Court rejects Republican attempt to avoid statutory requirement for verifiable elections results in 2010...

Brad Friedman Byon 11/7/2009, 9:02am PT

In 2008, election integrity advocates in Tennessee won a hard and long-fought victory as the state legislature finally passed, on a bi-partisan basis, the Tennessee Voter Confidence Act (TVCA) requiring the state's wholly unverifiable touch-screen voting machines to be replaced with precinct-based optical-scan paper balloting in time for the crucial 2010 general election.

But in November of 2008, as the state was still using its completely faith-based electronic voting systems, it somehow managed to buck the national trend as the only state in the nation to see legislative gains for the Republican Party which managed to win a majority in the statehouse in the bargain. Ever since, the GOP majority, along with the Republican Secretary of State and Election Director, have been fighting against implementation of that paper ballot law.

A move in the legislature to delay the law until 2012 was narrowly defeated --- by a single vote --- earlier this year, but the state's Republican apparatchiks have continued attempts to forestall following the rule of law.

Late this week, however, a Nashville judge issued a ruling in a case brought by Common Cause seeking to force Secretary of State Tre Hargett to immediately implement the law he's so far refused to act on...

The Rule of Law

On Thursday, Chancellor Russell Perkins found the state must move ahead with replacement of voting machines as required by the statute, though he failed to offer the immediate injunction Common Cause had sought.

The ruling appears to be a victory for the plaintiffs nonetheless, as Perkins ruled against the state's argument/delay tactic that there were no currently certified voting machines that meet the law's mandate for systems that are federally certified to 2005 standards. You see, the law actually contains no such mandate. The judge determined that the law does not require that the new systems meet 2005 standards --- there are currently none certified to that standard --- and that systems meeting the 2002 federal standards are perfectly legal.

The TVCA states only that new optical-scan systems must meet "applicable voluntary voting systems guidelines" and says nothing about 2005 standards. Despite that, Hargett went so far as to issue an official "Questions and Answers about the Tennessee Voter Confidence Act" document in June of this year, asserting to his constituents, incorrectly, that "The act requires counties to use equipment that meets the security and reliability standards adopted by the federal Election Assistance Commission in 2005."

Hargett was making up that assertion out of whole cloth. His document, once posted on the SoS website here, has since been removed, but can still be found in Google's cache here.

"The TVCA does not require the voting system to be implemented by the State of Tennessee to meet 2005 standards," Chancellor Perkins said in his ruling on Thursday. "The Court determines that the State is obligated to take prompt, effective steps to meet the statutory deadline using compliant voting systems."

GOP To Continue Fight For Unverifiable Systems

Nonetheless, Republicans in the state plan to continue their fight against the law and are expected to take up yet another attempt to delay it when the legislature reconvenes in January.

In addition to their now-failed argument concerning the 2005/2002 standards, GOP officials are attempting to exploit hard economy times as yet another reason to avoid following the rule of law. In his statement following the ruling, SoS Hargett said "Responsible legislators argue with these hard economic times upon us, it is not the time for additional taxes or government spending."

But Democratic proponents counter that the state has plenty of funds to meet the statute, as they've received some $35 million in federal funding from the Help America Vote Act (HAVA) of 2002.

Clearly Hargett plans to continue dragging his feet in hopes the state will change the law when the legislature revisits it in January. He noted in his statement that he's "preparing" to move to paper ballots "as directed under current law." [emphasis ours] Projecting his intention of further delay, he also added, "We understand this debate will continue in the next legislative session."

A History of Problems, Republican Denialists

Tennessee was one of several states where serious problems with touch-screen voting were reported during the 2008 election cycle. One notable, and perhaps ironic, case was that of Nashville filmmaker Patricia Earnhardt, executive producer of 2008's award-winning election integrity documentary, Uncounted: The New Math of American Elections. In October, during early voting for the 2008 general election, as The BRAD BLOG reported at the time, Earnhardt first had trouble convincing her ES&S touch-screen voting machine to register her selection at all in the Presidential contest. After calling for help from a poll worker, she then saw her vote for Barack Obama flipped on the screen to another candidate.

In 2007, The BRAD BLOG sat in on a meeting of the Davidson County, TN, Election Commission in Nashville as the three hapless Democrats, who enjoyed the majority on the commission at the time, were steamrolled by the two Republicans who virtually ran the session on their own.

Afterwords, Republican Commissioner Lynn Greer --- who we had attempted to warn about the troubles the county would eventually face with their unverifiable touch-screen voting systems --- told us, with a straight face, that "paper ballots are the greatest fraud ever perpetrated on America."

Greer has since become the official chair, not just the ostensible one, of that commission.

Whether Republicans like Greer, Hargett and state elections Coordinator Mark Goins will continue to defy the will of the people, the legislature and the rule of law remains to be seen. We suspect they will try everything they can to do so, though Common Cause is likely to return to court if the stalling tactics and failure to meet the state statute continue.

The Proofers

In the meantime, Nashville progressive radio host --- and election integrity advocate --- Mary Mancini has used her show, Liberadio, to call for evidence from anyone in the state that any vote ever cast during an election, on any of the state's unverifiable touch-screen voting machines, for any candidate or initiative on the ballot, has ever been recorded as per the intent of any voter. To date, no official has been able to present a shred of evidence to her towards that end in her ongoing "Operation: Please Offer Proof (P.O.P.)" campaign.

It's unlikely any such evidence will be presented, as none --- absolutely zero --- actually exists...and all indications seem to suggest that the state's lead Republicans, as they barrel towards the crucial 2010 re-apportionment elections, enjoy things exactly that way.



