Jun 28 2014

Giving Process its Due

Posted by Steve Ross in corruption, lies, media, Policy, Shelby County, shenanigans

Shelby County Commission

Shelby County Commission

The crazy clown car show that has become the Shelby County Commission rolls on…but at least it may hold off until after the fourth.

Of course, the troubles are well known. Now at least two members of the Commission are under scrutiny for not living in their districts: Henri Brooks and Justin Ford.

Oh to be a fly on the wall at MLGW this week. I suspect they got a lot of $175 deposits from area politicians who have made a home outside of the area they represent.

But my purpose is not to throw out allegations, or anything of the sort (I’m not nearly the attention whore that some are…ala Thaddeus Matthews), but rather to mock the maker of the original accusation, the target of the accusation, the so called “conclusive” investigation, and the County Commission for making a mockery of itself.

Terry Roland Loves Checkers

Its too bad for Terry Roland, we live in a chess world. The guy plays checkers pretty well. I’m sure he has all the strategies to get that last checker cornered in such a way that he can go in for the kill.

But Roland hasn’t been as successful in the real world of politics where chess reigns. Sure, he’s garnered a lot of media attention, but most of it, in the end is just the fruitless flailing of a guy who quite frankly is more about attention than effectiveness.

Terry set off this chain of events, and in one way I’m glad, because this has been known a problem for some time, though not necessarily in this instance (that remains to be seen). But in another way, like checkers vs. chess, he forgot that the queen can “move” anywhere on the “board”, and the absence of a queen in one place doesn’t mean the queen isn’t still on the board.

Marcy Ingram and Mishandled Investigation

In the letter to Commission Chairman James Harvey, Ingram provides evidence that Brooks does not live at the location listed on her disclosures, and offers one eyewitness account that she frequently visits her daughter and grandchildren in Cordova (which is what grandparents do, by the way) and may have established MLGW service at that Cordova address (which is also something a parent might do if their child is in financial distress).

Unfortunately, Ingram does not establish anything other than the fact that Brooks does not live at the address on Crump, which is problematic. There are literally thousands of other addresses in District 2 that Brooks could live at. Merely proving she no longer lives at one of them does not prove she doesn’t live at another.

In fact, the lack of evidence establishing that Brooks lives outside District 2 (rather than just not at the Crump address) means that Ingram’s conclusion that Brooks lives outside the district is a huge leap in logic, not to mention other things.

In essence, Ingram sets up a “guilty until proven innocent” scenario in her letter…a flaw that Brooks was ready to exploit.

Defining Residency

I wasn’t at the County Commission meeting on Wednesday, but coverage from the event show Brooks sitting next to Walter Bailey looking like the cat that ate the canary. And despite her counsel getting the address wrong, Brooks did exactly what you would expect her to do in the face of a faulty report by the County Attorney…she offered up another address in District 2 as her residence.

The media guffawed at the new assertion, while failing…as I did initially, to note that Ingram’s report only established where Brooks does not live…rather than affirmative proof that she DOES indeed live outside the district.

Because Ingram never affirmatively proved where Brooks lives, she also hasn’t proved that Brooks doesn’t live in District 2.

Henri Brooks the too willing martyr

All of this could have been avoided if Henri Brooks had only provided the address on Mississippi to the County Attorney. But Brooks seems to relish being in the limelight this way.

Indeed she’s built her career on “standing up for her constituents” by launching invective at both friend and foe, while seeking to highlight an issue. Its unfortunate that she chooses this tactic, because it has made her one of the most disliked and ineffective members of the County Commission during her time in office.

Brooks doesn’t seem to understand that in order to be effective, you can’t shit on everyone around you and then claim moral superiority in the same breath. Her unwillingness to cooperate with the County Attorney’s investigation is just one example of the arrogance she demonstrates on a regular basis to the detriment of both her self, “her constituents”, and the County Commission as a body.

Indeed, she did set off an unnecessary shit show as Memphis Flyer editor Bruce VanWyngarden put it.

Yes, I still hold that she should prove her residency and end this foolishness.

But this is classic Brooks being Brooks as this CA profile put it. I’m not sure why anyone would expect anything different.

Doing Due Process

Now that there’s another Commissioner whose residency is in question, the County Commission should put in place a process by which they may remove a member who has violated the residency requirement set forth in both State Law and the County Charter.

