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Politics Politics Feature

Ballot Bombshell: Election Machine Issue Becomes Moot

Some drama was expected, but nothing like the more-than-audible gasp that exuded from the audience at Monday’s meeting of the Shelby County Commission, when Tami Sawyer articulated what was suddenly and shockingly becoming obvious:

“There will be no new machines in 2020,” said Sawyer, summarizing it all in an epiphany after an hour or so of intense debate and argument on both sides of the speakers’ dock regarding what sort of new voting machines the county should get in its long-planned buy in time for the August election cycle locally.

County Election Coordinator Linda Phillips had been making and repeating that promise of new machines for most of the last year, kindling up an ever-growing local controversy as to which type of machine. On Sunday she had published a viewpoint in The Commercial Appeal in which the following two sentences were the key ones: “Now that we are about to replace our outdated voting equipment, the controversy has reached the boiling point. I have spent my career conducting elections, and I’d like to share my viewpoint.”

Jackson Baker

House District 97 candidate Gabby Salinas (l), one of two Democrats running, enjoys an exotic Mideastern dance in her honor at a weekend fundraiser.

Phillips’ viewpoint, as spread out over two pages in the paper, was that ballot-marking devices (BMDs) are superior to voter-marked paper ballots (VMPBs) because, she argued, they are more secure from error, though she acknowledged they were somewhat more expensive as machinery. A contrary point of view is being argued by a determined group of local voter-reform activists, who stress that the hand-marked method is cheaper and more easily checked for accuracy and that the ballot-marking devices favored by Phillips are eminently hackable.

To underscore the latter point, one of the VMPB advocates, Bennie Smith, who doubles as a Democratic member of the Shelby County Commission and styles himself an expert on voting technology, had demonstrated to a previous meeting of the commission that he could insert a predetermined vote total into a result line of the BMD machine’s paper readout.

Both kinds of machine, Phillips has pointed out, possess a “paper trail” capability allowing voters to see and approve a printout of their ballot. (Critics of BMDs, the machines employing ballot-marked devices, complain that voters are asked to base their comparison ultimately on an unintelligible bar code.)

Anyway, the verbal battle was raging as usual on Monday, though Phillips herself was absent, when everything became moot.

Prompted by commission chairman Mark Billingsley, Marcy Ingram, deputy county attorney and de facto legal adviser to commission members, announced to the assembly at large that state law — to wit, TCA 29-111 — forbade any purchase of new voting technology without a prior voter referendum.

“Yes, Mr. Chairman earlier today, we determined that in the budget, the commission has a lot of leeway to use CIP funds, general obligation bonds, to pay for the voting machines. And there’s a statute on the books that’s about 15 years old that says that if you use general obligation bonds you do have to put it out to the voters to let them decide whether or not this is appropriate. So, with that being said, you would have to have a special election or have to put the item on the August ballot, if you intend to use CIP.”

Billingsley reinforced the point: “So in layman’s language for people in the audience and people listening at home … there would have to be a referendum.”

“That would be correct,” Ingram replied. And moments later, Commissioner Sawyer expressed the bottom line: “No new machines in 2020.”

Sawyer went on to argue — in the long run, successfully — that it would still be useful to vote on the resolution that had been in question before the bombshell.

That was Agenda Item #33: “Resolution of the Board of County Commissioners of Shelby County, Tennessee, urging the Shelby County Election Commission to pursue a voter-marked paper ballot approach when spending county funds for new voting equipment.” The primary sponsors of the resolution were Commissioners Van Turner, Willie Brooks, Sawyer, and Reginald Milton.

The background was the fact that the Shelby County Election Commission had, at Phillips’ request, issued an RFP (request for proposal) to potential bidders who would supply new voting machines for use by her promised date of August, and the controversy over which kind of machine had flared up there.

On the basis of the divided responsibilities built into Shelby County government — in this case, that, while the SCEC could decide on the machinery, the county commission could vote Yes or No on whether to fund the purchase — the advocates of hand-marked ballots, prevented from speaking at SCEC on grounds that the RFP was underway, had resolved to take their case to the commision.

Before attorney Ingram’s bombshell announcement, the VMPB activists — law professor and former County Commissioner Steve Mulroy, teacher and recent city council candidate Erika Sugarmon, former legislator and school board member Mike Kernell, and veteran rights activist Dr. Suhkara A. Yahweh — had pleaded their case, with eloquence and examples.

It was all for naught, though there would indeed be a vote on the agenda item, expressing a preference for ultimate use of hand-marked ballots by a de facto party-line vote of 7-6, with yea votes coming from Democrats Brooks, Mickell Lowery, Eddie Jones, Milton, Sawyer, Michael Whaley, and Turner and no votes coming from Republicans Mick Wright, David Brandon, Amber Mills, Brandon Morrison, chairman Billingsley, and Democrat Edmund Ford.

