Among the potential local casualties of the coronavirus, there is an unexpected one — the democratic process itself. At this week’s scheduled virtual meeting of the Shelby County Election Commission, the five Commissioners —three Republicans and two Democrats, in conformity with state regulations regarding majority party/minority party ratios — are primed to vote on Election Administrator Linda Phillips’ recommendations for new voting machines.
Phillips has declared that the members of the Election Commission must take a definitive up-or-down vote on the vendor, whom she will recommend from among those manufacturers who responded to an RFP (request for proposal) issued earlier by the SCEC. She has declared that the decision must come now so that the machines can be in use for August voting in the county.
For years, and for the last several months in particular, controversy has raged between activists who insist on voting machines that permit voter-marked ballots and advocates of machine-marked ballots. Phillips herself has expressed a preference for the latter type, equipped with paper-trail capability. By a narrow, party-line vote, the majority-Democratic Shelby County Commission, which must approve funding for the purchase, has expressed its own preference for hand-marked ballots.
Given the fact that Phillips’ choice of machine type is more or less predictable, and that the cost factor will be built into the selection of vendor, that will put the County Commissioners in an awkward position of having to rubber-stamp whatever choice the SCEC passes on to them.
“The process is backwards,” says GOP Election Commissioner Brent Taylor, who say,. “The Election Commission should not have initiated the RFP and passed the decision about funding on to the County Commission. What we [the Election Commission members] should have done is come to some broad general decision ab out the kind of machines we wanted and then let the County commission issue an RFP, make the choice, and then vote on the funding.”
In that regard he agrees with law professor and former County Commissioner Steve Mulroy, an exponent of voter-marked paper ballots who points out further that what got skipped in the process was a promised public meeting of the Election Commission at which the public could offer input on the desirability of various types of voting machines.
Such a meeting was to have taken place in the last month or so, or in any case before a vote on the vendor was taken by the Election Commission. Or so it was announced at a February meeting of the SCEC. What intervened — and ended up scotching the meeting — was the coronavirus epidemic.
So there will be not opportunity for direct public input concerning the specifics of Phillips’ recommended purchase, a fact further complicated by the awkwardness of the virtual telemeeting process, which, in conformity with cautionary official rules against public assemblies, precludes an actual gathering with the attendant opportunity of easy back and forth interaction between Election Commissioners and the public.
GOP Election Commissioner Brent Taylor
And it seemingly assures that something of a contentious showdown will ensue at the subsequent County Commission meeting, itself convened as a telemeeting, at which funding for the ultimately selected voting machines will be on the agenda. Back when the Commission voted a preference for hand-marked paper ballots, County Commissioner Van Turner made a point of telling Phillips, who was in attendance, that the Commission had ways of exercising its disapproval of a choice.
That memorable and perhaps prophetic exchange went this way: “We can deny the funding,” said Turner. “We can sue you,” Phillips said in response.
The progress toward a new voting system has encountered other obstacles. One was a bombshell ruling by the County Commission legal staff in mid-February that state law — to wit, TCA 29-111 — forbade any purchase of new voting technology without a prior voter referendum. As County Commissioner Mick Wright noted at the time: "It's disappointing that the state has this rule in place, that the voters would have to vote using the system we want to replace in order to have the system that we want to replace be replaced."
The aforesaid Mulroy, however, spurred further research that eventually led the County Commission to create a capital source from existing contingency funds that could bypass the need for a referendum (and incidentally buttress the County Commission’s proprietary sense of the matter).
Another late snag, with partisan overtones, developed from a letter sent to the three GOP Election Commissioners from state Senator Byron Kesey and other Republican legislators calling for the new voting machines to involve machine-marked ballots.