I tend to agree with this editorial at the CA, the lack of a defined process, and the legal tests that must be met to “prove” someone to be in violation of the law, means that future efforts to enforce the residency requirement will indeed be met with both resistance, and dragged out to the point that they are moot (which is what will most likely happen in the Brooks case).

Residency questions should fall to a body outside the County Commission itself, to remove the appearance of playing politics. Perhaps the County Ethics Committee should be the one to investigate such claims, or the District Attorney (though neither necessarily mean the claims themselves, nor the investigations would be devoid of politics at its worst).

Regardless, there needs to be a real process in place rather than what is happening now, which is a half-assed attempt at best.

Failing to do something of this sort almost ensures another “shit show” such as this one…which is something the public shouldn’t have to endure again.

Conclusion

Lets give credit where credit is due…this whole misadventure getting to this point (and the future if the Ford question comes up) is the direct result of an elected official believing they don’t have a duty prove they meet the qualifications of service.

This belief is founded on something more akin to divine right rather than representative democracy, and has no place in our government on any level.

Scrutiny is the check that should help give us faith in our government. This may have been lost somewhat in an era of scrutiny for sport, which has dominated the past several years, but that doesn’t make elected officials any more immune from answering to the public, even when the question is stupid or politically motivated.

It speaks volumes about the individuals who believe they don’t have a duty to answer to such scrutiny. It says they don’t understand the fundamental nature of their relationship with the public.

It says a lot about a person who would rather allow a fight to escalate unnecessarily than choose to bat it down before it matures into a crisis. This kind of self-absorbed lack of care is all too present in our current political climate…at all levels of government.

But while Brooks’ character flaws (both real and perceived) may make it easy to dismiss her, dislike her, or hold any number of ill wishes on her political future…the simple fact remains that this process is as flawed as the witch trial in Monty Python’s The Holy Grail…which is at least as bad for our republic as Brooks’ irrational behavior, and many other completely preventable incidents she’s been a party to.

You don’t have to like her. You don’t have to support her. But until the County Attorney can prove where she lives and that her address is actually outside of District 2, the conclusion that she’s in violation of any State or County statute is not based on the fact that she doesn’t live in her district…only evidence that she doesn’t live where she previously said she does.

While the standard offered by Ingram may seem on its face to prove something, it doesn’t rise to the standard of proving a violation. Until the County Attorney can provide hard evidence that proves guilt (by proving where Brooks lives and that it is outside the district) rather than lack of innocence (which what Ingram has proved thus far), this whole charade is nothing more than a distraction initiated as a political ploy, continued by a hasty determination, fueled by a bullheaded and self-absorbed elected official, and fanned by an all too compliant and complacent media.

Jun 07 2014

Muzzled In Memphis

Posted by Steve Ross in activism, media, Memphis, Racism, Shelby County, shenanigans

I really hope this works out for both Wendi and the CA, but I’m afraid it won’t for either.

About a week after the Brooks flap, there were some folks who expressed to me they were worried she was being silenced. I don’t work for the CA so I have no knowledge one way or the other.

But I held out hope that her most recent column dealing County MWBE contracts (current policy and the impact) was a way to deal with the issue that started the mess without getting into the distraction that Brooks herself created.

Now, just days after that column, it appears on first glance that the former is true.

I do hope, as others have suggested in other forums, that this turns into a new way to report and talk about crime in the media. There’s no question the current model (bleeds it leads) not only doesn’t address the societal ills that exist, but also enables a guilty until proven innocent attitude that is contrary to our legal system, and in some way glamorizes the crimes themselves.

I don’t have much faith that this will be the case in the new era of “You can have it your way” journalism…but one can hope.

That’s the comment I left in response to this article at the Memphis Flyer regarding the reassignment of now former Metro Columnist Wendi Thomas.

The CA’s decision to reassign Thomas comes at an inconvenient time for the paper. Now, just two months out from County elections, it goes without saying that there would be a great deal to comment on as campaigns kick into high gear. But apparently that’s not on the menu for the CA.

In fact, Thomas’ most recent column probably hit too close to home for some of those candidates…and future columns might have cast doubt on some of the forthcoming endorsements from the paper’s editorial board…a body that consistently engages in false equivalence, lightweight analysis, and an inattention to detail that would lead one to believe they don’t read the very paper in which their editorials are published.

