Election officials face impossible mandated task

Posted: Wednesday, July 15, 2009 9:40 pm
By GLENDA H. CAUDLE
Special Features Editor
Apparently some of Tennessee’s lawmakers “just don’t get it” — the seemingly insurmountable hurdle they have placed in the path of election commissions across Tennessee who, it turns out, “just can’t get it.” That is the assessment of Obion County election officials and county commissioners faced with what appears to be an impossible task imposed upon them by legislators in Nashville.
It all comes down to a specialized type of voting machine. Fourteen senators in Nashville — 13 Democrats and a lone Republican — want all 95 county election commissions to have optical scan voting machines and paper ballots in place for the 2010 elections. Election officials say that is an impossibility because machines that meet the standards imposed by the Voter Confidence Act passed in 2008 do not exist. In other words, they can’t get the equipment they are required to have to be in compliance with election law. They want a delay in implementing the law until the 2012 voting cycle.
The problem is, a slim majority of the state’s senators appear to be either unwilling or unable to understand the problem, according to local officials concerned not only about the issue of compliance but also with the looming questions of voting accuracy, the integrity of the voting process and the expense for Obion County.
The Obion County Legislative Body is poised to address the problem, with one of their members defining it is an “unfunded mandate,” in its session Monday. An agenda item for that meeting is consideration of a letter of support for the Obion County Election Commission as that body looks into a possible court challenge to the 2010 implementation of the Voter Confidence Act, according to Ralph Puckett, chairman of the county court.
Background
The Voter Confidence Act, which passed both houses of the General Assembly with “broad bipartisan support” in 2008, according to Tennessee Secretary of State Tre Hargett, requires that all 95 counties in the Volunteer State use optical scan voting machines and paper ballots no later than the November 2010 election cycle. The act is very specific, Hargett says, mandating the counties use only certified equipment that meets the security and reliability standards adopted by the federal Election Assistance Commission in 2005.
The problem for Obion County and the other 94 such entities in Tennessee is, there are no vendors certified to sell equipment meeting those standards.
“Because the commission’s certification process typically takes about 18-24 months,” added Hargett in a recent press release, “I’m not confident that a vendor could complete that process in time to have equipment in place for the November 2010 elections.”
The secretary of state describes the situation as a “Catch-22 for county governments.”
“Whether counties acquire new equipment or not, they will still not be in compliance with the act,” Hargett says.
A bill to address the problem by delaying implementation of the act until 2012, when the specified equipment might conceivably be available, passed the state House of Representatives recently, again with “broad bipartisan support.” All Republicans voted for the bill, as did a majority of Democrats who were present to vote, including Judy Barker of Union City. Mrs. Barker, Obion County election commission member Rob Joyner says, was in close contact with local election officials and commissioners to see how the bill would affect Obion County and her vote reflected local concerns.
However, the legislation fell a vote short of passage in the Senate June 18. Seventeen votes were required to provide for the implementation delay. Only 16 were recorded — all Republican. Thirteen Senate Democrats, including Sen. Roy Herron, who represents area citizens in District 24, voted against passage of the Senate bill. One Republican teamed with Democrats, and two Republicans were absent for the vote. And so the law calling for use of the non-existent scanners still stands — and still plagues local voting officials and county commissioners.
Sen. Herron was unavailable for comment when The Messenger sought to make contact Tuesday afternoon at his Nashville senatorial office and this morning at both that office and his Dresden law firm.
Local concerns
Obion County replaced its old pull-lever voting machines with new touch screen machines in June 2002, when 39 of the systems were purchased at a cost of $191,995. Four years later, in June 2006, 13 touch screen machines for handicapped voters were purchased. The State of Tennessee reimbursed Obion County for the entire cost of the most recent purchases and in 2006 — four years after the fact —finally ponied up $185,540 in partial reimbursement for the standard equipment purchase of 2002.
Those new machines — which will have been in place only eight years for the standard machines and four years for the machines adapted for handicapped voters by the 2010 election cycle — will no longer be acceptable, once the Voter Confidence Act goes into effect.
That fact alone is enough to leave members of the Obion County Legislative Body with less than positive feelings about the law now being enforced by an actual minority of legislators in Nashville. They are even more disturbed, however, to find they must replace those machines with equipment that does not even exist.
