The Tennessee Voter Confidence Act

November 30, 2009

On November 5, a Tennessee judge declined to an issue an injunction that would have forced the Secretary of State to comply with the Tennessee Voter Confidence Act passed in 2008. The act requires all 95 counties to discard electronic voting machines in favor of paper ballots. Understandably, the act has become an extremely controversial issue in Tennessee politics.

The Tennessee Voter Confidence Act (TVCA) passed nearly unanimously last year in response to growing fears over the integrity and security of electronic voting machines. Tennessee was recently rated by the organization Gathering to Save Our Democracy as one of the eight states in the nation most vulnerable to vote-counting abuse because of its reliance on computerized systems.  Currently, 93 of the 95 counties in Tennessee use some form of electronic voting machine or touch-screen system that records votes but does not produce an individual paper record of each vote.  The act requires a move to paper ballots read by optical scanners, which would allow for a paper trail and eliminate the corruption and abuse concerns associated with computerized systems. When it was first presented to the legislature, the TVCA had bipartisan support in both houses of the legislature, and was passed by an overwhelming majority.

So with such clear cut support the act, why is there so much controversy? It all stems from the implementation of the act, which as of now must be finalized in time for the 2010 elections. Issues with funding and equipment have created a movement to delay the change until the 2012 elections. The movement to delay implementation has been spearheaded primarily by Secretary of State Tre Hargett and various municipal governments in Tennessee.

The funding issue centers on the concern that local governments will have to spend millions to implement the new machines in the face of an unprecedented recession. Total statewide costs associated with the initiative have been estimated at around $25 million. However, Tennessee has been allocated over $30 million in federal funds stemming from the Help America Vote Act, which can be used to purchase the new equipment. However, Congress must approve how those funds are used, and there is no guarantee that the legislature is willing to give its implicit support to the TVCA.

Furthermore, there is also some question of what equipment is required by the legislation. That debate is over whether the statute requires equipment that meets 2002 federal standards or the most recent 2005 federal standards. This distinction may sound trivial but, in fact, machines meeting the 2005 standard do not exist yet. Hargett has claimed the law cannot be implemented because it requires 2005 machines while many around the state have suggested the machines reflecting the 2002 standards are allowed and should be purchased to expedite the change.

All this culminated last month when a lawsuit was filed by non-partisan Common Cause Tennessee, claiming that the Secretary of State Hargett should be compelled to implement the machines in time for the 2010 elections. The ruling by Davidson County Chancert Court Judge Russell Perkins gave both sides something to lean on. While Perkins refused to force Hargett to implement the act in time for the 2010 vote, he did rule that the TVCA does not require the new machines to meet the 2005 standards. This means that the state could purchase voting machines that meet the 2002 standards, and therefore fulfill the requirements of the act.

Indeed, the court ruling has done little to resolve an issue that is becoming increasingly politicized by both sides, as Tennessee has undergone a historic change in legislative control. In 2008, just months after the act passed, Republicans took control of both chambers of the state legislature for the first time since Reconstruction. Furthermore, over 30 election administrators across the state were fired after the legislature ousted long-standing Democrat Riley in favor of Republican Hargett. The change in tenor over the TVCA is most evident by the failure of legislation introduced to delay implementation until 2012. That legislation is expected to come back up for a vote early next year when the legislature reconvenes. At this point though, it appears what began as a bipartisan effort to ensure electoral integrity has now devolved into something quite the opposite.

Drew Staniewski is a student at William and Mary School of Law

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