Those issues aside, Thomas’ last column served to illustrate the way local government seeks to shield itself from criticism by using the ‘rhetoric of inclusion’, while hiding persistent sins of omission in terms of published data, and offering little if any true self-examination.

County and City government does and has consistently gone out of its way to do one thing and say another on a whole host of issues, all the while shielding themselves from analysis behind a wall of cloistered data (One can’t ask for it if they don’t know its there).

This strategy isn’t remarkable in any way. It happens everywhere to one degree or another. Its an easy way to say a policy is working without having to do the heavy lifting of actually showing its achieving the intended result. It also shields those who may profit from said policy at the expense of others from being found out…which might be embarrassing or something.

And while Thomas hasn’t always used data to support her arguments, and I certainly have had differences with some of her columns…its mighty suspicious that a county where a large portion of the population is African-American women wouldn’t have a columnist who is an African-American woman…something Betsy points to here at Pith.

So, I go back to my original comment…and wish Wendi well on her new and surprising assignment. I hope she can find a way to use her new role to bring forward some of that cloistered data in a meaningful way, that will help illustrate how some really bad policy is impacting our community.

May 21 2014

The greatest compliment

Posted by Steve Ross in elections

I’m coming up on my eight year anniversary at this blog, 10th of blogging overall if you count previous platforms now defunct, and the bad old days of literally coding every single thing in html (that really sucked). I really enjoy doing this, even though the pay is bad (none) and the benefits are even worse (none).

But one of the things that keeps me going are the discussions that pop up from time to time as a result of something I’ve written. There really is no greater compliment…whether the reaction is good or bad. Someone took the time to read what I wrote, and then, even more time to respond.

I’ve had the pleasure of meeting all kinds of awesome people, on both sides of the aisle. That’s what I treasure most about blogging…the relationships that get built over time.

So it was with a great deal of pleasure that I received an open letter from Shelby County Election Commissioner Dee Nollner regarding this post on the close District 10 race (and more).

I’ve included the full text of the letter below my comments on the issues raised for you to peruse. I figure, if its good enough for all the Democratic email lists out there, its good enough to be searchable so it can be easily found in the future.

If you want to read it first, click here to skip to the bottom of the post. There’s a link down there to get you right back here.

Responses

Ms. Nollner:

Thank you for your email. I hope you’ll allow me the opportunity to respond to some of your points.

The issue at hand is whether or not I have my facts straight on a series of questions. I freely admit that as a human, I am prone to error. But I’m not sure the errors pointed out are the best ones to make your case.

Far be it for me to correct you…but I would like to respond to some of the statements you made.

For instance, I was aware that the Election Commission retains two attorneys (a Republican and a Democrat) for advice on election issues. However, there’s no question that Mr. Ryder holds more sway with the Commissioners. Mr. Ryder is very involved in election issues in his role as General Counsel for the RNC, not to mention his prior role as Special Redistricting Counsel to the GOP led TN General Assembly…a process that was held largely in secret.

It is for his body of work both with the Election Commission, and in other places, not his partisan bent or his ability as an attorney to hatch a legal opinion that I question some of his advice the Commission. It is curious that Mr. Ryders recommendations consistently meet the mere letter of the law rather than seek to ease the unease that surrounds the Election Commission…unease which you apparently dispute in your 5th point. I’ll get to that later.

Perhaps Mr. Ryder only believes it is his place to advise on legal matters. But I know Mr. Ryder to be an intelligent man, who is capable of expressing many perspectives on a single issue. Certainly additional insight could be offered if asked for.

Statements 2 & 3 - I agree that no challenge can be made until the election is certified. I never said one way or the other. I merely reported what transpired at a meeting…just like Jackson Baker, who was sitting right next to me.

Its not until later that I get into my opinion on the matter, which in no place did I say there could be a challenge before certification. I merely said the Election Commission should either 1) Publish a schedule of when documents would be available, or 2) Just make them available noting they are preliminary…just like the results in the Commercial Appeal.

