The Memphis Flyer gets it. When the judge “declined last week to issue the injunction sought by plaintiffs trying to force the hand of stonewalling state election authorities,” he potentially signed a death warrant for the Tennessee Voter Confidence Act – and secure and accurate elections for Tennesseans.

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?

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Tre Hargett is lucky it was Perkins and not Judy.

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.

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Governor Bredesen signing the Tennessee Voter Confidence Act into law.

Governor Bredesen signing the Tennessee Voter Confidence Act into law.

Why? Because the touch-screen electronic voting machines we use now are broken. And how can Tennesseans get the secure and accurate elections they deserve while voting on broken voting machines?

In a more in depth response to an Memphi Flyer editorial written last week by Rich Holden, the chief administrator for the Shelby County Election Commission, Gerard Stranch, one of the lawyers set to present the case today to compel Tennessee Secretary of State Tre Hargett to implement the law, and John Bonifaz, founder of the National Voting Rights Institute, further explain why the law must – and can- be implemented:

Flyer readers saw this last week in the guest Viewpoint of Shelby County election administrator Rich Holden….

Holden uses inflated figures — estimating Shelby County’s paper ballot costs at $400,000 per election. But Hamilton County has been using paper ballots for years at a cost of less than 25 cents a ballot and uses estimates of likely voter turnout to determine the number of ballots to print. Using those parameters, the highest-turnout race in Shelby County’s election cycle would cost less than $100,000 and most elections far less. The estimate provided is inflated by well over a factor of four.

Holden also argues that federal dollars will only pay for one machine per precinct, so Shelby County will have to pony up for extra machines. But in counties where optiscan is used, you don’t need more than one machine per precinct.

Critics further complain of costs for storage and handling of the paper ballots. But the reality is that where counties switched from touch-screen to optiscan they’ve saved money, because there are far fewer machines to store and maintain, the machines themselves are cheaper and easier to maintain, and the machines need to be replaced less frequently.

Most incredibly, Holden complains that optiscan will be a slower process because of the need for “ballot on demand” machines to print out ballots. In fact, though, optiscan dramatically reduces wait time for voters.

Right now, a touchscreen voter toggling through screen after screen of a lengthy Shelby County ballot can take as long as 15 minutes to vote, while long lines of waiting voters stream out the door. You can only let from one to three voters vote at a time, depending on how many expensive touch-screen machines you can afford at a given polling location.

With optiscan, 15 voters at 15 privacy carrels can pencil in their choices at their leisure, causing no delay. When they’re done, they feed their ballots into the optical reader in literally less than a second. No wait.

Ultimately, it shouldn’t matter what election officials think: The law says they have to implement optiscan by November 2010.

But election officials have gotten clever, arguing that the law’s text allows only machines federally certified to 2005 standards, and no such machines exist.

This would be an effective argument if that’s what the law really said, but it’s not. Nowhere in the TVCA’s text does it say “2005 standards.” It uses the phrase “applicable voluntary voting system guidelines,” a technical term that both the federal certifying agency and the federal statute which created it make clear can refer either to the 2005 standards or to 2002 standards, for which plenty of certified machines exist.

State election officials have gone out of their way to interpret the TVCA to make it impossible to implement. This flies in the face of the basic principle of statutory construction that a law should be interpreted to resolve internal contradictions and make it enforceable.

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With paper ballots you can have as much confidence in our elections as this man has in his ship.

With paper ballots you can have as much confidence in our elections as this man has in his ship.

Davidson County Chancellor Russell Perkins will conduct a temporary injunction hearing today, Thursday, Nov. 5, in the lawsuit filed by Common Cause of Tennessee to compel state officials to implement the Tennessee Voter Confidence Act.

The Tennessee Voter Confidence Act requires the statewide installation of a paper ballot voting system and audit trail for the 2010 elections. Common Cause is represented by the Nashville law firm of Branstetter, Stranch & Jennings; University of Memphis Law Professor Steven J. Mulroy; and Voter Action, a national legal advocacy organization working to protect the integrity of U.S. elections.

The hearing will take place at 1:30 pm in Division IV of the Davidson County Chancery Court, Courtroom 411, 4th Floor of the Metro Courthouse, 200 James Robertson Parkway in Nashville.

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An article about the broken voting machines we use in Tennessee - from almost 2 years ago.

An article about the broken voting machines we use in Tennessee - from almost 2 years ago.

Last week, the Memphis Flyer ran an editorial about the impact of the Tennessee Voter Confidence Act on touch-screen electronic voting machines by Rich Holden, the chief administrator for the Shelby County Election Commission.

Mr. Holden’s assertion that “the General Assembly should revise the act’s deadline provisions or, better, rethink it altogether” is being eviscerated in the comments section of the piece (“Holden’s initial premise – ‘if it ain’t broke’ – has been demonstrated to be way off the mark by all credible studies of DREs [electronic voting machines],…” etc..), with the only agreement coming from someone who can’t be bothered to give his real name.

