Senator Ketron On a Hot Tin Roof

Sen. Bill Ketron (R-Murfreesboro) spoke on the floor of the Senate floor on Tuesday in support of SB0872 (HB0614), the bill he sponsored to delay the Tennessee Voter Confidence Act. Based on a press release sent out today by the very Election Assistance Commission (EAC) he spoke of, he was fed some very incorrect information.



1) “Currently, no optical scan machine has been certified to the 2005 Voluntary Voting Systems Guidelines.”

According to a press release sent out today by the EAC, there are now three optical-scan voting systems that are certified to 2005 standards.

2) “Which the bill we passed in ‘02 [It was actually passed in '08 - ed.] requires.”

A Davidson County Chancellor ruled without exception that the TVCA does NOT require voting machines federally certified to 2005 standards. Machines certified to 2002 not only meet the requirements of the TVCA but are available in abundance. Also available in abundance, federal dollars that can be used by the state ONLY to pay for for these machines and other election-related materials.

3) “Unfortunately, they [EAC] inform us, only one machine may be certified in time for this election cycle coming up in November 2010.”

Hello, today’s press release from the EAC.

The U.S. Election Assistance Commission (EAC) today certified the OpenElect 1.0 voting system by Unisyn Voting Solutions, an optical-scan device with central count and precinct-level count equipment, to the 2005 Voluntary Voting System Guidelines. It is the fourth voting system to achieve federal certification under the EAC Voting System Testing and Certification Program.

EAC certified its first voting system, a direct recording electronic (DRE) device called the MicroVote EMS 4.0, early last year. Last summer it certified the ES&S Unity 3.2.0.0 optical-scan system and the Premier Assure 1.2 with optical-scan and DRE technology.

If I were one of the 60 county election administrators that were in the Senate chamber yesterday to support Senator Ketron’s delay bill, I would feel cheated. Ditto for the other Senators who voted for his bill, many of whom told their constituents that they would vote for the delay bill precisely because there were no certified machines available.

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Roll Call Senate TVCAConsidering what we heard Senator Bill Ketron (R-Murfreesboro) say on the floor of the Senate yesterday and what was written in the many examples of emails that I received that were written by Senators to their constituents – that there are NO machines available for purchase to the 2005 Voluntary Voting System Guidelines* and that’s why we have to delay implementation of the Tennessee Voter Confidence Act – this is very interesting and enlightening news coming straight outta the Election Assistance Commission today:

The U.S. Election Assistance Commission (EAC) today certified the OpenElect 1.0 voting system by Unisyn Voting Solutions, an optical-scan device with central count and precinct-level count equipment, to the 2005 Voluntary Voting System Guidelines. It is the fourth voting system to achieve federal certification under the EAC Voting System Testing and Certification Program.

An EAC certification means that a voting system has met the requirements of the federal guidelines by passing a series of comprehensive tests conducted by a federally-accredited test laboratory. Manufacturers of certified systems must also meet technical and ethical standards that ensure the integrity of the process and the system as it goes from the test lab to production and into the marketplace.

EAC certified its first voting system, a direct recording electronic (DRE) device called the MicroVote EMS 4.0, early last year. Last summer it certified the ES&S Unity 3.2.0.0 optical-scan system and the Premier Assure 1.2 with optical-scan and DRE technology.

So the question now becomes, who was releasing misinformation to our State Representatives and today’s latest certification the reason why the delay bill was rammed through so quickly?

*Not that the machines we purchased had to be certified to the 2005 standards. A Davidson County Chancellor ruled without exception that, contrary to what Secretary of State Tre Hargett had been saying for well over a year, the TVCA does NOT require voting machines federally certified to 2005 standards. Machines certified to 2002 not only meet the requirements of the TVCA but are available in abundance. Also available in abundance, federal dollars that can be used by the state ONLY to pay for for these machines and other election-related materials. Just sayin’.

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From Colby Sledge, brand spanking-new communications director for the Senate Democratic Caucus:

Tennessee Senate Democrats fought Republican legislation Tuesday that will delay secure elections and burden local governments.

Senate Republicans voted lockstep to pass legislation delaying the implementation of the Tennessee Voter Confidence Act until the 2012 elections. Under prior law, more secure voting machines and ballot procedures were to be used in the 2010 elections.

Tennessee currently uses the most insecure voting machines available, as determined by a New York University study.

