Summary: Featuring guest Neal Darby, Jr., Senior Partnership Specialist Team Leader with the U.S. Census Bureau.

Don’t Confuse Your Census with Your 1040, Part 1 The Liberadio(!) “To Do” list is long this week and includes marijuana jokes, coveting the Seattle Center Monorail (and flume ride), and a historic march. Plus, love him or hate him, you know Barney Frank would never try to bite the head off a baby bunny – or would he? And we are disgusted with Sarah Palin’s unchallenged and unrelenting display of disrespect for the highest office in the land and chagrined – again – at what Tennessee Republicans and, therefore, Tennessee Democrats have decided is going to be the issue to talk about in this campaign. Then, we begin the breakdown of what’s going on with voter roll purges in Benton County. [28.14MB Click on the arrow below to listen or download mp3]Download audio file (liberadio20100412part1.mp3)

Don’t Confuse Your Census with Your 1040, Part 2 We talk to Neal Darby, Jr., Senior Partnership Specialist Team Leader with the U.S. Census Bureau and he answers all our questions about the 10 questions. Then, we continue our discussion about the controversial Benton County voter roll purges – who was affected, why, and why can’t we locate the laws that the election administrator said were followed during the purge process? [19.82MB Click on the arrow below to listen or download mp3]
Download audio file (liberadio20100412part2.mp3)

“I voted every election since 1962,” said Benton County resident Charles Hubbs, 69.

Hubbs registered to vote when John F. Kennedy was president. He said he was shocked when he received a letter in the mail from the Benton County Election Commission letting him know his voter registration was invalid.

He was even more shocked when he found out why.

Unanswered follow up question to the report: just which law is Benton County election admin Mark Ward following? We have a request in to the State Election Commission for clarification and specifics and will update when we get a reply. So far we are unable to find reference to his inorthodox approach in the Tennessee Code, the Help America Vote Act, or the National Voter Registration Act 0f 1993.

“According to state law, this is the only way to do it,” Ward said. “I don’t know any other way to do it.”

But some said Ward went too far by throwing out voter registrations from decades ago.

They said it’s especially difficult for those where the birthplace is on the registration but the citizenship box isn’t checked.

Ward said even if their birth date is on the form, he had to throw out registrations if they didn’t check the box for being over 18.

“It’s not good enough to me because the question isn’t answered on the form,” said Ward.

“Yeah, he followed the law,” said Mark Goins, Tennessee election administrator. “He did exactly what the law said.”

The state acknowledged there’s a mess in Benton County, and while it said Ward followed the law, the state doubts a judge would have invalidated the voter registrations of these longtime voters if there had ever been a challenge.

If this is happening in Benton County, it’s happening in other Tennessee counties as well. Protect your vote – confirm your registration.

UPDATE: Additional reporting from Kumari:

“It appears to me that they are going far beyond the legal, the proper reasons for purging a voter record,” said Rep. Gary Odom, D-Nashville.

Odom said he’s upset that these people are in danger of being thrown off the rolls. He said the way he reads state law, once a person is declared a registered voter, he or she can be purged only for specific reasons, such as committing a felony or dying.

He’s proposing a change to state law that says registered voters can’t be purged if their form is found to be deficient years later, and it would take effect immediately.

Because this particular meeting will be held via the telephone, this is a rare opportunity to monitor State Election Commission business without having to get out of your pajamas. (Not that you would get kicked out of the Tennessee Tower for attending a meeting in your PJs, but a day without any weird looks is always a plus.)

Within Nashville call 615-253-5120. Outside Nashville call 1-877-385-1979.

I’ll be driving to East Tennessee – also known as “God’s country” – during the meeting so Tweet me and let me know what I missed.

Addressing the lingering but increasingly moot question of the 2008 Tennessee Voter Confidence Act, Tennessee secretary of state Tre Hargett last week insisted in Memphis that “we’re going to be prepared to implement that law, no matter what” and went on to float two options. One was to lease optical-scan voting machines with 2002-vintage specificatons; another was to buy newer ones, scheduled to be marketed next spring.

