Ruling on Voting Machine Law Leaves Wiggle Room on Both Sides

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Chancellor Perkins
  • Chancellor Perkins
Tennessee Secretary of State Tre Hargett and state Coordinator of Elections Mark Goins may have dodged the bullet, but it would appear from a ruling Thursday by Chancellor Russell T. Perkins in Nashville that a pistol is still pointed at them on the matter of enforcing the 2008 Tennessee Voter Confidence Act (TVCA).

Chancellor Perkins denied the immediate injunctive relief sought by Common Cause of Tennessee and associated counsel, including University of Memphis law professor and county commissioner Steve Mulroy, but explicitly invalidated the persistent claim by defendants Hargett and Goins that no acceptable voting machines are available to carry out the act’s mandates.

What the Act, passed by the Tennessee legislature with virtual bi-partisan unanimity in 2008, calls for is that all 95 Tennessee counties be outfitted with optical-scan voting machines in time for the 2010 election cycle. The machines would electronically process paper ballots.
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Hargett and Goins have raised several objections — the most noteworthy being that the Act requires machines meeting 2005 standards of the Federal Election Assistance Commission, a monitoring body established under the federal Help America Vote Act (HAVA). In his ruling after Thursday’s ruling on a motion by Common Cause to require immediate action by Hargett and Goins, Chancellor Perkins summarized the key points this way:

“The TVCA does not require the voting system to be implemented by the State of Tennessee to meet 2005 standards. The Court determines that the State is obligated to take prompt, effective steps to meet the statutory deadline using compliant voting systems.

“Without making a direct ruling at this early stage about what HAVA requires, the Court determines that the State has discretion in determining whether to utilize the 2002 or 2005 standards, as long as this choice of standards does not jeopardize meeting the legislative mandate to implement a voting system that uses compliant precinct-based optical scanners on or before the November 2010 general election….”

Chancellor Perkins declined at this point, however, to find that the defendants in the suit had “wrongfully” intended to obstruct implementation of the act, and the sentence granting them “discretion” on the matter of standards weighs in the defendants’ favor, just as his warning that they may not “jeopardize” implementation of the Act weighs in favor of the plaintiffs.

The bottom line is that both sides appear to have enough wiggle room to continue a protracted struggle that has taken on discernibly partisan outlines.

In his statement on the ruling, Secretary of State Hargett invoked another major argument against immediate implementation of TVCA — that of exorbitant expense, concluding: “…Responsible legislators argue with these hard economic times upon us, it is not the time for additional taxes or government spending. As I stated earlier, we are preparing to go back to paper ballots as directed under current law by the November 2010 election. We understand this debate will continue in the next legislative session."

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 andf 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.

The unspoken premise of the showdown — which, in political terms, matches key Republicans like Hargett and Goins against Democratic spokespersons — is that next year’s elections will determine the shape of federal and state reapportionment in the elections of the next decade. Demcorats have been outspoken that only a “paper trail” can prevent electronic hacking or other potential distortions of election results.

Various proponents of the Act have rebutted claims, asserted by Hargett, Goins, and others, that the Act would impose prohibitive expenses on the 95 Tennessee counties, maintaining that $35 million in federal HAVA funds already dispensed to the state are more than enough to offset the costs of implementation.

Mulroy issued a lengthy statement interpreting Chancellor Edwards’s ruling as a qualified victory for the plaintiffs and said, “If the Defendants do not promptly implement, the Plaintiffs will have an additional opportunity to seek relief from the court.”

State Rep. Gary Odom of Nashville, Democratic leader in the state House, said in a statement, “…The court has ruled that it is time for the secretary of state’s office to stop dragging its feet and to provide for paper balloting for all of our voting machines in Tennessee elections by 2010.”

And state Senator Roy Herron (D-Dresden), a candidate for governor, said, “…I call on Secretary Hargett to implement the Voter Confidence Act and begin purchasing new voting machines with paper ballots without delay. The time to protect our vote is now….”

A statement by Tennessee Democratic Party chairman Chip Forrester included this assertion: "...Mr. Hargett cannot use the bogus claim anymore that the machines do not exist. Now maybe he will follow the law and do the job he was sworn to do."

But all indications were that, pending another court test or ruling in the next two months, the battle may well continue into the General Assembly in January before anything definitive is done.

Another statement by Hargett suggests as much by indicating that the shape of a "request for proposal" (an invitation by the state for competitive bidding to supply the machines) cannot be determined until December or January and that "[a]t that time, we will issue a RFP to purchase machines certified to the strongest standards."

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