Supporters of the original act say the machines will make it easier to conduct recounts and verify election results since there will be paper ballots fed into a vote-counting machine. But local election officials are far from reassured even on that point.
Last year, Joyner and Obion County Legislative Body chairman Ralph Puckett went to Hickman, Ky., to see how voting officials there handle paper ballots in a set up that is not certified to meet the standards of the Voter Confidence Act but is, nevertheless, an optical scan system similar to one that would have to be used in Tennessee under the act’s provisions. A representative of the manufacturer was training poll workers in Hickman and allowed the Tennessee guests to have access.
In observing the way paper ballots were handled, the local officials spotted several areas for concern.
As Joyner understands the procedure, it would function in this way: A voter would walk in the door, make contact with a local election official and present the identification called for. The voter would then be presented with one or more paper ballots, depending on how many issues and offices are involved in the election cycle.
Under the present system in place in Obion County, according to Joyner, poll workers “program” the touch screen voting machine when the voter tells them what election he wishes to take part in and the appropriate ballot with all voting options relevant to that voter’s area of residence “pops up” on the screen. Dozens of candidates and issues can thus be addressed privately and with a minimum of effort and confusion on the voter’s part. If necessary, Joyner says, printers can be purchased to connect to the machines and provide a “paper trail” some feel is essential.
Elections using paper ballots, by contrast, would require the voter to juggle multiple paper ballots for marking with a pencil, depending on the number of candidates and variety of issues at stake in the election.
In the scenario Joyner describes for the future, once the potential voter collects the appropriate ballots from a poll worker, he will be escorted to a table and provided with a pencil for marking the ballot. If the voter makes a mistake, he must appeal to the poll worker for a fresh ballot, and the “spoiled” ballot must be placed in a special ballot box before a new one can be dispensed. Then the marking process begins again. The potential for “wasting” numerous paper ballots and for introducing irritants into the system not only for the troubled voter but also for the poll worker and other voters who are waiting to use the system looms large, Joyner says.
By contrast, under the present system, the voter can retrace his steps on the touch screen and correct any selection he may have made in error. Voters are even urged by prompts on the screen to review their ballots and make sure they reflect their wishes before they submit them for a count.
But suppose, Joyner says, the paper ballot voter is satisfied with his votes and proceeds to feed them — one ballot at a time — into the optical scanning vote “reader” being required by the recent events in Nashville. Suppose, further, that the machine is unable to read the ballot, or a particular selection on the ballot, because of an indistinct mark or because a selection was not “filled in thoroughly” or because the voter appeared to have erred in some other way. That ballot will simply be “spit out,” and the voter will lose all his votes on that ballot without any possibility of correcting the problem, since there is no way to trace individual voters and offer them a chance to clarify their wishes.
Joyner says, further, that he is unaware of any effort to accommodate handicapped voters using the new system — another potential problem.
And, finally, the state has agreed to cover the cost of only one ballot reader for each polling place, meaning voters will have to wait their turn to feed in their ballot/ballots.
Expense falling on the shoulders of local government already concerned about their budgets are also part of the scenario confronting county commissioners. Will the single machine to be provided by the state for each polling place be sufficient for the needs of the voters, and if it is not, who will pay for additional machines?
Danny Jowers, chairman of the Obion County Budget Committee, said he is puzzled that proponents of the new paper balloting system are pushing so hard for its implementation. “The members of the Budget Committee see this as an unfunded mandate on the county. It could add $15,000 to $20,000 to each election. If (state government) will only pay for one machine per precinct, who will pay for the rest? The cost associated with it is what I am concerned about. They told us the last machines (those currently in use in Obion County) were the best thing going, so now, why — all of a sudden — are these so bad?
“I know what our senator is saying about it and the only thing that puzzles me is, all we are asking for is a two-year delay until we could get the machines and find out how much it would cost, but for some reason, they want to ram it through. That has me puzzled. I don’t know what the truth is.”
“It’s just throwing money away,” Puckett says of the push to implement the system by 2010. “Another thing (to be concerned about) is the paper ballot. Only a few — maybe two companies — make the paper that can be used and it is expensive. In even a smaller election, it might cost about $30,000 (in local funds) to hold that election, because you have to have 110 percent (the number of paper ballots that must be on hand, to adjust for ballot spoilage) of the number of voters. Only about 25 percent (of the eligible voters) actually vote, except in a presidential election, so you waste a huge amount. And if there is a long ballot, with three or four sheets, that could cost three or four times that figure and the county has to buy the ballots. If the state wants to shove this down our throat, why don’t they furnish money to buy the ballots?
