Just more than two months ago, on August 5th, the Shelby County general election was completed — or was it? Here it is slightly more than two months later, and a trial got under way this week to discern whether the results of that election — specifically, a surprising but emphatic Republican sweep of countywide races — will stand or will be voided as "incurably uncertain."
Ten plaintiffs — the eight Democrats who lost to GOP opponents in the general election, plus two judicial candidates — are hoping for such a reversal, which would seem to be the longest of long shots, while the task confronting the Shelby County Election Commission, defendant in the case, is to secure or regain (whichever verb turns out to best describe the situation) a reputation for competence and accuracy.
When two preliminary matters came up for review in Chancellor Arnold Goldin's court on Monday, the form sheet, based on events so far, held: The Election Commission seemed to be behind the curve in surprising and eyebrow-raising ways, and the claims of iniquity and vote theft at the heart of the plaintiffs' case took a setback.
The first issue to be dealt with was the plaintiffs' complaint that a discovery motion of theirs, their request for a complete list of participating voters in the August 5th election, was late in coming from the Election Commission. The plaintiffs had assumed a deadline of last Friday for receipt of the list, while the commission, using a different arithmetic, was apparently on course to turn over the list once the trial got started.
Chancellor Goldin seemed honestly baffled by the fact of contrasting interpretations of the discovery calendar — which was unique in his judicial experience, he suggested — and made an effort to be even-handed. "I think both sides share some responsibility for this," he said. But it seemed clear that he was most surprised at the commission's dilatory response.
Some of the intensity that is sure to come in this case was prefigured by accusations going back and forth between the plaintiffs' lead attorney, Gerard Stranch of Nashville, and Sam Muldavin, who handled this part of the proceedings for the Election Commission. Stranch suggested the commission was "stonewalling," while Muldavin maintained that the plaintiffs had been vague in specifying what it was they were seeking.
The upshot of it all was that Goldin imposed a deadline of 4:30 p.m. Monday for the turnover of the participating voters' list. Its importance to the case is that the plaintiffs have made it one of their central allegations that somehow more votes were cast in the election than there were voters to cast them.
Election Commission administrator Rich Holden would ultimately respond that the discrepancy was only apparent in that investigators for the plaintiffs had, by insisting on election materials prior to certification, acquired a temporary participating voters' list. A complete list of voters in Cordova 9, which was furnished to the Flyer last week, demonstrated that the number of participating voters and votes cast in that precinct matched precisely, though earlier the appearance of an unusually large gap between the two totals had made Cordova 9 something of a cause célèbre.
The other issue dealt with on Monday redounded more to the Election Commission's satisfaction. Two of the consultants who had shouldered much of the investigative work for the plaintiffs — citizen activists Bev Harris of Seattle and Susan Pynchon, a Floridian — were not admitted as experts on the technical aspects, a point gratifying to Election Commission attorney Gene Gaerig, who insisted their competence was limited by their lack of training. Julie Ann Kempf, also of Seattle, was accepted by Goldin as a technical expert on the basis of her 20 years' experience with election mechanics.
The allegations made in the plaintiffs' lawsuit — which include assertions that aspects of the Diebold voting machines' system made alteration of votes possible — stem fairly directly from research and conclusions on the part of Harris and Pynchon.
Answering a follow-up question from Stranch, Goldin went on to rule that Harris and Pynchon, both representatives of the advocacy organization Black Box Voting, could testify about their direct observation of matters relating to the Election Commission's handling of materials and how they interacted with the plaintiffs' camp.
That could make for some interesting courtroom drama, in that, when Harris and Pynchon showed up at the Election Commission's operations center early in the game, Harris and Gaerig clashed — with Harris insisting on access to certain voting materials and Gaerig being equally emphatic that the information she sought involved Diebold software matters that were proprietary.
Members of the plaintiffs' team would insist later that Gaerig had complained of Harris' "Yankee rudeness," but Gaerig denied having used such terminology on Monday, and follow-up questions of those who had vended the story in the first place found them now backing off the quote.
The trial proper will begin on Wednesday. Attorneys include Gaerig, Muldavin, and John Ryder for the Election Commission, and Stranch, David Cocke, and Regina Morrison Newman for the plaintiffs. Newman, who was county trustee before her defeat on August 5th by Republican David Lenoir, is also a plaintiff.
• While being feted by longtime Memphis friends Bill and Claudia Haltom on his birthday at the Haltom's Hein Park home last Thursday night, 8th District congressional candidate Roy Herron couldn't resist telling the crowd of well-wishers on hand about a gaffe made earlier that day by Democrat Herron's Republican opponent, Stephen Fincher, a stay-away from Memphis for most of the campaign year.
Gathering friends from the Raleigh-Frayser area around him to underscore his point, Herron, a state senator from Dresden, said, "My opponent was in my home county, Weakley County, the first time they let him out from under the wraps, the first time he's been interviewed by a reporter from Memphis or Jackson or an AP reporter this whole month." He then warmed to his punchline: "He managed to convey that he did not know that any of the city of Memphis was in the 8th Congressional District. You cannot make this stuff up."
The birthday celebrants laughed appreciatively. "What else doesn't he know?" a female voice was heard to say.
Herron went on: "I've known about Frayser for 50 years now. My wife grew up in Memphis. If you look at the 8th District race and want to make one clear distinction, there's one candidate that knows that Memphis is in the 8th District and one that doesn't, and I'm the one that does." He then nodded toward wife Nancy, standing nearby. "And there's no candidate in any race that's more indebted to Memphis. I married the best, the kindest, the sweetest woman in the whole world that came from Memphis."
He finished up by saying, "I'll be honored to represent the city of Memphis, and if you give me the opportunity, ladies and gentleman, I'll work from 'can to can't' to represent you and the rest of the people from this congressional district."
The Fincher remarks referred to by Herron occurred during an interview with Commercial Appeal reporter Richard Locker after Fincher had addressed students at the University of Tennessee at Martin.
Locker asked Fincher what he might do for Memphis and Shelby County if elected, and the Republican candidate, a farmer/gospel singer from Frog Jump in Crockett County, responded, "I'm in Memphis a lot and see lots of folks. They're close to us and part of the district ... . The city of Memphis is not in. But we're going to work for the state and country to do what we can. Memphis is a key part of the 8th District. I mean it's close to us."
When Locker asked Fincher for clarification on whether he thought parts of Memphis lay within the 8th District, Fincher responded that the district lines extended into Shelby County. "Just into the county part. I don't think we have the city part. I don't think the city of Memphis."
At that point, according to Locker's article about the incident in the CA, Fincher aide Paul Ciaramitaro prodded his boss, reminding him that Frayser, a part of Memphis, lay within the 8th District. Fincher then corrected himself, saying, "Frayser is. Okay, yes." Neither he nor Ciaramitaro would go on to mention the fact, nor was it remarked on in the article, but Raleigh, which adjoins Frayser, also lies within the 8th District.