Even as candidates and advocates and party organizations start ratcheting up for the races and issues to be disposed of on the forthcoming November ballot, the August 5th election refuses to go away.
Last week the Shelby County Election Commission formally certified the August 5th election and issued a report chalking up a now infamous election-day glitch to “human error” without effect on any final outcome. But this week the number of litigants seeking to overturn that election has swelled from two to ten, as the entire slate of Democratic candidates defeated in races for countywide positions has joined in a revamped lawsuit which contends that the election results are “incurably uncertain.”
The suit, filed in Chancery Court Tuesday, will probably be combined with an earlier one which sought injunctive relief on behalf of two litigants, Regina Morrison Newman, the incumbent Trustee who had sought reelection, and Minerva Johnican, candidate for Criminal Court clerk. Or so said Newman, who is functioning as a lawyer for herself and other litigants, at a Wednesday morning press conference outside the Shelby County courthouse. ( Not present was the litigants’ other attorney, Van Turner, who is chairman of the Shelby County Democratic Party.)
A handout issued at the press conference to media representatives itemized 12 different lapses or suspicious circumstances in the election. One of them involved the well-publicized fact, acknowledged in the Election Commission’s report, that early-voting data from the May countywide primary election was incorrectly entered into the electronic poll books (EPBs) used for August 5th voting — an error potentially affecting 5390 voters, many of whom were in fact originally told they had already voted and could not do so again on August 5.
Newman, who was flanked at the press conference by such other litigants as Sheriff’s candidate Randy Wade, Johnican, and Juvenile Court clerk candidate Shep Wilbun, suggested that the number of voters affected by the data-base error could have been even larger, citing accounts of voters who said they were held back from voting who had not early-voted in May.
In that regard, the handout made reference to alleged obstacles experienced by Bev Harris and Susan Pynchon, consultants from the advocacy group BlackBoxVoting: “Candidate inspection teams have thus far been denied sufficient data or documentation to even verify that …SCEC used the May 2010 early voter database rather than a larger early voter database which would have affected more voters, as some voter statements would indicate.”
Numerous other problems were listed as having been uncovered by the litigants and their consultants in a post-election investigation. Allegedly, for example, there was a discrepancy between the “Participating Voters List” of 176,119 voters and the SCEC’s “Certified Statement of Votes Cast,” showing 182,921 votes — a difference of “6,802 more votes…cast than individuals who participated.”
Also referred to in the handout were problems in the handling of provisional ballots for those voters who were turned away and who asked for such ballots; improperly discarded poll tapes; inconsistencies in poll-by-poll turnout reports; improperly sealed or unsecured “voting machines, tabulators, memory cards, and other voting apparatuses;” and even a “ghost race,” i.e., a voting-machine category hidden to voters but capable of being “used to transfer, delete, or temporarily store votes.”
And there was the issue of a “manual override” function in the Diebold Corporation machines, one which Election Commission officials acknowledge was used during the election period and which the litigants allege can be used to change vote totals — something which has been explicitly denied by Election Commission chairman Bill Giannini.
Wilbun, who, until earlier this year, when he began his candidacy, was a Democratic member of the Election Commission, said the very existence of such a function had not previously been disclosed.
Newman, who had once been quoted as saying her aim in pursuing the post-election challenge was not meant as a dispute of the results per se, said on Wednesday that her perspective and that of the other litigants had been changed by the volume of irregularities discovered and by legal requirements for moving forward with the amended lawsuit.
An extended section of the handout speaks further to the purposes of the litigants:
“This lawsuit is intended to assure that the…substantial and appalling improprieties which occurred in the August election are brought to light, investigated and resolved for all citizens and for every future election. The handling and mishandling of the august election by the SCEC is an embarrassment to our county and a violation of every principle on which our country was founded.
“Regardless of race, party or gender, every citizen is entitled to better and is entitled to an unimpeded and transparent voting process. Our upcoming November election, including the vote on consolidation of Memphis and Shelby County, is important to many, and we intend to do everything in our power, with the approval of the courts, to assure that every citizen’s vote counts. None of us should tolerate incompetence or impropriety.”