“When this was first presented, the fiscal review committee tagged it as no expense to the county, so it passed easily, but then the final bill says the counties have to buy the ballots. In Weakley County, I read a report they put $48,000 in the budget for only one election.”
Costs for ballot storage and new training for poll workers will also fall on Tennessee’s counties.
To add to the gloomy picture, local officials trying to meet the specifications of the act say they can see problems with elderly voters or voters with some difficulty with motor control or with vision problems having to feed ballots into the scanning machines. If their well-meaning efforts to vote instead create a paper jam or if some other problem affects a machine and it “goes down,” leaving a precinct without an approved means of recording the votes until a new machine can be brought in or repairs made, “that could really slow us down,” an official said.
Why change?
The concern of the senators who are insisting that election officials must have the new machines in place in time for the 2010 elections appears to be rooted in a fear of “conspiracies” designed to interfere in the balloting process, according to a spokesman for the Obion County Election Commission.
Joyner said those who want to abandon the equipment now being used say the machines are not trustworthy and could be “jimmied.” Joyner adds that even if the new paper ballot voting machines were available, the paper ballots would be counted by a computer system and the system would still be open to fraud of the same type the paper ballot proponents say they fear. In addition, the new paper ballot system would not offer any safeguard against the “discovery” of containers of suspicious paper ballots supposedly “rescued” from an automobile or some other location at the last minute. Similar scenarios have come into play in numerous elections in the past and have been the cause of heated political battles.
The system currently in place in Obion County has a fail-safe feature which will not allow voting to be “closed out” until all the boxes from voting precincts have been accounted for. This eliminates the chance of “missing” a box or of contention over whether a “discovered” box should be accepted. Such safeguards may not be part of the new system, but it is difficult to know since no such systems exist at this point, opponents of the mandated 2010 change point out.
Even if these possibilities for a potential “gaming the system” were solved by the use of the new voting systems being required, the problem of acquiring the machines remains as the paramount obstacle to conducting legal elections in 2010, thanks to the senators’ refusal to delay implementation of the act.
Joyner points out, further, that some of those who profess to favor the 2010 implementation of the act because they are concerned about the possibility of fraud using current voting machines are unwilling to support efforts to eliminate fraud in other areas.
A letter from Chris Devaney, chairman of the Tennessee Republican Party, to State House Minority Leader Gary Odom, a Democrat, echoes those charges and calls on Democrats to support legislation that is being held up in the General Assembly by that party. Specifically, Devaney wants Democrats to agree to drop their opposition to:
• HB.1838 — Requiring the county registrar to verify proof of citizenship for voter registration and identify verification when voting.
• HB.0779 — Requiring the State Coordinator of Elections to promulgate rules to make it easier for overseas military voters to return their absentee ballots.
• HB.0639 — Requiring a voter to present photo ID to vote, and allowing voters without proper ID to cast provisional ballots.
What next?
In a meeting July 6, the Obion County Budget Committee voted to support the filing of a suit by the local election commission to delay implementation of the Voter Confidence Act until 2012. County commissioners will have the opportunity to add their support to that action Monday.
Meanwhile, county attorney Steve Conley of Union City is hopeful that the situation can be resolved by the secretary of state.
The legislature is in recess and Conley says he has not been in contact with either Rep. Barker, who supported the delay in implementation, or Sen. Herron, who opposed it.
“There is a November 2010 deadline, so there is no urgency to file at this point,” he says. “My advice is not to rush into a lawsuit if there are other avenues. At this point, I am simply working with county attorneys and the secretary of state’s office and hoping to have the secretary of state take care of this for us. But, if not, we will be working hard to get the legislature to pass a bill delaying implementation. Secretary of State Hargett has more authority than any county attorney or collective group of attorneys, and he is reaching out to legislators. His office is over the state division of elections and if that office is saying the equipment is not available, I don’t see how the legislature will have any choice but to delay.”
If those avenues fail, however, Obion County officials want to be ready to respond and they are finding other counties share their concerns.
Officials in Sullivan County in East Tennessee have unofficially expressed interest in joining a possible suit to delay implementation of the act, and local officials say they believe other counties may come on board, as well.

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