Wednesday, August 25, 2010





Ten countywide candidates in the August 5th election have formally filed an election contest in Shelby County Chancery Court requesting injunctive relief. The ten plaintiffs in the suit include certain non-partisan judicial candidates as well as certain Democratic nominees, all of whom competed in the County General Election earlier this month.  Based on an inspection and investigation of the Shelby County Election Commission (SCEC) and of August 5th election records, the suit claims that the election process was incurably flawed to the extent that the citizens of Shelby County were denied a free and equal election as required by Article I of the Tennessee Constitution.

The suit alleges widespread irregularities, improprieties, discrepancies and voting problems so significant as to have affected the outcome of the August election and to have caused the election results to beincurably uncertain. Already known is the massive error already acknowledged by the SCEC and described by the SCEC itself as “unacceptable” where invalid and inaccurate voter eligibility records were provided to polls on Election Day potentially affecting 5,400 voters and turning away thousands. 

“This lawsuit is intended to assure that the OTHER substantial and appalling improprieties which occurred in the August election are brought to light, investigated and resolved for all citizens and for every future election. The handling and mishandling of the August election by the SCEC is an embarrassment to our county and a violation of every principle on which our country was founded.  Regardless of race, party or gender, every citizen is entitled to better and is entitled to an unimpeded and transparent voting process. Our upcoming November election, including the vote on consolidation of Memphis and Shelby County, is important to many, and we intend to do everything in our power, with the approval of the courts, to assure that every citizen’s vote counts. None of us should tolerate incompetence or impropriety.”

Examples of problems from the suit:

1.    Votes Without Voters: According to SCEC records, the Participating Voters List for the August election includes 176,119 voters.  Without explanation, the Certified Statement of Votes Cast shows 182,921 votes as being cast in the August 2010 election.  Thus, according to SCEC’s own records, 6,802 more votes were cast than individuals who participated in the August 2010 election.

2.    Missing Vote Batches: Unexplained errors in vote count are reflected by the voting machines.  Vote batches are numbered sequentially based on when they are uploaded from the voting machines, and all early vote uploads to the central tabulator should reflect an upload date of August 5.  However, two of the batches mysteriously reflect an upload date of August 12 (the first day of inspection) –yet they remain sequentially listed with the other early vote batches that were all uploaded on August 5.    Further, twenty batches of vote uploads are no longer in the system at all (vote batches 245-265) with no record of them at this time. The missing batches potentially contain between 6,000 and 18,000 votes.

3.    Provisional Ballots:  Errors were committed with provisional ballot counting.  Eight entries appear in the GEMS software audit log at SCEC stating that provisional ballots were manually entered on August 12, 2010, but only one entry appears in the batch entry, and according to the poster log, 13 batches were manually entered.  Plus, only about 70% of the provisional ballots cast are being credited as valid.

4.    Turnout Inconsistencies: Inconsistencies exist in the SCEC’s daily turnout figures for early voting sites.  During early voting, poll watchers for candidates documented voter turnout at specific early sites, yet the turnout figures subsequently released by SCEC for each day were inexcusably inconsistent.  Final voter count taken after the last voter voted each day should have exactly matched the actual count released from the SCEC.  In some instances, the count was off by as much as thirty (30) votes in a day.  Such widespread and pervasive inconsistencies occurred at the twenty satellite voting locations over the approximate two-week early voting period as to make the results of the August 5th election incurably uncertain. 

5.    Poll Tapes:  Poll tapes from each voting machine with vote results are to be signed by poll workers and maintained by SCEC in accordance with law (TCA 2-8-108).  During the first day of the post-election inspection at the SCEC Operations Center, two large trash bags were found containing crumpled, but original signed poll tapes, without reasonable explanation from the SCEC except that they were being thrown away.  Such election documentation is required to be preserved by law.  On the other hand, many poll tapes being kept by SCEC to allegedly verify the certified vote totals lack proper signatures and verification, and others are just missing, making it impossible to confirm vote totals.

6.    Unsealed/Unsecured Equipment:  Voting machines, tabulators, memory cards and other voting apparatuses used in the election were seen at the SCEC Operations Center and were not secured or stored in a manner to protect them from manipulation. Many voting machines used in the election were not sealed and had not been sealed since Election Day, August 5th.  Multiple voting machines were not returned to the SCEC until August 12, 2010, a week after the election in violation of law.  There were voting machines running at the SCEC between August 12th through at least August 17th, all open and able to accept votes – more than a week after the election.  Memory cards holding votes were in open boxes throughout the facility. 

