NASHVILLE, Tenn. — As advocates push nationally for states to increase voting security, Tennessee election officials who are trying to win approval for voting machines that produce a paper record have hit a roadblock.
A proposal by the state Election Commission for all future voting machines to be capable of producing some sort of paper trail was halted when a surprise legal opinion emerged from the GOP-controlled Legislature’s legal team. The opinion, written on behalf of state Republican Sen. Ken Yager, contests the commission’s process on how it certifies voting machines.
Fallout from the opinion has once again tempered attempts to make sweeping changes to Tennessee’s voting systems, which Republican leaders have resisted: They point not only to the importance of allowing local experts decide what is best but also to the significant expense of replacing voting machines statewide.
“When it comes to elections, we need to do it the right way or we’ll be buying ourselves a lot of headaches,” Yager said in a Friday phone interview.
Democrats have voiced concerns about the lack of paper trail requirements, as have cybersecurity experts, who have criticized Tennessee as one of 12 states that does not require electronic voting machines to print out hand-marked paper ballots. That can leave election results vulnerable to untraceable manipulation by hackers.
Fears of interference in U.S. elections have escalated since the last presidential election – and particularly since September 2017, when Homeland Security officials notified election officials in 21 states that their systems had been targeted by Russians. Authorities have since said they believe all states were targeted to varying degrees.
Concern over states with no paper trail requirements has also escalated with the recent failure by Congress to pass a measure to bolster election security systems, leaving state and local officials to handle election security themselves in 2020.
Tennessee doesn’t specify what kind of voting equipment local governments must use, resulting in just a handful of counties that give voters a paper printout of their ballot so they can check its accuracy.
The opinion – unveiled publicly in a letter presented at the commission’s July 22 meeting in Nashville – hinged on a technical requirement and suggested that the process being followed all along for certification of voting machines may have been incorrect – leaving Commissioner Tom Wheeler, a supporter of paper ballots, exasperated.
According to the opinion, setting the “minimum criteria” for certifying voting machines in Tennessee must be done through the state’s administrative rule process — which ultimately needs legislative approval.
Currently, the voting machine certification process is done through a policy set by the commission — which some election officials worried has sweeping implications for upcoming vote counts. It’s a process that has been used for decades.
“If (the opinion) is correct, there are no election machines in Tennessee that are valid and can’t be used next election,” Wheeler said at the meeting.
State Election Coordinator Mark Goins said he didn’t think machines currently installed throughout the state would be disqualified from use, but he conceded the state might have been wrongly certifying voting machines previously.
“There’s a chance for years it may have been done inappropriately,” Goins said.
Commissioner Judy Blackburn, who has been on the panel since 2009, said Tennessee has never had issues with its current voting machines and credited dedicated employees for making that happen.
The commission eventually tabled the paper trail requirement, maintaining the state’s position that counties are free to make their own decisions on what voting machines to buy.
While a growing number of local election leaders lean toward machines that produce a paper record, it’s not a universal sentiment. For example, election officials in Blount County are preparing to once again purchase digital-only machines ahead of the 2020 election.
Tennessee Secretary of State Tre Hargett, a Republican, has opposed federal legislation to mandate the use of machines that leave a paper trail. He says the marketplace is moving toward those types of machines, but says local governments should be free to pick the systems they want.
Tennessee has faced requests for more security reviews of its voting system — as well as issues with voter registration, applications, and ballot mistakes.
Attorney Carol Chumney, who represents a group of voters in the 2018 election, last year sued elections officials for Shelby County and the state to try to force a switch to a handwritten ballot and a voter-verifiable paper trial, among other security changes. A judge declined to order the switch before the November election, but the case is ongoing.