“Citizens should know that when they go to vote, their vote is going to count,” said Sen. Roy Herron, D-Dresden. “There have been too many cases of fraud and computer problems with our current system.

“Today, we took a huge step backward.”

Herron introduced an amendment to the bill that would have helped counties purchase secure voting machines. The costs would have been covered by federal funds already set aside for improving ballot security and voter confidence under the Help America Vote Act, signed into law by President George W. Bush in 2002.

The amendment to help local taxpayers and voters was tabled 18-12 by Senate Republicans on a party-line vote.

“We tried to protect the taxpayer by taking the burden off counties, but Republicans voted it down,” said Sen. Eric Stewart, D-Belvidere.

The requirements will now go into effect for the 2012 elections, when, as the law is currently written, county governments will have to foot any costs not covered by the designated federal funds.

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Fair ElectionsAnd it’s only the first day!

Jeff Woods covers the start of the new legislative session in his usual no-nonsense style:

Tennessee Senate Republicans kicked off the new session in a partisan way today, ramming through legislation to postpone an obvious good-government election reform that once enjoyed broad support from both political parties.

Republicans beat back a slew of Democratic amendments, and the Senate voted 22-10 to delay implementation of the Tennessee Voter Confidence Act until the 2012 elections…

The amount of misinformation being touted as fact on the floor of the Senate by proponents of the delay bill was mind boggling, like Senators had fingers in their ears going “la-la-la-i’m-not-listening” for the last 6 months.

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Gary CooperToday at noon the State Senate will vote on HB0614, the bill to delay implementation of the TN Voter Confidence Act (TVCA) until 2012. You can watch the proceedings online at the Capitol website.

Here’s what’s wrong with the arguments you will hear for the delay:

1) There are no machines (or, alternatively, only one machine) that can be purchased that will meet the standards set forth by the TVCA.

A Davidson County Chancellor ruled without exception that, contrary to what Secretary of State Tre Hargett had been saying for well over a year, the TVCA does NOT require voting machines federally certified to 2005 standards. Machines certified to 2002 not only meet the requirements of the TVCA but are available in abundance. Also available in abundance, federal dollars that can be used by the state ONLY to pay for for these machines and other election-related materials.

The court’s ruling, which also said that the TVCA could and should have been implemented all along, came in October and yet, here we are today with no real progress and plenty of excuses.

Word on the street is that legislators are being told that there is only one machine out there that can meet the TVCA standards. Not true. And upgrading machines from 2002 standard to 2005 can be done quickly and easily with nothing more than a simple software “patch.”

2) Implementing the TVCA will an expense too costly for counties to bear.

Cost arguments – printing and storing ballots is expensive – are based on inflated cost estimates from the counties. Look no further than Hamilton and Pickett counties who have been using paper ballots and an optical scan counting system for years at a very manageable cost.

Last year, a spreadsheet detailing the “high” estimated costs for conducting a paper ballot election in Sumner County made the rounds. But another spreadsheet from the Secretary of State’s office shows enormous differences (pdf) in estimates for things like printing costs and ballot storage from other Tennessee counties.

For instance, the storage of ballots in Sumner County would cost $7,152.00. But Houston County estimates it would cost $50.00 and Cocke County estimates $203.00. Campbell County estimates that it would cost $70,000.

As of today, there has been no explanation for the disparity in the numbers. And while they contend that it would be more expensive to change to a system of paper ballots, studies in North Carolina, Maryland and Florida have shown that voting with paper ballots (counted by optical scan machines) is 30-40% less expensive than voting on paperless electronic voting machines like the ones we use now in Tennessee.

Two years AFTER the TVCA was passed almost unanimously in both the House and Senate, there are still no sufficient reasons to delay implementation in time for the November 2010 election.

Please, Tennessee Senators, vote against HB0614 and any delay of the TVCA today. Our fair and accurate elections depend on it.

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From the Memphis Flyer staff:

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.

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All Tennesseans believe we deserve fair and accurate elections. This belief unites us as Tennesseans like no other. Heck, I’d even go as far as to say it united us as Americans.

So when I read yesterday that Secretary of State Tre Hargett was going to move forward with purchasing the optical scan machines needed to count the paper ballots that the Tennessee Voter Confidence Act (TVCA) of 2008 mandates we use in November 2010, I was overcome with comfort and joy.