Jackson Baker

Commissioner Wright cited the fundamental irony

In the fallout from the bombshell, there was general discontent from commissioners, whatever their ideology or point of view on the merits of particular machines, that word of the potential predicament had not been sounded long before, that, as Chairman Billingsley put it, “the people charged with the election would have made us aware of this by now.”

Commissioner Wright cited the ultimate irony of the situation: “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.”

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Opinion Viewpoint

Make It Manual! Voting by Hand is Safer and More Accurate.

Shelby County is getting ready to replace its aging, unsecure voting machines with new voting equipment. When we did this 15 years ago, we opted for the more expensive, shiny, new high-tech touchscreen system over the more reliable low-tech paper ballot system, causing years of election problems.  

Steve Mulroy

We’re about to make the same mistake again.  

Hand-Marked Paper Ballots vs. Touchscreens: Local election reform advocates argue for a hand-marked paper ballot system. A voter would fill out a paper ballot by hand, filling in the bubbles on a scantron sheet like we’ve been doing for half a century with the high school ACT test. The voter would then feed the paper into a scanner, which would record the vote and retain the paper ballots securely so they could be used as a check against the computer record.  

This system is used in 38 states. Hamilton County (Chattanooga) has used it successfully for over 20 years. 

Instead, the Shelby County Election Commission is considering the latest shiny, new system, the Ballot Marking Device (BMD). With BMDs, voters would press touchscreens as before, and the touchscreen computer would print out a paper receipt which the voter can then inspect for accuracy before feeding it into a machine. The BMD system is twice as expensive and half as secure. 

Expense: Both BMD and hand-marked paper ballots require a scanner at each voting precinct. But BMDs additionally require at least three to four expensive BMD touchscreen machines at each precinct. Gilford County, North Carolina, recently reported saving $5 million by opting for hand-marked paper ballots over BMDs. Since their population is smaller, it’s reasonable to expect about an $8 million savings here in Shelby. 

Security: The security problem is in letting a computer mark the paper receipt rather than having each voter do it himself. Any computer can be hacked. Human beings can’t. Election security experts have already demonstrated how BMD machines can be hacked to make the computer print out bogus candidate selections. And even absent fraud, like with all computers, glitches are possible. 

BMD advocates say, not to fear: Before the voter feeds the paper receipt into the scanner, she can spot any error and alert an election official. But that may not work in the real world, with a sophisticated hack or a non-obvious glitch. A recent University of Michigan study showed that over 90 percent of the time, voters failed to report such errors when they were present. In a close race, the study concluded, these computer errors could easily change an election outcome. 

Even worse, most BMD scanners actually read a bar code on the paper receipt, like the kind used at a grocery checkout line, instead of the human-readable parts of the paper showing which candidates were selected. Since human beings can’t read a bar code, even the most diligent and eagle-eyed voter won’t be able to tell if her vote’s being stolen. Colorado recently banned bar codes in its elections. 

For these reasons, most election security experts recommend hand-marked paper ballots over BMDs. Since the scanners common to both systems are also not perfect, they also recommend Risk Limiting Audits (RLAs), where election officials manually examine a statistical sample of paper ballots to make sure they match up with the computer-recorded vote totals. Four states now require RLAs, with more expected. 

The Other Side: BMD advocates object, saying that voters will screw up marking their paper ballots, introducing unacceptable levels of voter error. It’s also harder for some disabled voters, they argue. Finally, they say it’s unworkable during early voting in a big county like Shelby, which has over 100 different types of ballot faces (depending on which state/county/city/school board district a particular voting precinct is in). But Hamilton County, the third-largest county in the state, with over 135 different ballot faces, has managed all these issues successfully for over 20 years. They report low voter-error rates, smooth early voting sailing, and accommodations for disabled voters in each precinct. If they can make it work, why can’t we? 

The Shelby County Commission, which has to authorize most of the $10 to $12 million in tax dollars for this voting machine purchase, is this week and next considering a resolution supporting hand-marked paper ballots and not BMDs.  The resolution would put the Election Commission on notice that they should move toward hand-marked ballots if they want county funding. There’s still time to get this right. Contact the County Commission this week at 222-1000 and tell them you want hand-marked paper ballots with Risk Limiting Audits. 

Or, be prepared for another 15 years of unreliable elections. 

Steven Mulroy, a former Shelby County Commissioner who teaches election law at the University of Memphis law school, is author of the book Rethinking US Election Law: Unskewing the System.