There’s really nothing new in Holden’s editorial that we haven’t already heard from people who for whatever reason refuse to accept that the election machine system in Tennessee is already broken. What really stands out is what he didn’t say.

Nowhere in his editorial does he mention that the touch screen machines we use now simply do not work. They are broken and as such they cannot be trusted to record the votes of Tennesseans accurately. Recently we’ve seen an example how these machines malfunction (vote flipping) during the special election last month in Williamson County. And we’ve seen countless other instances of these machines malfunctioning since 2006.

The broken machines even made Newsweek (“Short-circuiting the vote”) and the NY Times (“Can you count on voting machines?”) and in October 2008, the Brennan Center for Justice, the non-partisan public research and law institute, sent a letter telling the Secretaries of State in 16 states that the machines didn’t work.

Nor does Mr. Holden address the importance of giving Tennesseans secure and accurate elections or how continuing to use these broken touch-screen electronic voting machines inherently diminishes that importance.

The people of Tennessee deserve secure and accurate elections, not broken machines, and any election administrator who refuses to replace these broken machines is failing in his trusted pursuit to give the people of Tennessee true access to the democratic process.

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Who did your ES&S touch screen electronic voting machine vote for?

Who did your ES&S touch screen electronic voting machine vote for?

Secretary of State Tre Hargett is the person in charge of elections in Tennessee. His job is to:

1) Guarantee that our election process is secure
2) Give us working systems that accurately record each vote
3) Ensure that the right candidate wins

In other words, Mr. Hargett is entrusted with the most fundamental tool of our democracy.

So, why does he want a machine to pick your candidate for you?

Earlier this month during a special election in Williamson County, Karen Carter attempted to vote for one candidate and the ES&S iVotronic touch screen electronic voting machine flipped the vote to his opponent.

Karen didn’t vote. The machine voted for Karen.

Tennessee uses the ES&S iVotronic touch-screen electronic voting machine in 17 counties.

So is this incident of a machine instead of a voter choosing an elected representative isolated to Williamson County?

No.

During the 2008 presidential election, a voter in Davidson County touched the screen for one candidate only to have the box next to another candidate light up. (Ironically, it was the wife of Uncounted filmmaker, David Earnhardt).

So are both of these incidences of a machine instead of a voter choosing elected representatives isolated to Tennessee?

No.

In 2008 there were also incidences of machines choosing our elected representatives on the same iVotronic touch screen electronic machines recorded in Jackson, Putnam, Berkeley, Ohio, Monongalia and Greenbrier counties in West Virginia.

And in Saline County, Kansas, the rise of the iVotronic touch screen electronic voting machines also occurred in three precincts. The local paper described the problem:

“When a voter pressed a certain candidate’s bar on the voting machine’s screen, the candidate above the selected candidate instead received the checkmark.”

Machines choosing our elected officials is a well-documented problem (also in Texas!) that affects 22,619 ES&S iVotronic voting machines.

In October 2008, the Brennan Center warned the Secretaries of State in 16 states of this problem.

Tennessee was one of those states.

Even though the ES&S machines have well-documented problems and there is a Tennessee law in place that, if implemented, would disenfranchised machines and enfranchise, you know, the citizens of the state, Mr. Hargett refuses to give Tennesseans back their precious right to vote by throwing these machines on the trash heap where they belong.

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Click to embiggen.

Click to embiggen.

According to the National Association of Secretaries of State, jurisdictions in 49 states use the kinds of voting technology that Tre Hargett says we cannot use.

Optical Scan System: Optical scan machines scan and tabulate the selections made on a paper ballot. Voters make their selection using a pen to fill in an oval or connect two lines. Jurisdictions in 49 states and the District of Columbia use optical scan technology in some capacity. Seven of these states use optical scan only to process absentee or mail ballots.

If 49 states (including Pickett and Hamilton counties in Tennessee, by the way) use optical scan machines to count paper ballots without incident, then why can’t we?

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A rep from Common Cause, one of the plaintiffs in the lawsuit filed to compel Tennessee Secretary of State Tre Hargett to follow the law and implement the Tennessee Voter Confidence Act, responds to a letter written to the editor of The Leaf Chronicle and in doing so refutes every one of Mr. Hargett’s excuses for not following the law.

Paper ensures ballot integrity (By Dick Williams)

In response to the Oct. 4 editorial, “Ensure ballot integrity,” I would like to briefly explain why Common Cause Tennessee and others concerned about ballot integrity believe the Tennessee Voter Confidence Act must, and can be, implemented for the 2010 election.

As the opinion piece states, 93 of the 95 counties use paperless voting systems.

