counties for the cost of the 100% manual tally.

    In April 2009, one vendor informed counties using their system that it would not reimburse them for the cost of any manual tallies because it was “not in their contract.” This refusal by the vendor to comply with this condition of certification is a critical legal matter which has ramifications far beyond the reimbursement issue.

    Using software dependent technology to conduct elections, even with paper ballots, has created concealed vote processing and counting procedures which make it impossible for public observers to confirm the accuracy of election results, regardless of the audit procedures employed for “verification.”

    I encourage those who will be making this decision in Tennessee to fully investigate the CA crisis before making any decision.

    Thank you for the invitation to “speak my mind.”

  2. Our thanks to Drew Staniewski for this review of where we stand in Tennessee re: free, fair and verifiable elections. Implementing the TN Voter Confidence Act (TVCA) continues to be a nonpartisan issue, with almost all Tennesseans (including moderate Republicans) supporting its immediate implementation of this important legislation and a few far-right dead-enders fighting (with increasingly transparent motives) to keep our elections unsafe and tamper-prone.

    It is instructive to know that our group (Gathering To Save OUR Democracy) worked hard to pass the TVCA in time for it to be implemented in 2008, before the last election. There was enough time (and enough remaining HAVA money) to accomplish that. However, as a concession to some Republicans (and to a very shady State Election Coordinator in the back-pocket of voting machine companies), TVCA implementation was delayed until 2010. When, to everyone’s surprise, Republicans not only won control of our legislature for the first time in 140+ years but also won every open seat in ou legislature (the only way they could take control), they promptly announced that one of their three top legislative priorities was to repeal the TVCA.

    It is quite instructive, and more than circumstantial evidence for 2008 election fraud, that Tennessee became the ONLY state in 2008 where Republicans won more seats in our legislature, despite Democrats outnumbering Republicans here by a 47-39% margin and despite Democratic voter registration efforts outpacing Republicans by better than 4-to-1 in the months leading up to the 2008 election.

    When SoS Hargett (the wicked witch from West Tennessee) and his flying-monkey minions filed a bill last January to repeal the TVCA, they received considerable push-back from within their own party. That repeal bill then morphed into a “delay until 2012” bill, which failed to pass by a single vote in our Senate (a vote cast by the lone Republican Senator who would not be persuaded to delay democracy, Senator Tim Burchett of Knoxville). Even with that reaffirmation of the importance of 2010 TVCA implementation, Hargett rolled out yet another excuse (the 2005 standards fiction) that anyone who could read the TVCA authorizing language knew was one more baseless excuse. It took the Nashville judge less than two weeks of reviewing the issues to a) state that the 2005 requirement was a complete fiction and b) to order the SoS to move forward to implement the TVCA.

    That is where we stand now. But like every other circumstance where democracy is threatened by illegitimate forces bent on subverting the consent of the governed, we have not stopped fighting. We can’t, and pretend that we are still Americans here in Tennessee.

    It may take the intervention of the US Department of Justice but if that’s what it takes, so be it. There are more than enough “smoking guns” that presage widespread and coordinated election fraud in Tennessee and they are not all in our bars and parks.

    A few corrections to the article (besides the correct spelling of our organization’s name)

    — Our group did not rank Tennessee as one of the dozen states with the most election fraud-enabling voting systems. The nonpartisan national election integrity organization, the Verified Voting Foundation, did. When the TVCA is implemented, Tennessee will join almost 20 states with the most secure voting systems, not simply because we will switch to paper ballots and optical scan machines but also because the TVCA mandates random manual recounts in a handful of precincts in every county to verify the accuracy of the optical scan machines (which, since they are also powered by proprietary software, can also be easily hacked).

    — Much of the $37+ million in HAVA funds that Tennessee still holds was originally allocated for the replacement of voting equipment. Thus, we require no additional permission from anyone to use that money as intended. It will cost us around $25 million to put an optical scan (and a compatible ballot-marking device for disabled voters) into every TN precinct, so the replacement of our unverifiable equipment will cost our counties nothing. Of course, those counties were forced to purchase many of the unverifiable touch-screen machines with their own money, and those machines have a resale value of $0 because no true democracy on the planet wants them now. However, with the changeover to paper ballots/optical scan, our county election expenses will be 30-40% lower than they are now with the unverifiable equipment, and our elections will be conducted much faster than is possible now (because an optical scan machine allows voters to cast their votes 10 to 15 times faster than a touch-screen machine.)

    Once again, thank you for drawing attention to the ongoing, illegitimate efforts to subvert democracy here in Tennessee. Some far-right Republicans will continue to fight tooth-and-nail to keep our unverifiable equipment and the only real reason they will do so is that they like the results that equipment provides. However, we are seeing an awakening of our traditionally moderate Republican leaders and voters who now realize that the unverifiable equipment can be tampered with as easily in primaries as in general elections. Stay tuned — we expect to hear from some of those leaders soon (and it’s coming in the nick of time.)

    I may be tolerant on most issues, but on this one, I am not. That puts me in some pretty good company. Tom Paine once said “The right of voting for representatives is the primary right by which other rights are protected. To take away this right is to reduce a man to slavery. For slavery consists in being subject to the will of another. And he that has not a vote in the election of representatives is in this case.” (First Principles of Government, 1795). If he were here today, Mr. Paine (known affectionately during the American Revolution as “Common Sense”) might update one of his other famous quotes to read “It is the duty of every patriot to protect his country from its government (and from self-serving, sinister, illegitimately (s)elected election officials).”

    Who did your voting machine vote for? If Hargett and his flying-monkeys have their way, you will never know. Keep the TVCA intact and on-track for 2010.

    Bernie Ellis, MA, MPH, Organizer
    Gathering To Save OUR Democracy
    tracevu@bellsouth.net

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