You see, those of use who have been urging implementation of the TVCA were elated when last month the protracted battle over implementation of the TVCA was put to rest and the Act, which was overwhelmingly supported by the people of Tennessee through their legislature, was now also fully validated by the courts.

It seemed, we believed, that Tennesseans were finally going to get the fair and accurate elections we deserve.

But then I read Jackson Baker’s Memphis Flyer article a little more closely and I realized, uh-oh, what we’re actually going to get is some post-holiday coal in our little red bootie stockings thingies.

FAIR AND ACCURATE. “I think we’ve got a 2005-quality machine,” Secretary of State Hargett said in a meeting in Memphis earlier this week, inferring that an optical scan machine made in any other year would be inadequate.

I’d like to clear up a few inaccuracies that Mr. Hargett’s chock-full one sentence statement infers.

First, the TVCA was passed to give us paper ballots, not voting machines. The paper ballots would not only record the voter’s intent but would also become the ballot of record in the case of a close election. In other words, the strength of the bill is in the paper ballot and not the machine that count the ballots. I mean, be good for goodness sake!, we could hand count the paper ballots in case of emergency and skip the machine counting process completely. Paper ballots are to optical scan machines as portable hard drives are to your computer.

To put it more simply, paper ballots give Tennesseans control over the results of our elections by giving us the ability to oversee, recount, and audit. In other words, trust but verify.

Mr. Baker followed up Mr. Hargett’s statement with an editorial comment, rife with inaccuracies: “‘I think we’ve got a 2005-quality machine,’ Hargett said in Memphis Tuesday night. Meaning that an optical-scan voting apparatus with paper-trail capability would soon be available in enough quantity to conduct statewide elections in 2010.”

The paper ballot – and the voters intent – gets counted by the optical scan machine. Or counted by hand if necessary. The optical scan machine does not produce a paper trail nor does it give the voter a receipt.

Again, the TVCA puts the emphasis on the paper ballot – not on the machines that count them – because Tennesseans prefer paper ballots that produce something tangible that they can oversee, recount, and audit. This is a much better system than the paperless electronic touch-screen voting machines we currently use that count votes using software that no one is allowed to see or monitor.

BI-PARTISAN. Accurate elections are the responsibility of the people of Tennessee, and the people of Tennessee want paper ballots. That’s why the TVCA was passed almost unanimously (when the hell does that ever happen?) in the General Assembly in 2008 – that means that 56 out of a possible 60 Republicans and 68 out of a possible 68 Democrats voted for the TVCA.

It truly was a bi-partisan effort.

The bill to delay the TVCA that Mr. Hargett mentions in the article is a divisive issue to be sure, and will most likely be brought to the Senate floor for a vote by Lt. Governor Ron Ramsey by January of 2010. This bill not only delays until 2012 the date the Act must be implemented, but also guts the mandatory audit procedures.

The audit procedures that would alert us to any problem with the vote count.

Again, Tennesseans want and deserve fair and accurate elections, but how can we make sure our elections are fair and accurate unless we are able to randomly audit the results?

FISCALLY RESPONSIBLE “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,” Mr. Hargett said, admitting that the state has approximately $34 million federal dollars available that can only be used by the state to purchase election equipment.”

In these uncertain economic times, all Tennesseans are focused on fiscal responsibility. But if our concern is saving money, the best thing we can do is implement the Tennessee Voter Confidence Act.

For example, with the TVCA only one Optical Scan machines is needed per precinct instead of the multiple machines needed with the paperless electronic touch screen voting system we use now.

And because we eliminate up to 80% of existing equipment when we move to paper ballots counted by optical scan machines, counties will save the money they now spend to program, service, test, store and transport so many unnecessary paperless electronic touch-screen machines.

In fact, studies in Florida, Maryland, and North Carolina have confirmed that voting with paper ballots counted by optical scan machines is 30-40% cheaper than voting the way we do now because of the reduction in programming, software, maintenance, storage and transportation costs.

We’re all hyper-aware that local budgets are strained and that necessary services run the risk of being cut. But fair and accurate elections are the most necessary of all our public structures. They are what gives life to all the others.

Look at it this way, your vote is your voice. And if your vote doesn’t get counted for the candidate who will vote with you on the issue or issues most important to you, then your participation in our democracy is an illusion.

All Tennesseans believe we deserve fair and accurate elections. The Tennessee Voter Confidence, aptly named, gives them to us.

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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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