Ten Candidates File Suit as 'Massive Improprieties, Tampering' Seen in Shelby County, TN, Election

August 27, 2010
By: 
Brad Friedman

While barreling westward across the Great Plains yesterday, I received an urgent text message from Bev Harris of the non-partisan election integrity watchdog organization BlackBoxVoting.org. She and Susan Pynchon, an election integrity advocate from Florida Fair Elections Coalition, had traveled to Shelby County (Memphis), Tennessee, following reports of massive voter disenfranchisement during the state's August 5th elections.

She and Pynchon have been in the county, on behalf of a number of the candidates affected by the apparent disaster for the last two weeks.

"Wildest election tampering yet in memphis," Harris' detailed text message read. "7 out of eight candidates black in black locations with 70 percent dems but white republican sweep."

"Ten candidates filed lawsuit today," the message continued, as she explained that over the past two weeks she and Pynchon "watched as [election officials] wheeled cartloads of computers out of the building. Thousands and thousands of votes don't add up...poll tapes in trash and much more."

"Even the candidates could not get their own results and were told they were 'not available,'" she wrote. "They certified [the elections] and STILL did not give out results until threatened by a lawyer and even then the results said 'unofficial'. There is hilarious video of repub lawyer shouting 'keep those women away from me!'"...

'2 week bank robbery in process'

Harris wrote that "after 2 weeks of legal stalling they let us see 20 percent of [the] poll tapes [the records printed out by the electronic voting machines before and after close of polls, as signed by poll workers] yesterday but after those were found to be in - uh - 'disarray' they shut down any further inspections."

"This is basically like watching a 2 week bank robbery in process," she typed.

Reports of trouble in Shelby County began to appear on the morning of the August 5th election, not long after polls had opened for the day. First described by the Memphis Flyer as "a glitch in electronic voting," reports emerged of thousands of voters being told, incorrectly, that they'd already voted.

Officials from the Shelby County Election Commission (SCEC) would soon claim that the failure was due to an incorrect voter registration database programmed into the electronic poll book system used to sign in voters at the polling place when they show up to vote.

Tempers were flaring as the breadth of the failures --- soon discovered not to be confined only to voter registration records --- began to reveal themselves as seen in this rather extraordinary August 12th report from Memphis' CBS affiliate WREG News Channel 3:

WREG's website report (which includes the video above) includes the following from reporter Mike "The Watchdog" Matthews [emphasis added]:

Lawyers for the Shelby County Democratic Party and the Elections Commission had an agreement. Independent auditors could look at the numbers on the Diebold Computer system. But there was an immediate problem. County Attorney Greg Garrick was basically saying hey, I'd love to help you, "But it's not up to us. There is an agreement between Shelby County and Diebold not to release certain information about the machines."

Tennessee election integrity advocates had thought their state would be rid of the 100% unverifiable touch-screen voting systems made by Diebold by now. (Diebold's election division is now owned by the Canadian firm Dominion Voting. Details here.) In 2008 the tenacious local citizen activists had won a hard fought victory in the state legislature to finally move Tennessee forward to hand-marked paper ballot elections. However, after the GOP took over the state house later that year (TN was the only state in the union to see a gain by Republicans in 2008), the new majority in charge quickly began looking for ways to dismantle the paper ballot bill.

When I visited an Election Commission hearing in Davidson County (Nashville) back in 2007, the then Democratic majority on the board was largely steamrolled by the two Republicans who seemed to be running the meeting. Afterward, one of them, Lynn Greer, who now serves as the commission's Chairman since his party's takeover in the state, told me, with a straight face, that "paper ballots are the greatest fraud ever perpetrated on America."

In 2008, Tennessee was one of several states where touch-screen voters had reported votes flipping before their eyes on touch-screen machines during the Presidential primary and general elections. Even the election integrity filmmakers David and Patricia Earnhardt who live in Nashville themselves, and had released their award-winning documentary Uncounted: The New Math of American Elections the year before, were not immune to their own touch-screen voting nightmares there, as The BRAD BLOG detailed in October of '08.

[FULL DISCLOSURE: I appear in the Earnhardt's Uncounted, but it's a tremendous film despite that.]

Late last year, both the new Republican Secretary of State Tre Hargett and the Republican legislature went to court to fight against the statutory move to paper ballots which was supposed to be in place by 2010 according to the law. And with the continuing court challenges and delays, the voters of the "The Volunteer State" find themselves still forced to vote on the oft-failed, never-verifiable Diebold/Dominion electronic voting system again this year.

Thousands of voters in Shelby County and the ten candidates who filed suit this week are currently paying the price for the GOP's legal obstructionism, as they will again this fall during November's mid-terms.

Ten Candidates File Suit; 'Brutal disenfranchisement, tampering'

"This is the most brutal voter disenfranchisement and election tampering case we have witnessed yet," Harris wrote at the BBV website yesterday, before posting the press release issued along with the election contest filed by ten candidates from the August 5th election.

"Problems in this election disproportionately affected Black voters. Accumulated problems uncovered so far quantify to tens of thousands of votes, in an election where just a few thousand votes separated winners from losers," BBV reports, as the prelude to the news release describing "startling" details of the alleged election failures.

The press release begins:

August 25, 2010

AUGUST CANDIDATES FORMALLY SUE DUE TO IMPROPRIETIES IN ELECTION

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 be incurably 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.

The statement goes on to charge that the election was "an embarrassment to our county and a violation of every principle on which our country was founded," and lists some remarkable allegations, including:

  • "Votes Without Voters: ... according to SCEC's own records, 6,802 more votes were cast than individuals who participated in the August 2010 election."
  • "Missing Vote Batches: Unexplained errors in vote count are reflected by the voting machines. ... twenty batches of vote uploads are no longer in the system at all ... with no record of them at this time. The missing batches potentially contain between 6,000 and 18,000 votes."
  • "Turnout Inconsistencies: 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. ... 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."

  • "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."

    [Note: See photo at top-right of this story, taken of signed poll tapes found by Harris and Pynchon in the trash. Harris notes that the photo "represents only a small item in the massive amount of evidence gathered so far" and that "Two trash bags full of signed poll tapes are currently under seal with the court." Larger version of photo here.]

  • "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."
  • "The Ghost Race: ... According to the [election database] and [Diebold GEMS [central tabulator] 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. ... 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 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."
  • "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."
  • "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..."
  • "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."
  • "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."

The press release concludes by detailing the remedy being sought from the court:

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.

See Black Box Voting for the full press release and more details in the coming days and weeks.

Moreover, as we'll be dropping off the grid this weekend for some much needed R&R until after Labor Day, I'll strongly urge you to check in with Joyce McCloy's Voting News for updates each day, as she has been indexing all of the news coverage coming out of the Shelby County mess (and elsewhere, of course) on a daily basis.