Statement 4 – Having spent literally hundreds of hours dissecting the horribly organized SOVC reports for every election since 2006 (which, unquestionably is the worst) for analysis, I am quite aware that absentee ballots and election day ballots aren’t mixed. I never said they were. In fact, it would mess up most of what I wish to analyze if they were mixed. I only said that it is possible some absentee ballots received on election day had not been counted due to human error.

Statement 5 - This one is my favorite. If you’re unaware, or have perhaps forgotten about the past problems at the Election Commission, let me give you a quick refresher.

3000 voters received the wrong ballot in 2012
In that same election, two contests were overturned by a judge, here, and here.
Which led the newspaper of record to as why the Election Commission wasn’t better prepared, which seems like a fair question.
All of this led to the suspension of Elections Administrator Richard Holden, which some believe was too light a punishment.
This was followed by another critical audit of the Election Commission by the Shelby County Government, and eventually a no confidence vote led by a Republican County Commissioner…who you scolded for attacking another Republican…and questioned the basis (which is chronicled above) for the No Confidence vote. The City Council did it too.

In short, you would have to live on a completely different world to believe that there is no chronicle of failures at the Election Commission. Furthermore, the absence of problems in subsequent elections is not “praise worthy”, as I note in the post, because doing exactly what you’re supposed to do is what you’re supposed to do. Doing more than you’re supposed to do is praise-worthy, but that isn’t happening.

In fact, the Election Commission isn’t even doing the bare minimum. Your online meeting notices are behind, as are the available agendas, its interesting to note there is no posted agenda for tonight’s meeting. And the meeting audio link only lists audio from October of 2013.

Statement 7 - I have never once faulted poll workers for anything. I have no idea why you brought this up or them into it. I respect their service, and hope to one day be able to serve in that capacity as well.

I’m not sure what the point of this is, other than to use these innocents as human shields to deflect criticism…which is truly bad form.

Ms. Nollner, I’m happy to help distribute “facts” as you ask. I have, over the course of my time writing here in Memphis, always done so to the best of my ability. The “facts” you assert that I have misstated are not misstatements, except to your perspective. We can agree to disagree, but I will not back down on criticism when criticism is due.

Process is very important to me. Process is the means by which the public can observe what the various organs of government are doing. Violations, real or perceived of process will be met with extreme prejudice…regardless of who commits it.

Ask the State and Local Democratic parties if I have ever withheld criticism for their lack of transparent process. Ask my friends who serve in elective or appointed positions if I have ever held fire on the boards they serve on. I am very consistent on this point.

So when the information available is unnecessarily vague, difficult to navigate, or filled with civic sins of omission, I will speak up. If you don’t appreciate that, so be it. But I will not be deterred.

If you are truly interested in the “facts” getting out to the public, your organization, the Shelby County Election Commission will have to choose to do more than the bare minimum.

As it stands, the average citizen has no chance of knowing what in the world is going on at the Election Commission unless they have also looked at the TN Secretary of State’s election page or dared to delve into the TCA, which is more than unwieldy.

The information the Election Commission puts on its website is consistently out of date, and difficult to navigate.

This wasn’t always the case.

Once upon a time I even praised the Commission for updating its website. Unfortunately, those strides have not been maintained.

I’ve written more than one blueprint to correct some of the problems of information dissemination at the Election Commission. I even served on an election reform board with Commissioners Stamson and Lester…that included much of this blueprint in its final recommendations.

This is something I care deeply about…not a political football to be flung around when its convenient.

So let’s make a deal rather than fling invective at each other in a truly pointless fashion.

I know the Commission is short on staff, so let me take this opportunity to offer my services to make the Election Commission website more navigable, on a volunteer basis (20 hours to start).

I have 20 years of experience with web development, publishing platforms, and audio and video editing/streaming. I feel confident that I can come up with a plan and present it to the Commission for your approval, to make the site more navigable under the current content management structure and a strategy to help keep content up to date.

It seems clear that the Commission doesn’t have the resources to do this, so let me help. Maybe I’ll get some additional perspective on the challenges facing the Commission…which could work to the organization’s benefit.

If you really want me to be involved in distributing “facts”, let me help the Election Commission do that which you apparently are unable to do yourself.

I would be happy, and honored to serve.

Sincerely,

Steve Ross

P.S. If you would like to contact me about this offer, please go here and fill out the form. That goes straight to my email. I don’t publish my email address, or anyone else’s for security purposes.


