Plaintiffs welcomed key findings made by Chancellor Russell T. Perkins yesterday in a lawsuit seeking to require Secretary of State Tre Hargett to purchase paper ballot voting systems in time for the November 2010 elections.

The court issued a conclusion of law that the Tennessee Voter Confidence Act, signed into law in 2008, does not require new ballot scanners to be certified by the federal Election Assistance Commission to 2005 voting system standards. The law requires all counties to replace paperless touch screen voting machines with optical ballot scanners by November 2010.

Chancellor Perkins declined to issue an injunction at this time forcing Secretary Hargett to implement the law. The Secretary of State and the State Coordinator of Elections have argued that the law requires that the scanners be federally certified to the 2005 standards, and since no machines have yet been EAC-certified to that standard, the law cannot be implemented in time for the 2010 elections.

Steven John Mulroy, a University of Memphis law professor and Shelby County Commissioner who represented the plaintiffs pro bono 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 Secretary is legally required to begin doing so immediately.”

State Coordinator of Elections Mark Goins stated that the court's conclusion could force the state to obtain “obsolete” equipment that would have to be replaced. In fact, an affidavit submitted to the court by voting technology expert Dr. Douglas Jones stated that optical scanners certified to 2002 standards could be upgraded to the 2005 standards without difficulty if election officials wish. Goins also inexplicably stated that implementation was delayed as a result of the lawsuit being filed that requested that he expedite implementation.
The Tennessee Voter Confidence Act was passed in the wake of the 2007 staff report of the Tennessee Advisory Commission on Intergovernmental Relations (TACIR), which explained how paperless touch screen voting machines are prone to undetectable error or tampering. The Act requires that precinct-based optical scanners be in place no later than November 2010. Nationwide, the last several years have seen a trend away from paperless touch screens, with states such as Iowa, Florida, and California eliminating or restricting their use (http://verifiedvoting.org/verifier).

Optical scan voting systems are now the most widely used voting method in the nation, and are used by over 60% of the nation's voters.

“Nothing is more important than having verifiable ballots,” said Dick Williams of Common Cause Tennessee. “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,” Williams said.
In ruling, the Chancellor held that the defendants are “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 general election.” Following the hearing, Attorney Gerard Stranch for the Plaintiffs said: “The ball is now in the defendants court, hopefully, they will have greater respect for the will of the Court than they did for the will of the legislature.”