By Dick Williams

The Tennessee Voter Confidence Act (TVCA) requires replacement of paperless touchscreen voting machines with optical ballot scanners by November 2010. Optical-scan voting systems read marked paper ballots and tally results, providing a tangible record of the voter's intent. They are now the most widely employed voting systems in the nation, used by 60 percent of voters in other states.

The TVCA was adopted nearly unanimously by the Tennessee Legislature – by both Democrats and Republicans -- and in 2008 enthusiastically signed into law by Gov. Phil Bredesen. But implementation of the law has been ensnarled in legalities and technicalities.

Tennessee's secretary of state and coordinator of elections have argued that the new law requires scanners be federally certified to 2005 standards, and because no machines have yet been certified to that standard, the law cannot be put into effect in time for 2010 Elections.

That’s why Common Cause Tennessee and other voters' rights advocates, in an effort to break the logjam, filed a lawsuit seeking clarification of the law's language. Nothing is more important than having verifiable ballots. There is no good reason for running the 2010 elections with systems that are vulnerable to error and don't allow a recount or an audit.

In a November 5 ruling, Chancellor Russell T. Perkins concluded that the TVCA does not require new ballot scanners to meet those 2005 standards, but declined to issue an injunction forcing application of the law. Still, the court ruled that the secretary of state was "obligated to take prompt, effective steps to meet the statutory deadline" as long as their choice of standards "does not jeopardize meeting the Legislative mandate to implement…on or before the November 2010 election."

Tennesseans need – and deserve – to have verifiable ballots in place for the 2010 election. Paperless systems are subject to unintended errors and possible hacking; hence votes might not be recorded as intended. Without a paper ballot available for audit or contested election, there is no way to tell whether a voter's intent was accurately recorded. These are not just abstract, theoretical concerns. California, after rigorous testing, decertified the same machines which are still deemed acceptable in Tennessee. Are California’s votes more precious, more sacred than the vote of Tennesseans?

Steven John Mulroy, a University of Memphis law professor and Shelby County commissioner, who represented the plaintiffs in the case, said, “This is a vindication of the election reformers’ position all along. The court agrees with us that, contrary to what the secretary of state has been saying, the TVCA allows us to use currently available voting machines, and that the secretary is legally required to begin doing so immediately.”

State Coordinator of Elections Mark Goins said the court's conclusion could force the state to obtain obsolete equipment that would have to be replaced. But an affidavit submitted by voting technology expert Dr. Douglas Jones, associate professor in the Computer Science Department of the University of Iowa said that if election officials wish, optical scanners certified to 2002 standards could be upgraded to 2005 standards without difficulty.

After the ruling, plaintiffs’ attorney Gerard Stranch stated “The ball is now in the secretary of state’s court. Hopefully, they will have greater respect for the will of the court than they did for the will of the legislature.”
Williams is state chair of Common Cause Tennessee.
Copyright (C) 2009 by the Tennessee Editorial Forum. 12/09