On Monday, October 4th, a trial is set to begin in the courtroom of Chancellor Arnold Goldin. Attorneys for eight Democratic candidates for countywide office and two judicial candidates, all losers in the Shelby County general election held on August 5th, will attempt to convince Goldin that the election results should be overturned as "incurably uncertain."
Local election outcomes have been challenged before but never by an entire slate of party candidates (among the losing Democrats, only former interim county mayor Joe Ford opted out of the litigation) and never with so many observers from outside the county looking on.
The Shelby County lawsuit has attracted attention not only in Tennessee, where several other counties — Sevier, Rutherford, and Hawkins among them — experienced problems with their elections, but in the nation at large. Almost from the beginning, the litigants became a cause célèbre among various advocacy groups, one of which, Black Box Voting, quickly furnished two consultants to investigate the election and assist in making the legal case.
On the face of things, the county election of August 5th was, paradoxically, both stunning, in that the county's Democrats were presumed to have a decided numerical edge in registered voters, and — given the turnout figures — unsurprising.
From the beginning of early voting on July 16th through Election Day itself, it was established over and over that whites in general and Republicans in particular seemed to be voting in disproportionate numbers. Correspondingly, blacks in general and Democrats in particular seemed to be turning out in relatively lackluster numbers.
The disproportionate turnout figures were reported on and acknowledged universally by the news media. Typical was an e-mail tease by Mike Matthews of WREG-TV for his forthcoming evening newscast on Friday, July 30th, as early voting was coming to an end. Heading it "Republicans Hit Shelby County Early Voting Hard," Matthews noted: "Shelby County Democratic Party officials say they are concerned about the number of Republicans heading to the polls in early voting. 'It's something that we're going to have to study,' says Party Chairman Van Turner."
Trying to excite concern among his party-mates in that last week of voting, veteran Democratic operative David Upton noted publicly: "It looks like early voting in Shelby County right now is 54 percent Democratic and 46 percent Republican." Calculating that at least 2 percent of the Democratic primary vote was Republican crossover, Upton performed a de facto revision of the county's turnout down to 52 percent Democrats and 48 percent Republican, and declared that ratio "too close for comfort."
He went on: "If it stays that way, everybody on the ballot" — meaning, every Democrat on the Shelby County ballot — "is in danger of losing."
Several reasons were adduced by observers for the turnout situation:
1) That the Democratic primary battle between incumbent 9th District congressman Steve Cohen and his challenger, former Memphis mayor Willie Herenton, never really got going. Thus, there was no "down-ballot" benefit to be derived by Democratic candidates in other races.
There was, however, the crossover factor Upton had referenced — a measurable participation by anti-Herenton Republicans in the Democratic primary. This was made possible by GOP voters' awareness that they could vote in that race and simultaneously cast votes for Republican nominees in the county general election — technically a separate ballot from the state and federal primaries.
2) That the hotly contested Republican primary for governor — between well-funded candidates Bill Haslam, Zach Wamp, and Ron Ramsey — drew out unusually large numbers of GOP-minded voters, who, like those Democrats and Republicans taking part in the Cohen-Herenton race, could go on to vote for candidates of either party in the county general election.
3) That 2010 was, at that point, shaping up everywhere as what it still seems to be — a good year at the polls for Republicans.
4) That the slate of Democratic candidates for county positions was uninspiring — a condition arising from the fact that they had been selected in an ill-attended May primary in which candidates with intra-party name recognition, whatever their biographical baggage, had an advantage over unknown candidates, whatever their credentials or personal qualities.
Two days before the election, Shelby County Republican chairman Lang Wiseman, concerned about the prospect of overconfidence in GOP ranks, took note of the latter circumstances in an e-mail to party cadres:
"I suspect you're like me — sick and tired of reading ... [s]tory after story about Republican voter turnout designed to scare Democrats and get them to the polls.
"At the same time, I'm sick and tired of what I don't see. ... I mean, here we are coming down the home stretch, and it's worth asking: Where are the stories reminding the voters about the tax liens, court judgments, and personal financial problems of some of the Democrat candidates?"
Wiseman need not have worried. All Republican nominees for countywide office triumphed over their Democratic opponents — by margins ranging from 4,548 (David Lenoir over Regina Morrison Newman for trustee) to 17,462 (Jimmy Moore over Ricky Dixon for circuit court clerk).
Stunning, but, considering all the advance auguries, not altogether surprising.
So how did we get from there to here — to an increasingly edgy time when, beyond the courtroom itself, several mass meetings have been held with supporters of the litigants accusing the Shelby County Election Commission of "criminal" action and threatening, in the words of one vocal participant, blogger/broadcaster Thaddeus Matthews, to "shut this city down"?
To begin with, there was an almost unimaginable glitch — one that developed early in the morning of August 5th. There were many Shelby Countians — a few thousand, in fact — who experienced it in the bluntest way possible.