Either set of machines would do what the TVCA — passed with virtual bipartisan unanimity by the 2008 General Assembly — required for the 2010 election cycle statewide: namely, count paper ballots so as to provide both an immediate electronic total and the reliability of a “paper trail” to ensure accuracy.

Hargett and state election coordinator Mark Goins had for almost a year been basing much of their opposition to implementing the TVCA on the premise that no machines were available that met specificatons of the U.S. Election Assistance Commisson. Nashville chancellor Russell Perkins effectively removed that objection in a recent ruling that extant machines meeting the commission’s 2002 guidelines would be adequate for the task.

Unfortunately, Perkins declined to grant plaintiffs’ request for an injunction directing state officials to proceed forthwith in implementing the TVCA — evidently trusting Hargett and Goins to proceed on their own in good faith.

We have noted editorially — and skeptically — once before that such good faith seemed to be lacking and that the question of implementing the act had manifestly become a partisan one, with state Democrats calling for strict compliance in time for next year’s elections and Republican officials doing their best to resist.

We predicted the next step, and, lo and behold, there it was last week in Hargett’s assertion — a fallback one, as it were — that “this has always been about the cost to the various counties” and that “the real question is if there are other costs required of the counties. We can purchase the machines, but that’s all we can do.” This was followed by this ominous declaration by Hargett: “I understand that the Senate is going to go back in January and take the necessary steps to protect the taxpayers throughout the state.”

This “protection,” of course, will take the form of postponing, amending, or revoking the TVCA.

Such obstructionism would be rash and unnecessary, and the argument behind it is disingenuous. The fact is, as Hargett concedes, that the federal government has already allocated enough funding — $25 million worth — to cover all purchase and retrofitting expenses in the 93 counties without optical-scan voting capability. Two counties already use the technology and have demonstrably saved money in the process.

For whatever reason, the state’s Republican hierarchy seems to have decided, after acquiring a legislative majority in the 2008 elections and gaining control of the state’e electoral machinery, that implementing the TVCA, with its strict controls over vote fraud, would menace their interests. We’re not sure why. What we are sure of is that we can do without the “protection” scheme heralded by Hargett.

I called to confirm that the advisory panel previously met in May 5, 2003; May 12, 2003; May 19, 2003; and June 4, 2003 but has not met since then.

HAVA mandated changes in many state election procedures (voting machines, registration processes, poll worker training), but specific implementations were left up to each state.

There have been so many changes and so much new info, it really is encouraging to see that the group has been activated again.

Without such an injunction, it seems clear that Secretary of State Tre Hargett and state Election Coordinator Mark Goins will attempt to run the clock out until January when the legislature convenes again. And the Republican majorities in both houses, fully alert now to how the game is being played, will pick up where they left off in the 2009 legislative session. That was when, on the eve of the General Assembly’s adjournment, they tried to vote a postponement of the act’s provisions until after the 2010 election cycle but narrowly failed to do so, essentially because a handful of key GOP members happened to be elsewhere on the day of the vote.

That oversight will be corrected in January, when party discipline will rule the day. The reality is that Democrats want the TVCA in effect for the 2010 election cycle and the Republicans don’t. The GOP will have the votes, and all that remains to be seen is whether the act is merely postponed or amended or quashed altogether.

Tennesseans deserve to secure and accurate elections – the kind that we can’t get now because the voting machines we use simply do not work.

The TVCA will replace the broken system we have now – where a machine votes for us under cover of a secret black box – with one in which we have a piece of paper that actually records the intent of each voter correctly – and which we can rely on for recounts and audits.

Why are they still dragging their feet?

Tre Hargett is lucky it was Judge Perkins and not Judge Judy.

All good news from a ruling last week that rejected a plea for the court to step in and “compel” Secretary of State Tre Hargett and State Election Coordinator Mark Goins to implement the Tennessee Voter Confidence Act, a.k.a. the paper ballot bill (which they have been fighting hard against, for some reason).

While the court denied the plaintiffs’ motion for a preliminary injunction, it did rule that, contrary to what Mr. Hargett has been saying, the Tennessee Voter Confidence ACT does NOT require 2005-only standards for machines.