The TVCA, after years of testimony and study by the Tennessee Advisory Commission on Intergovernmental Affairs, was adopted nearly unanimously by the legislature and enthusiastically signed by Gov. Phil Bredesen.

The strongest argument for adoption was that paperless systems are subject to unintended errors and possible hacking and that votes might not be recorded as intended by the voter.

Without a paper ballot that the voter fills out and available for an audit or contested election, there is no way to tell if the voter’s intent is recorded.

Contrary to the piece referenced above, the machines purchased in 2006 do not have an adequate audit capability, except to verify that the number of ballots cast is the same as the number of voters. The perfect world referenced in the piece does not exist, but voting machines meeting the TVCA requirements do exist and are vastly more reliable than those in use in 93 counties today.

There is no specific language in the TVCA referring to 2005 standards, and such standards were not discussed in committee or on the floor of either house. The act did state that the paper ballot voting systems shall be certified to the “applicable voluntary voting systems guidelines” of the federal government. Significant discussion was held about the fact that over 30 states and Tennessee counties Hamilton and Pickett had systems like those mandated by the act.

In June of this year, as the Legislature was considering delay of the Act to 2012, the General Assembly’s Office of Legal Services issued a memorandum with the opinion that the language in the Act “refers to the 2005 Voluntary Voting Systems Guidelines.” That opinion was apparently based only on a search of the Election Assistance Commission Web site.

However, the Help America Vote Act which created the EAC in 2002 specifically states that the federal guidelines in effect at that time are the “first set of voluntary voting system guidelines adopted under this part.” — HAVA Section 222(e).

Clearly, the Legislature in 2008 and certainly the supporters of the TVCA did not mean the “applicable” standards, after the examples of machines currently in use, to refer to guidelines to which no machines could comply before 2010.

The purpose of the complaint filed by Common Cause Tennessee and others is to clarify the language of the Act, so that the secretary of state and election officials can implement the act, which they have said they want to do. We are asking that the court be given the “elbow room” to make the determination, but to make it in time for the 2010 elections.

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Tre Hargett Interview

My Grandma Angie always used to say, “Extend the invitation. If they come, they come.” Not sure why anyone would turn down an invite from my Grandma whose meatballs were like buttah, but I guess I can understand why Secretary of State Tre Hargett might turn down our invite for an interview. I haven’t written or said very nice things about Mr. Hargett’s reasons for advocating for the repeal delay of the Tennessee Voter Confidence Act or about his intention to suppress the vote. But when I called his office on Tuesday to follow up on our email request for the interview, his communications director asked if perhaps it would have been better if I had asked an interview prior to writing negatively about Mr. Hargett’s position on secure and verifiable elections on the blog or talking about it on the radio show.

Maybe. But there is precedent for this kind of thing. You know, not agreeing with someone on policy, talking about it on the air, inviting the person with whom you disagree to come on the air for an interview, and that person accepting the invitation.

Former Tennessee Democratic Party chairman Gray Sasser used to appear on Steve Gill’s show all the time. More recently, Congressman Jim Cooper went on The Ralph Bristol Show on conservative talk station 99.7 WWTN even though Mr. Bristol certainly doesn’t agree with any Democrats on health care reform. And last night we learned that faux-public interest lobbyist Rick Berman has accepted an invitation to appear on The Rachel Maddow Show next week even though she’s been exposing his deceptive practices and suspect corporate ties for weeks now.

So, the invitation stands for Mr. Hargett: come on Liberadio(!) to talk about secure and verifiable elections.

If he accepts, I’ll even make him some of my Grandma’s meatballs.

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Summary: Featuring guests Ben Tribbett, Executive Director of Accountability Now! PAC, Dr. Reginald Coopwood, CEO of the Nashville Hospital Authority, and Karl Frisch of Media Matters for America.

Part 1 Mary prepares to unleash (ha!) the congressman Barney Frank on Halloween households all across America and if you think that’s scary, what until you hear what Republican State Senator Ron Ramsey wants to do to fair elections in Tennessee. Plus, Mary and Freddie try to understand just what, exactly, Ben Trippett and Accountability Now PAC have uncovered about Coop. [22.62MB download mp3]

Audio clip: Adobe Flash Player (version 9 or above) is required to play this audio clip. Download the latest version here. You also need to have JavaScript enabled in your browser.

Part 2 Reginald Coopwood, M.D., CEO of the Nashville Hospital Authority tells us about their health facilities, the best-kept secret in Nashville, and Karl Frisch does his best Elbert Ventura impression in the next generation of the Media Matters for America Smackdown. Plus, President Obama’s foreign policy has all but isolated Iran from the world community. So why is the right-wing still calling him a surrender monkey? [22.62MB download mp3]

Audio clip: Adobe Flash Player (version 9 or above) is required to play this audio clip. Download the latest version here. You also need to have JavaScript enabled in your browser.

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