One such resident was Jack McAdoo of Cordova, who left home early on Election Day, getting to his designated polling place at Hope Presbyterian Church on Walnut Grove shortly after the polls opened at 7 a.m., hoping to get his vote recorded before going on to his job at FedEx.
To his astonishment, McAdoo was told he had already early-voted and could not vote again. Indeed, McAdoo had early-voted — but in April, on the eve of the May 4th county primaries. He, his wife Suzanne, and his daughter Laura had made a point of getting their votes cast as soon as possible, in the Republican primary, for sheriff candidate Dale Lane, a family friend.
McAdoo protested that he hadn't voted during the July early-voting period, and, though he managed to convince the poll workers that some mistake must have occurred, especially since a surprising number of other voters at Hope were finding themselves in the same fix, he and the others ran into a second problem. Nobody at the polling place knew what to do about it. "Nobody. Not a single one of them!" McAdoo recalls.
Eventually, by dint of calling around himself and persuading the poll workers to check with somebody at the Election Commission, McAdoo was allowed to avail himself of one of the two remedies that ended up being proffered to voters elsewhere who found themselves in a similar fix. He signed a "fail-safe" affidavit (similar in form to a change-of-address statement), then was allowed to cast his vote normally. The other expedient adopted at various polls, where the same thing was happening, was to ask denied voters to fill out a "provisional ballot," which would later be subject to verification.
Meanwhile, McAdoo noticed other would-be voters — an elderly couple he knew, in particular — giving up on the process in frustration and leaving the church without voting.
It was ultimately determined that some 5,400 Shelby Countians — early voters in April but not in July — had been potentially affected when early-voting data from the previous election had been fed by error into the electronic poll book (EPM) for August 5th. This was diagnosed as the source of the glitch within the first hour and a half on Election Day, contends Election Commission chairman Bill Giannini, who says poll workers in the county were quickly acquainted with the remedies.
The Election Commission says 2,023 was the number of voters who availed themselves of one of the two mentioned expedients and had their votes recorded. No one is certain — or even has an educated guess — as to how many of the 3,000-odd voters remaining might have showed up at a polling place and, like the elderly couple at Hope Presbyterian, gave up without casting a ballot.
After conducting its own post-election investigation, the Election Commission, composed of three Republicans and two Democrats, identified the commission's IT director, Dennis Boyce, as the inadvertent perpetrator of the Election Day error. They contended that no race had been thereby affected and certified the election results.
Yet the two original litigants (an early version of the post-election suit was later amended), trustee candidate Newman and criminal court clerk candidate Minerva Johnican lost by margins less than the 5,400 threshold, and judicial candidate Glenn Wright's margin of defeat was less than 2,000.
McAdoo today is mindful that the Election Commission, Republican-dominated in Shelby County as elsewhere since the GOP took over both houses of the state legislature in 2008, is under siege. "I don't care," McAdoo says. "I'm a committed Republican, but right is right and wrong is wrong, and what they allowed to happen on Election Day was wrong."
What else might have gone wrong besides the glitch with early-voting data on Election Day? A good deal, say the litigants, their supporters in the Democratic Party and elsewhere, and, notably, Black Box Voting consultants Bev Harris and Susan Pynchon, residents of Washington state and Florida, respectively, who have served as the principal investigators for the plaintiffs.
Beginning the week after the election, the two Black Box consultants, along with a rotating cast of combatants from among the defeated candidates, have been engaged in an uneasy conflict with the Election Commission, alternating with periods of relative truce. The two sides have been mutually suspicious at best and overtly adversarial at worst.
Harris and assistant county attorney Gene Gaerig, one of several lawyers acting on behalf of the Election Commission, even performed their own version of a Civil War reenactment during that first week after the election, when Harris' insistence on wanting immediate access to election materials at the commission's Shelby Farms operations center struck Gaerig as imperious to the point of what he called "Yankee rudeness."
Cardell Orrin of New Path, who was on hand as an observer and was something of a computer maven besides, was forced into a de facto role as interpreter.
In general, representatives of the Election Commission saw themselves as protective of proprietary information, the investigators saw them as stonewalling, and the twain never quite met. After numerous standoffs, which chancery court clerk and master Dewun Settle was called upon to adjudicate, Harris and Pynchon collected enough information about hardware, software, and process issues to issue a report that became the basis of the plaintiffs' amended lawsuit.
The report, taken as gospel by the litigants and their supporters, contained charges that can only be described — for better or for worse — as sensational. They included allegations that the Election Commission's central computer was subject to a "manual override" that allowed for votes to be altered and that specific election machines were programmed with a "ghost race" invisible to voters and capable of being used to swap votes around.
These and other allegations became the basis for several impassioned mass meetings at which, depending on the speaker, the Election Commission, the Republican Party, or a putative white power establishment were all accused of some combination of criminal action and general malfeasance.
