It may not be the final chapter in the “glitch” election of August 2010, but four members of the Shelby County Election Commission — two Democrats and two Republicans — formally underwrote and presented to the media on Wednesday their conclusion as to the cause of that glitch: human error, not political conspiracy or machine malfunction.
The report seemed to clear the way for formal certification of the August 5 election results on Thursday.
Present at the press conference at the commission’s Operations Center at Shelby Farms were Democratic commissioners Myra Stiles and James Johnson and Republicans Robert Meyers and chairman Bill Giannini. Absent was Republican commissioner Brian Stephens.
The causative mistake, documented in a report prepared jointly by Meyers and Johnson, was a freely acknowledged one by the commission’s I T director, Dennis Boyce, a civil servant, who told commission director Rich Holden on the morning of election day, Thursday, August 5, that “he had made an error in selecting one of the data files” that were loaded into the Electronic Poll Book (EPM) used for voting that day.
Boyce had been asked to investigate the circumstances of complaints the commission had received from voters in several precincts that they were wrongly recorded as having participated during July’s early-voting period.
What happened, says the report, was that, in the crush of having only a weekend after the conclusion of early voting on July 31 to ready the EPM for election day, Boyce failed to alter the code for early-voting data that had been used prior to final voting in the May 4 countywide primary and inadvertently “left the election data file identification number for the May election, 921, in the script.”
The error “potentially affected” 5,390 voters who had early-voted before the May election but not before the August election. Of those, the report says that 1.952 were allowed to cast regular ballots via the Diebold voting machines after signing “fail-safe” affidavits asserting their right to do so. Another 210 cast “provisional ballots,” of which 136 were later deemed valid.
Doing the math would indicate that the outcome of no election race could have been affected even if all the remaining voters, some 3000-odd, had been prevented from voting but would have voted unanimously for a losing candidate. But in fact, the commissioners agreed, the likelihood was that a substantial number of those unaccounted-for voters had not presented themselves at a polling place on election day.
Chairman Giannini accepted responsibility for the error and for the fact that no system of “checks and balances” was in place to prevent or detect an error of the sort committed by Boyce, who was identified in the report as “an employee with an exemplary record.” Giannini estimated that Boyce’s service at the Election Commission dated back at least nine years — which meant that he was hired during a period of Democratic control of the commission.
But, said Giannini, he did not know what Boyce’s personal politics were, nor was it “any concern’ of his or the commission.
As for preventing such an error from being repeated in the future, the report contained four recommendations.: mandating that a second employee verify that the correct sets of data are loaded into the election-day EPBs, exploring the possibility of “automating this process;” evolving the commission’s existing “Logic and Accuracy” (L&A) testing “to encompass testing for this issue;” further training election officials “on the use of failsafe voting and the use of provisional ballots;” and further educating the voting public on the use of such alternative voting means.
Giannini ruled out the possibility that innate defects in the Diebold machines used for the election might have been a factor, saying that the glitch that happened preceded the use of the machines on election day and could have affected any vote-counting system, even the opti-scan system touted by advocates of voting-machine reform and currently scheduled to be employed in Tennessee in the 2012 election cycle.
(An irony of the post-election crisis is that the issue of proprietary software — often cited by Election Commission spokespersons to explain their reluctance to part with certain requested data — relates not to the Diebold Corporation, original suppliers of the voting machinery and software used by Shelby County, but to ESS, which in 2006, when the machines and software were purchased, was a rival company engaged in intense competition with Diebold for the county’s business. As it happens, ESS has since acquired from Diebold the ownership of record for the kinds of technology in use in Shelby County — a fact complicating the proprietary issue.)
Representatives of the state Election Coordinator's office will be at the Operations Center on Friday to conduct a separate audit.
Another of several indications that the post-election controversy is far from over, regardless of Wednesday’s report or Thursday’s pending certification, was a press conference called Wednesday by the local chapter of the National Action Network, an organization presided over nationally by noted activist Al Sharpton.
At the press conference, held on the steps outside the Election Commission’s downtown offices, Greg Grant, president of the Memphis chapter, announced that Sharpton had been invited to Memphis to intervene in the case “in support of the Federal Voting Rights Act of 1965.”
The invitation was not coordinated with the plaintiffs in the case, said Grant, who indicated he expected to receive a reply from Sharpton “within 24 hours.”
Included in materials passed out by Grant was a lengthy list of "records we have been unable to obtain," including several items relating specifically to the functioning of the Diebold machinery and software.
Still to be accounted for in any official explanation is the functioning of a "manual override" capability in the Diebold software -- one which Giannini has conceded was employed for adjustment purposes during the August 4 election process, but not, he insists, to alter voting results.
And a statement from a spokesperson for District Attorney Bill Gibbons served as a reminder that further inquiries into possible election irregularities remain to be completed:
Regarding the announcement Wednesday by the Shelby County Election Commission, the District Attorney wanted to clarify that the TBI criminal investigation into the problems at the polls on election day has not concluded and is ongoing. The DA has not made a determination on whether there was criminal intent in this case. That determination will be made after the TBI has finished the investigation.