Full Text of the open letter from
Shelby County Election Commissioner Dee Nollner

Mr. Ross, your blog regarding the Jones-Milton election brings to mind that old saying “a little knowledge can be a dangerous thing”. Misinformation harms everyone and deprives the public of facts they need to make an intelligent decision.
1. The SCEC has two attorneys, Monice Hagler (D) and John Ryder (R) they concurred regarding the TCA law applicable to this situation — TN State Party Primary Board is the authority for a primary challenge.
2. Clearly no challenge can be made until a decision has been made – two separate auditors (an R and a D) verify every item before submitting the audit for certification.
3. After they have audited the information it will be available for review.
4. Absentee ballots are not mixed with Election Day voting.
5. Well chronicled is defined by the chronicler!
6. At the conclusion of precinct voting, a tabulation is run for all the machines in that precinct – 3 identical copies are printed, one copy is posted on the wall of that precinct and the other two copies are packed separately and delivered to the SCEC that evening for auditing purposes.
7. Approx. 1,400 of your friends and neighbors answer the call to be election workers so the other 531,600 registered voters have the privilege of voting. Some of your friends and neighbors are more capable than others. Election workers are assisted by the 14-member staff. Our temp workers do a remarkable job and we are grateful they are willing to work the 13+hour Election Day. Understandably, some make mistakes but our system is set up to identify and address those errors in an orderly manner through audit.
8. I assure you that the SCEC goes by the law. Will you please help convey facts? I am happy to try to answer questions anytime.

Sincerely,
Dee Nollner

Click here to return to my responses.

May 20 2014

Outsourcing Substitutes…#sigh #scsk12 #budget


Saving money is one thing,
but the math doesn’t even work on this deal.

I think we need to call in the subs for some of these members.

I think we need to call in
the subs for some of these members.

Tonight the Shelby County School Board is going to consider a proposal to use Kelly staffing services to place substitutes for the district in the upcoming year.

According to this article at the Commercial Appeal, the district doesn’t have the in house resources to fill the 800 – 1000 teacher and teacher aide absences that happen each day. The district says they’re operating at 80%, which means classrooms could be teacherless (which we all agree is bad). So they propose to do this deal with Kelly Staffing, so they can use their existing staffing model to get the subs to the schools at a higher assignment rate.

Reading

Now I see both sides of this argument. Its a liability for the district to have classrooms without teachers (or subs). On the other side, using a temp agency makes it sound like any ole Joe Blow will be able to go in and play “teacher” for the day.

Well, that’s not how its gonna work…in theory.

Current subs will be grandfathered in, and Kelly will use its massive resources to get other folks to fill in when they need them.

This all sounds good in theory, but I can’t help but wonder what happens when it doesn’t work, or some guy on the sex offender registry gets assigned to a school (which would be a catastrophe of epic proportions).

Will Kelly be required to get certified teachers? Better yet: What will the qualifications be to become a sub in the Shelby County Schools? Heck, what are they now? (Here’s the answer)

Writing

Here are the top two things the district expects of Kelly:

1. On average, SCS experiences approximately 800-1,000 teacher/teacher assistant absences/day; Due to staff capacity issues, SCS HR has only been able to maintain a fill rate of about 80-85% (there are only two people on staff who are assigned to substitute management, and who also have other duties), leaving dozens of classrooms empty on any given day. Our recommended vendor has an average fill rate nationally of 98% and locally (surrounding districts) of 100%
2. Next year the district will be responsible for providing employer paid health care for employees working, on average, above 30 hours per week. We estimate this would add 200 employees to the district’s health insurance plan – estimated cost is being researched and will be provided in Board presentation

Subs in the Kelly system will be able to buy into their health insurance…assuming they keep their hours above 30/week.

I get being all cost conscious, but I’m still not comfortable with the idea that people are these expendable things that can be shuffled around over a couple percentage points of your budget. I know…this is the world Reagan built for us, but that doesn’t mean I have to like it.

Arithmetic

My biggest problem with this is the top number…$11,000,000.

