We respectfully urge you to vote No on House Bill 614, which seeks to delay implementation of the Tennessee Voter Confidence Act and fatally weaken its provision for manual post-election audits of electronic vote tallies. HB 614 is on the Senate’s calendar for Tuesday January 12, 2010. Rejection of the bill is warranted based on the determination of the Chancery Court regarding the TVCA and its requirements for federal certification of voting systems, and on the State’s still un-met need for verifiable ballots and hand-counted audits of electronic vote tallies.
In November 2009, the Chancery Court of Davidson County, after receiving information from voting technology experts, corrected the assumption that the TVCA required new voting systems to be certified by the United States Election Assistance Commission (the EAC) to the 2005 version of the Federal voluntary voting system guidelines. The Court issued a Conclusion of Law noting the TVCA allows voting systems to be certified by the EAC to either the 2002 voting system standards or the 2005 guidelines, and ordered the State Elections Division to proceed with implementation without delay.
The TVCA requires voting systems to be certified by the EAC to the “applicable voluntary voting system guidelines,” and section 222(e) of the federal Help America Vote Act makes clear that the 2002 standards are deemed “the first set of voluntary voting system guidelines.” Only in 2009 did the EAC certify any voting systems, two to the 2002 standards, and one to the VVSG 2005. There are now two precinct-based optical scan voting systems EAC-certified to the 2002 standards.[1. http://www.eac.gov/program-areas/voting-systems/certification/federal-certification/eac-certified-voting-systems/]
That it is legal for Tennessee to purchase voting systems federally certified to the 2002 standards is now established beyond question. The Assembly should also be satisfied that such a course of action is the wiser for Tennessee in 2010.
Dr. Douglas Jones, Associate Professor of Computer Science at the University of Iowa and one of the world’s top experts on voting technology, testified to the Chancery Court on this topic. Dr. Jones was recently named to the EAC’s Technical Guidelines Development Committee, which is charged with developing new versions of the federal guidelines. In his affidavit, Dr. Jones strongly recommends that Tennessee proceed with implementation of precinct-based optical scan voting in 2010. Dr. Jones’s testimony was unrefuted and was relied upon heavily by the court. He observes:
• By 2012, it is likely that an entirely new version of the federal guidelines will be in effect. Waiting for the very latest voting systems to become available creates a perpetual cycle of delay; as Professor Jones writes, “it will always be possible to argue for delaying purchase until better equipment is available that is certified to the newest standards” (page 5)
• Lacking a reliable hard-copy record of voter intent, the direct-recording electronic voting systems now used in Tennessee cannot prove their accuracy (page 9). Note that this concern, cited by TACIR, was the major reason for the public’s strong support of the Senate’s unanimous passage of the TVCA. The facts have not changed; Tennessee’s DREs are still unreliable, and the public still wants the TVCA implemented.
• A number of voting systems tested to the 2002 standards can be upgraded with a software update so that they comply with the 2005 federal guidelines. The State could specify in its purchase agreement that any optical scanners purchased for use in 2010 be upgradable at a later time (page 6).
Other States moved immediately to acquire equipment that provides verifiable ballots, without waiting for supposedly more advanced equipment before abandoning DREs. They purchased equipment that has been tested for accuracy, and that can prove its accuracy with independent paper records of every vote cast. In 2008-09, over 50 counties in Kentucky adopted paper ballot voting systems tested to earlier Federal standards,[2. “State Requirements and the Federal Voting System Testing and Certification Program.” http://www.eac.gov/program-areas/votingsystems/
docs/state-requirements-and-the-federal-testing-and-certification-program-oct.doc/attachment_download/file] at the urging of the Secretary of State, who stressed the importance of a voter-verified paper record.[3. “Voting Goes Digital in Kentucky.” http://www.sos.ky.gov/secdesk/mediacenter/coverage/article140.htm] In 2008, Iowa adopted optical scan voting statewide; all Iowa equipment
is tested to 2002 standards.[4. Id.] Following the 2008 election, the Secretary of State noted the wisdom of the change, as eight legislative districts had recounts.[5. “Secretary of State Praises New Voting Machines.” http://www.radioiowa.com/2008/12/16/secretary-of-state-praises-new-votingmachines/] North Carolina, following an embarrassing loss of thousands of votes cast on electronic voting machines in 2004, adopted new voting systems with voter-verifiable paper records just as the EAC was adopting 2005 guidelines. They deployed paper-based systems in May 2006[6. http://www.eac.gov/program-areas/voting-systems/voluntary-voting-system-guidelines/2005-vvsg] and require compliance with 2002 standards.[7. “State Requirements,” as cited above.]
Voting equipment must count ballots accurately, and provide a way to prove that accuracy. Optical scan voting systems are shown to be accurate when programmed correctly in audit after audit, recount after recount. By contrast, as TACIR noted, paperless touch screens cannot be recounted or audited effectively.[8. “Trust But Verify,” the 2007 TACIR Staff Report: http://www.state.tn.us/tacir/PDF_FILES/Other_Issues/trustbutverify_phase1.pdf] Dr. Jones concluded in his affidavit: “voters using precinct-count optical mark-sense voting systems have a significantly higher likelihood of having their votes counted and counted as intended than voters using current touch-screen direct-recording electronic voting machines” (p. 10).
The ongoing costs of optical scan systems are often lower than for direct-recording electronic voting systems, as has been shown by studies done in other States. Hamilton and Pickett counties, which both use optical scan systems, have reasonable costs, despite a State requirement that they print enough ballots for 104% of registered voters at each election.
The need to implement the Voter Confidence Act remains as urgent as ever; the arguments for delay are not compelling. In 2010, Tennessee’s voters will soon elect the General Assembly that will draw both assembly and congressional districts for the next ten years. They deserve a provably accurate voting system in this critical election. We respectfully urge you to keep the State on course toward reliable balloting in the 2010 general election.