In addition, the court said that the law must be implemented by November 2010 and that the Secretary of State is under a legal obligation to do so tout de suite.

Even more good news is all the attention this case – which is ultimately about secure and accurate elections for all Tennesseans – is receiving from the media.

Nationally, the preeminent election integrity activist and blogger, Brad Friedman – who, by the way, has been with Tennesseans fighting for secure and accurate elections from the beginning – wrote up a thorough synopsis:

The ruling appears to be a victory for the plaintiffs nonetheless, as Perkins ruled 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. Trouble is, the law contains no such mandate. The judge determined that the law does not require 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 Voting News blog also covered the hearing.

WSMV-TN Channel 4 in Nashville taped the entire hearing and posted a story on its website and Jackson Baker wrote about it for the Memphis Flyer. Baker’s piece artfully acknowledges what those of us fighting for secure and accurate elections in Tennessee understand as the next threat – delaying implementation of the TVCA as Republican legislative priority (as stated by Lt. Governor and gubernatorial candidate, Ron Ramsey):

While Hargett’s statement would appear to be guardedly compliant with the Act and Thursday’s ruling, the references to “current law” and to the prospect that “this debate will continue in the next legislative session” would seem to validate the fears of TVCA supporters that Hargett and Goins mean to postpone any effort to implement the TVCA in the hope that the General Assembly, meeting in January, will amend the Act, negate it, or postpone the date of its implementation.

Tom Humphrey at the Knoxville News Sentinel has both the news and a follow up from a statement by Dick Williams of plaintiff Common Cause:

Optical scan voting systems are now the most widely used voting method in the nation, and are used by over 60% of the nation’s voters.

“Nothing is more important than having verifiable ballots,” said Dick Williams of Common Cause Tennessee. “There is no good reason for running the 2010 elections with systems that are vulnerable to error and don’t allow a recount or an audit,” Williams said.

…

Following the hearing, Attorney Gerard Stranch for the Plaintiffs said: “The ball is now in the defendants court, hopefully, they will have greater respect for the will of the Court than they did for the will of the legislature.”

Stranch is right, the ball is in the Secretary of State’s court. But don’t expect him to quietly follow along with the will of the people. Rather, he will drag his feet until January counting on Ramsey and the Republican-led legislature to repeal the act.

Last month Jeff Woods at the Scene nailed down the most obvious follow-up question to ask of Mr. Hargett and Mr. Goins, “Why else…would Republicans fight so hard to stop an obvious good-government election reform that only a year ago enjoyed broad bipartisan support?”

In light of recent events, and as they will undoubtedly continue to drag their feet, the answer is more important and relevant now than ever before.

In 2008, the Tennessee General Assembly passed the Tennessee Voter Confidence Act (TVCA), which mandates replacing the 100% unverifiable touch-screen electronic voting machines we use now in 93 out of 95 counties with paper ballots by the 2010 election. Despite efforts to gut and delay the TVCA during this year’s session, the law still stands – and it’s Tre Hargett’s job to carry it out.

But Secretary of State Hargett says he can’t. Why? Because a legislative attorney did some research on the Election Assistance Commission website and said that he couldn’t [pdf].

In other words, instead of using legal statutes for the basis of a legal opinion on the TVCA, the legislative attorney used “…references on the [EAC] website….” And it’s that flimsy website-based legal opinion – not an opinion based on legal research as he recently stated [pdf] – that Tre Hargett is using as an excuse to not follow the law.

And here is what will happen as each day ticks by and Mr. Hargett is not held accountable for not doing his job and hiding behind this flimsy legal opinion. First, he will continue to delay implementation claiming that “it is impossible to implement” right up until the General Assembly goes back in session in January. At that time, legislators will once again carry bills that will attempt to gut and then delay the Voter Confidence until 2012. If they fail and session ends, then State Election Coordinator Mark Goins will cry that he no longer has enough time to implement the law before the November 2010 election.