7.    The Ghost Race:   The election machines chosen by SCEC affix an ID to each race being run.  One ID number is found on the GEMS report and poll tapes and a corresponding but different ID is in the MDB tables.  For example, the Sheriff’s race is ID 92 in the MDB tables and is identified as race 408 in the export to GEMS.  According to the MDB and GEMS tables, there are a total of 105 races.  However, only 104 races were visible to the public while voting, with one race existing but hidden from view.  In the MDB tables, this “Ghost Race” is designated Race 105, with GEMS export ID number 440.  This “Ghost Race” was created on June 11 and remained in the system until after the August election.  It is coded so as to be hidden on both touch screen (early voting and at the polls) ballots and absentee ballots.  It does not appear to be designed to capture votes entered by voters – but it can be used to transfer, delete or temporarily store votes.  The race contains no candidate and is marked “nocount” which will cause any votes in this race to be omitted from vote count reports.
The existence of a “Ghost Race” is similar to a dummy bank account or a second set of log books.  It allows votes to be moved around without reflecting transactions in the audit data.  The most troubling aspect is that it only appeared on ballot styles 2, 10, and 80 – which encompass 54 primarily Democratic precincts.

8.    Obstructionism:  On August 17, 2010 during inspection, employees of the SCEC were stopped while taking computers to their cars.  SCEC represented to the inspection team that the computer memories had been wiped clean, and the computers were being given away due to their age – per a ‘policy’ of the SCEC.  However, upon examination, the computer memories were not wiped clean; voter files were on the machines and the machines’ memories indicated they had been accessed multiple times in the wee hours of August 12, 2010, before candidate inspection teams arrived that same day.

9.    Vote Swap: Numerous incidences of “vote swap” were recorded during the election, where voters voted for one candidate by touching the appropriate candidate’s name on the electronic touch-screen, only to have another candidate’s name appear.  The vote swap issue was consistent and pervasive throughout the election period and SCEC did not cure the problem. 

10. Party Identifiers:  Another distinct problem during the election was “party identifiers” being erroneously placed next to candidate names on voting screens.  For example, numerous reports exist of non-partisan candidates for judicial elections having “party identifiers” labeling them as Republicans or Democrats next to their names.  Such political identifiers are improper and significantly impact judicial races, which are non-partisan.

11. Voting Unavailable: In both May and August elections, some polls opened late – as much as an hour and a half – or had voting machines which were inoperable for periods of time while voters were turned away.  The SCEC denied all requests to keep the respective poll(s) open longer to make up that down time. Some voters attempted to vote 3 times.

12. The Wrong Early Voting Database:  SCEC has acknowledged loading the wrong early voter database in the Electronic Poll Books (EPBs) used for August 5th, potentially resulting in 5,400 voters being told they already voted.  Affidavits have been collected evidencing voters turned away without being given options and/or threatened with prosecution. Some affidavits have been turned over to TBI, which is also investigating.  The SCEC was correct when it stated that this error was “unacceptable”.  Infringement on a person’s right to vote is not a minor matter; it is illegal. Candidate inspection teams have thus far been denied sufficient data or documentation to even verify that that SCEC used the May 2010 early voter database rather than a larger early voter database which would have affected more voters, as some voter statements would indicate. The error itself was not corrected on Election Day, since SCEC allegedly advising their poll workers how to handle the issue, is not the same as not having had the issue. Voters were told they had already voted, and the voters’ reluctance to try to vote, after being told that they already cast a vote in the General Election was undoubtedly magnified by the arrest of two individuals in July 2010, who were charged with voting twice in the 2006 election.  The media publicized these arrests throughout Shelby County, and specifically included quotes from members of the SCEC.  This public decision to prosecute immediately prior to the election, after a lapse of four years, unquestionably had a chilling effect on voters that was magnified by the use of the incorrect voter file.

The lawsuit requests that the Court immediately restrain SCEC from destroying, erasing or disposing of any voter information or data from the August election, seize all election paraphernalia, and that an exact copy of all computer data and hard drives be preserved for examination by the Court.  It further requests that the actions of the SCEC for the November election be monitored. 

Regina Morrison Newman

1 comment:

manicsquirrel said...

Aside from all the other issues mentioned, my biggest concern was this phrase, "MDB tables".

As a software developer, that one phrase jumped out at me. In my circle, when "mdb" is mentioned in reference to a database it means, "Microsoft Database". However, their is only one Microsoft database that uses the MDB format, "Jet" also known as Microsoft Access.

That our government would purchase a voting machine that stored data in a Jet database is very scary. They are known for so many problems. Professional developers would have used an SQL Compact database, SQLLite, MySQL, or dozens of other professional and/or robust databases that can be trusted. No professional developer will use Jet for something like this.

Knowing this, I would think that ALL results are suspect.