MEMPHIS, Tenn. — The Shelby County Election Commission wants new machines for voters to use by the local August elections and the national elections in November. They have a budget of around $10 million to buy the machines.
However, critics have questioned the process for selecting a bid, calling it secretive.
A group of local and national advocates and stakeholders came together Tuesday night in a virtual meeting to discuss the issue in a forum called “Lifting The Veil On Shelby County Elections.” They want to see and examine the bids for new voting machines being considered by the election commission.
However, officials so far have not released the information and promised to speak in code at a meeting about it Thursday evening.
“It’s not that their hands are tied, it’s that they don’t want to be transparent,” said Steve Mulroy, a University of Memphis law professor and former federal prosecutor.
The Shelby County Election Commission put out a “Request for Proposals” for the new voting machines in December. They got bids back in January. But so far, only a select few have been able to review them, including Election Commissioner Brent Taylor.
“We’re allowed access to the proposals, which I did review, for 24 hours. We had to return those because they can’t be released to the public,” Taylor said.
Taylor said Elections Administrator Linda Phillips has done most of the work of looking through the bids. But that’s not good enough for people like Mulroy, who want to have input in the process.
“What they need to do today is release the RFP information: the bids, the alternatives from the different vendors, what the prices and features are,” Mulroy said.
However, in that regard, election commission officials say their hands are tied. Their lawyers cited state law exemptions to the open records act, which state in part: “Proposals received by a local government… shall not be open for public inspection until the intent to award the contract is announced.”
Deborah Fisher, executive director of the the Tennessee Coalition for Open Government, held a different interpretation of the law.
“I don’t think that’s correct,” she said. “The law says the proposals received are confidential until an intent to award is announced. It doesn’t say who has to announce.”
Fisher said any official, like Elections Administrator Linda Phillips, could’ve announced the commission’s preferred bid and triggered the release to the public. In fact, she said that’s how other counties in Tennessee had handled the same process recently.
WREG asked Phillips if they considered this path.
“I tried that, and the mayor’s office refused to make it public,” she said of Shelby County Mayor Lee Harris.
In an email to WREG, the private lawyers for the election commission said, “We looked at that possibility, but were informed by the Mayor’s office that the Intent to Award had to come from him and no details could be released until he signed the letter.”
“Public confidence in our election integrity in Shelby County is already at an all-time low. This just pushes that confidence down lower,” Mulroy said.
Bids aren’t the only reason Mulroy says that. He also discussed ethical issues; questions about officials and their connections to the bidders.
The private lawyers for the election commission work for the firm Harris Shelton, located in a downtown Memphis office building. Harris Shelton also rents office space in Nashville from a firm that does business with one of the reported bidders for the county contract.
And then in 2017, as administrator of elections, Phillips contracted with a company for which she previously worked, called Everyone Counts.
She provided WREG with paperwork showing she asked for ethics guidance before moving forward. The document showed county attorneys advised her to “disclose the former employment relationship to other evaluators.”
One county commissioner said she didn’t remember that happening, though Phillips provided another email showing she did disclose the connection to at least some county employees.
“One of the things I don’t think people understand is elections is a very small business. I know people in all of the election companies across the country,” she said. “In the modern world we live in, there are always going to be conflicts, so that’s why in elections we do everything in a bipartisan manner.”
In this case, that bipartisan body is the five-person Shelby County Election Commission, set to pick a contract for new voting machines at a meeting Thursday.
The greater body of the Shelby County Commission will still have to approve whatever they pick, so the public can still make their opinions known later. But that could delay the process even more.
“We are running out of time to have this in place for August elections, which I think is crucial because election commission has acknowledged our current machinery is over 15 years old,” Mulroy said.
Phillips doesn’t know if it will happen in time, prompting the question: How is this government process keeping the best interests of the people in focus?
WREG has contacted Mayor Lee Harris’s office regarding his decision to not let Phillips release the bids. At this time, we have not received a response.
John Ryder, attorney with Harris Shelton who represents the election commission, released this statement to WREG about his firm renting office space from one of the bidders:
“I also appreciate the need for full transparency and open dialogue regarding even the mere mention of a conflict of interest. So, let me be clear, I have no such conflict. And if I did, I am legally bound to disclose its nature to all involved. I do, however, want to address any concerns that have been raised to ensure the sanctity and respect for our election process remains high in Shelby County. It has been asked if I or others have any interest in the vendors bidding to supply the new voting machines because Harris Shelton, the law firm that I am a member, does rent some space from MNA, which has been calculated as a pro-rata share of the rent MNA pays to its landlord. As you are aware, this is a common practice among professional service companies like law firms. That payment of rent does not give me or my firm and interest in MNA, nor does it give MNA an interest in Harris Shelton. And to ensure that I provide a complete and fully transparent picture I have never discussed the purchase process with MNA or any other vendor. Beyond that, I had no participation in the bidding process under consideration. I take my ethical responsibility seriously and of course if a conflict were to arise, I am legally bound and would immediately disclose this information to all involved.“