Tre Hargett is using a dubious and improperly sourced legal opinion as his basis for not doing his job and carrying out the law that would give Tennesseans secure and verifiable elections. Both Mr. Hargett and Mr. Goins both know that hiding behind such a flimsy and easily dismissed legal opinion is a useful delay tactic. And they know how their delay will play out. In fact, they are betting the next election on it.

Look who joined the proofer movement!

It’s been seventeen days since I last wrote to State Election Coordinator Mark Goins. I am still waiting for a reply.

Let’s start at the beginning.

In 2008, the Tennessee General Assembly passed the Tennessee Voter Confidence Act, which would have given Tennesseans four important elements to help ensure secure and verifiable elections:

1) Paper ballots
2) Removal of unverifiable paperless touch screen electronic voting machines to be replaced with optical scan machines (to count the paper ballots)
3) The paper ballot becomes the ballot of record in case of a recount. (The touch screen electronic voting system we have now only has one mechanism in place for a recount – press the same button again and get a repeat of the exact same totals you got before).
4) Mandatory random post-election audits in 3% of precincts (to insure that the Optical Scan machines are functioning properly).

During last session, Republicans tried to kill the Tennessee Voter Confidence Act, but when they couldn’t get that done they tried to delay it until 2012. The delay failed as well. Now, because they are left with no other option, Secretary of State Tre Hargett and State Election Coordinator Mark Goins, are simply refusing to implement the law.

In the early part of August, I was compared to a “birther” (people who don’t believe that President Obama is an American citizen) because a) I believe the Tennessee Voter Confidence Act could be implemented and the Republican Secretary of State is simply refusing to do so, and b) I don’t think any votes ever cast during any election using the 100% unverifiable electronic voting machines we use now in 93 out of 95 counties in Tennessee has ever been recorded accurately, as per the voters’ intent. Ever.

So, on August 10, 2009 I started Operation: P.O.P. (Please offer proof) – a.k.a. the “proofer” movement – in which I called on Secretary of State Hargett and State Election Coordinator Goins (who doesn’t think there’s anything wrong with the voting machines we use now) to present proof to the voters of Tennessee that one vote cast electronic voting machines has ever been recorded accurately.

I sent a letter to that effect to Mr. Hargett and Mr. Goins and two days later I received a reply from Mr. Goins. It was clear from his response that he either didn’t understand my request or couldn’t give me an answer. First, after making sure that I knew that he was not responsible for making the decision to purchase the 100% unverifiable electronic voting machines (“Decisions were made by the election commissions in each of those counties about what type of equipment to purchase”) he explained the testing procedure (“…the machines are tested prior to purchase, upon delivery and again before each election in each county…”) and suggested that I contact individual election administrators from each of the counties that use the 100% unverifiable electronic voting machines to witness testing procedures.

I felt nicely put off. But I did not feel as if my question has been answered. Perhaps I made it too confusing so I broke it down and sent him another email:

Dear Mr. Goins,

Thank you for getting back to me and for reiterating the need for election equipment that meets the highest standards for security and reliability. That said, the decision to purchase the electronic voting machines is in the past so I do not feel it necessary to address the county election commissioners at this time.

I do feel it necessary, however, to concentrate on the security and verifiability of the 2010 election.

And while I do believe your explanation of the bi-partisan pre-purchase testing procedure and the invitation to contact the election administrators to see demonstrations of each machine might address my request to see the process in which the votes are cast, it does not address my request to see the process in which the votes are cast and counted accurately.

In other words, I would like verification that the software used on these machines is both recording and counting accurately.

Do you have any suggestions on how this may be accomplished?

It seemed clear enough now, I thought. On election day, can Tre Hargett, Mark Goins, any poll worker, or poll monitor look into the internal bits of a touchscreen electronic voting machine and see how the votes are being counted? Can we, as voters, feel certain that what goes in the machine is going to be what comes out at the end of the day tally? Where’s the proof?

I couldn’t wait for his reply. But I had to wait. For two days.