At the meetings, and in comments made by the investigators or by the plaintiffs and their supporters, a parallel assault was being made against the Diebold election machinery that was adopted by the Election Commission for use in 2006 and which is anathema to advocates of an alternative voting system, Opti-Scan, which in theory combines electronic ease in voting with a "paper trail" enabling voting results to be verified.
Harris and Pynchon, among others now involved in the local post-election showdown, are veterans of a voting-machine reform movement that saw Opti-Scan approved in 2008 with virtual unanimity by the Tennessee legislature and authorized for statewide implementation in time for this year's elections.
At some point, however, that vote and that commitment were caught up in a partisan undertow that, after the 2008 election cycle, resulted in such newly named Republican state officials as Secretary of State Tre Hargett and state election coordinator Mark Goins joining with GOP legislators in resisting the change — which was put off indefinitely in last year's General Assembly.
Thus several threads of antagonism are twined together and a number of different grudge matches — some partisan, some racial — have now become linked in the current post-election legal showdown.
Chancellor Goldin will need all his judicial acumen and more. The difficulty of assessing blame for the current predicament, of distinguishing between fact and fiction, and of levying proper judgment can perhaps be illustrated by focusing again on the precinct where Jack McAdoo went to vote on August 5th, designated Cordova 9 in the Election Commission's spreadsheets.
And even this limited illustration requires something of a parenthesis: In days of yore, as many readers will remember, The Commercial Appeal's post-election coverage would include several pages on which the totals of votes received by the candidates in various races were neatly tabulated, precinct by precinct.
The newspaper's management can best attest as to why this service has been terminated, but Election Commission administrator Rich Holden offers a likely explanation: The old Shuptronic election machines generated vote printouts that were relatively user-friendly and could be converted into tabular form with relative ease. The printouts generated by the Diebold software now in use by the county are, by contrast, abstrusely organized to an extreme degree, as anyone who has seen them can testify.
Gleaning precinct-by-precinct totals can still be done, but anyone wishing to do so should prepare for a fair amount of wrestling with 2,700-odd pages of amorphously assorted data generated by the Diebold software — an argument against the machinery now in use.
But to return to the case of Cordova 9, McAdoo's precinct was cited by the plaintiffs' investigators as the most flagrant example of "more votes cast than voters."
What the investigators alleged was that, countywide, more than 3,000 votes were reported as cast than were accounted for in the "participating voters" list furnished by the Election Commission. Again, more votes than voters. That, surely, was a disturbing differential and a suspicious circumstance.
And in Cordova 9, a heavily Republican precinct, the disproportion was more than startling. Only 20 participating voters had been vouched for in the list turned over to the investigator, but 619 votes were recorded, at a ratio highly favorable to the Republican candidates vis-à-vis their Democratic opponents. Smaller disparities were reported in other precincts identified as GOP enclaves.
Score one for the plaintiffs.
But, asked to respond to the charge, administrator Holden said the "participating voters" lists in assorted precincts had been midway in a process of updating when they were demanded by the investigators, and he would furnish the Flyer this week with an updated list in which the number of participating voters in Cordova 9 exactly matched the number of votes cast in that precinct.
So maybe the point should be scored for the Election Commission. The plaintiffs' investigators had perhaps made a rash accusation — as uncalled for and over-the-top, say, as all those epithets that were being screamed out at the angry protest meetings.
But, as George Monger, a youthful member of the investigators' team, pointed out, the original list of participating voters containing the disparities had been furnished to the plaintiffs on August 17th, almost two weeks after the election was completed on August 5th and one day before the commission formally certified the results of the election. Wasn't that awfully late in the game for an official list to be behind the curve?
Like the Election Day glitch involving the wrong set of early-voting data, here was more possible evidence that the commission had been less than efficient in its stewardship of the election process. And so, on Monday and thereafter, as the case is heard, public judgment might swing back and forth between a suspicion of incompetence on the part of the Election Commission and a sense of unwarranted rashness on the part of its accusers.
The truth may well lie somewhere in between — within the margin of human error, as it were — and it will be Goldin's task to rescue the facts of the matter from all the claims and counterclaims, from the partisan anger and defensiveness, and from the various special pleadings that have attached themselves to the case of a county election gone awry.
Meanwhile, the list of plaintiffs' allegations continues to grow, with new charges that the May poll book data provided to the investigators differs significantly from the May data that was actually involved in the Election Day glitch incident.
Both Randy Wade, the defeated Democratic candidate for sheriff, and Van Turner, the Shelby County Democratic chairman, claim to have been contacted by unrevealed "John Doe" informants alleging that Election Commission officials knew about the potential glitch a day in advance and allowed it to occur.
And the claim is being advanced from the plaintiffs' camp that the key to everything may be in a central programming card — a simple item analogous to a digital camera's memory card and, say the investigators, highly hackable — that has been so far withheld from inspection by the Election Commission.
(Readers interested in a detailed list of earlier allegations made by the plaintiffs and/or their investigators, as responded to by Election Commission chairman Bill Giannini, should go to "Politics," here.