Ms. Mancini:

Once again I want to thank you for your interest in the election process. I also want to apologize if my previous e-mail was unclear. The purpose of testing the voting machines prior to each election is to verify not only that ballots were cast, but also that they were properly tabulated and recorded. This testing process has been used in numerous elections prior to the start of my tenure with the Division of Elections and I’m unaware of any serious concerns expressed by the participating candidates or the parties they represented. However, if you have specific questions about the voting machine hardware or software, it might be advisable to contact officials with the companies that supply the equipment. I would be happy to supply some contact information for those companies, if you are interested.

Again, thank you for your inquiry.

Again with the “not my responsiblity.” Sheesh. So I tried one more time.

Dear Mr. Goins,

I am once again writing for clarification.

Are you suggesting that the testing done on the touch-screen machines prior to an election guarantees that every vote cast on election day on said machines will be counted and counted as cast?

If so, how can you be sure?

Do the companies that make the machines provide access to the counting software so that if can be verified and studied by your office? Can the companies that make the machines guarantee that the counting software is free of bugs, i.e. perfect and never makes mistakes during either the testing process or when they are live on election day? Can the companies that make the machines guarantee that the vote count cannot be manipulated in the source code or by introducing a virus in one of the unsecure data ports? Can the companies that make the machines guarantee that if one of the machines crashed or malfunctions, as computers are prone to do, that the votes on that machine will not be irretrievably lost? Can the companies also guarantee that each machine will be perfectly calibrated as to avoid vote flipping like the kind we saw last November?

Perhaps as the gentlemen in charge of building trust in our elections, you should contact the touch-screen electronic voting machine manufacturers for satisfactory answers to the above questions.

I also suggest that you read the following reports from the Brennan Center for Justice to better understand the serious concerns Tennesseans have about touch-screen electronic voting machines: http://www.brennancenter.org/content/section/category/voting_technology.

Or, you can simply look to the example of the Voter Confidence Act, which was passed almost unanimously in 2008 the State House and Senate by candidates who represent their political parties and recognized, as most of their constituents who want fair elections now do, the inherent unreliability and insecurity of touch-screen electronic voting machines.

Thank you again for your time.

The above email was sent on August 18. It’s September and I’ve yet to hear back from either State Election Coordinator Goins or Secretary of State Hargett.

Today I will resend my last email with the following addendum:

Dear Mr. Goins,

I am resending my email of August 18, 2009 in case it got lost in the flurry of emails you must receive on a daily basis. I look forward to your reply.

In addition, my offer for you to appear as a guest on Liberadio(!) with Mary Mancini & Freddie O’Connell to discuss the issue further, still stands.

More
Day 1: Operation P.O.P.
Day 2: Operation P.O.P.
Day 4: Operation P.O.P.
Another Proofer
Day 9: Operation P.O.P.
WPLN: Voting Machine Dispute Wears On as 2010 Election Nears
If You Hold an Election, Cheaters will Come
Computer Scientist Says Yes to Paper Ballots
Media (and some bloggers) missing the point of Tennessee election reform controversy

The computer scientists were able to evade this safety mechanism using return-oriented programming. Rather than designing the malicious code from scratch, the technique reassembles programming expressions already found in the targeted software in a way that gives the researchers the ability to take complete control over the machine. It’s tantamount to kidnappers who write a ransom note using letters cut from the headline of a newspaper.

The research team – from Princeton University, the University of California at San Diego and the University of Michigan – pulled off the attack by obtaining a Sequoia AVC Advantage legally off the internet. Without access to any of the source code, they reverse engineered the hardware. They were then able to reverse engineer the software it ran by analyzing the machine’s ROM.

Sequoia and manufacturers of other brands of e-voting machines frequently discount vulnerability research into their products by pointing out that the underlying source code is closely guarded. Researchers in many studies, they argue, have unrealistic access to the devices’ inner workings.

(And this kind of maliciousness is even easier when you’re hired and paid to do it.)

So, did you understand most of that? Me neither. Because we’re not computer scientists or programmers. You know who else isn’t a computer scientist or programmer? The Tennessee State Election Coordinator, Mark Goins, who believes that we should trust these types of machines to run our elections.