Let’s do some simple math…but first, lets look at what subs get paid:

Fewer than 20 consecutive days $128.95/per day
Certified Substitute Teacher (after working 20 consecutive day in the same assignment and has a valid Tennessee Teaching license in the subject area in which he/she is subbing) $214.35/per day
Assistants $13.70/per hour

Now, lets do some math here…

# Absent Cost Per Day Cost Per Year
800 Teachers $103,160 $18,568,800
800 Assistants $65,760 $11,836,800
400 Teachers/400 Assistants $84,460 $15,202,800
200 Teachers/600 Assistants $75,110 $13,519,800

There is no way to get to $11m…unless you’re not really having to place 800 subs a day.

Which begs the question…how many are you really having to place a day?

According to next year’s school budget, there will be 7,191 teachers and 1,395 teacher’s aides (p.20) or about 8,600 folks who would fall under the ‘needs a sub’ category (not sure if guidance counselors, librarians, etc. fall under that category, but I don’t think so).

For the district to have to fill 800-1000 subs/day, between 9.3% and 11.6% of next year’s teacher population would have to be out on EVERY SINGLE DAY OF THE SCHOOL YEAR.

Now, when there’s a flu or something like that going around, I get it. Maybe it peaks at 1000. But 1000 on a daily basis? Seriously?

I find that incredibly hard to believe.

More Math

Here’s another thing. Last year, the district says they budgeted $11,517,482 for substitutes. Last year there were a whole lot more teachers (because every school in the county was in the district). This year, the budget calls for $8,436,504 for substitutes (p.89).

But we’re gonna pay $11m to get someone else to do the heavy lifting and get around paying health insurance?

Is that what I’m to understand?

We’re going to pay over $2.5m more for a private company to handle our subs so we won’t have to hassle with assigning them or pay health insurance.

That’s what I’m reading into this whole thing.

In the process, you’re going to make an already difficult job even less attractive (the few who actually work every day a year (and its gotta be a few) probably qualify for ACA subsidies…if they aren’t already covered).

The most a sub could make is just under $37k/year. That’s assuming they work every day, which knowing some subs I can tell you, they don’t.

But I know, I know, we gotta make sure people that don’t send their kids to public schools don’t feel double taxed by their discretionary spending on private schools!!!

SIDEBAR: yes, some of them actually have the gall to think they’re being double taxed for paying private school tuition…when they’d do it no matter how good public schools are because its just as much about what the Jones’ down the street are doing (ie. status) as education.

Conclusion

Look, I don’t have a problem with fiscal restraint. I understand that we can’t throw money at every project in the public schools. But seriously people…this crap has gone way over the top.

I also understand that the schools are treated like society’s social workers…tasked with fixing all the things we, as a society, have screwed up, while at the same time being society’s whipping boy for not getting it done on a budget.

Its asinine.

But that’s what we expect…cure poverty, reduce crime, end teen pregnancy (without mentioning how it happens), and for God’s sake, bring up our low graduation rate/college degree attainment…and do it for nothing, because we’re just that damn self-absorbed to believe we can have it all and pay nothing for it.

Teachers, look out. The way things are going Kelly will be your new boss next year. Your union’s already been busted by the State Legislature…don’t think this school board won’t do it to you as well…and with a grin that says “fiscal responsibility”.

And while you’re at it… you better keep that performance up, lest someone decide you just aren’t getting it done cheap enough for their bottom lines.

Because that’s where we’re headed…and folks, it ain’t pretty…unless you keep your rich uncle on your side…which I just didn’t do.

#FAIL

May 18 2014

To recount or not? and a whole lot more

Posted by Steve Ross in elections

Update:Dist. 10 candidate Martavius Jones sent the following after I published this post:

Hello Steve, I just wanted to share with you that my calculations included the absentee and early voting numbers provided by the Shelby County Election Commission. I received 937 votes in early voting and Mr. Milton received 917.


The time may seem right, but is the issue ripe?

Martavius Jones speaking to the Shelby County Democratic Primary Board

Martavius Jones speaking to the Shelby County Democratic Primary Board

It was the closest election of the May 6th Primary. District 10, three candidates, two within 26 votes of each other.

The results, as reported by the Commercial Appeal (Early Voting totals, Election Day Totals, and Combined Totals) show a win for Milton, by a narrow margin. What was expected was a recount by the Election Commission…but that process may not be as automatic as one might expect. And so, Candidate Jones asked the County Democratic Primary Board to intervene on his behalf. What followed was an hour long discussion that brought up long-standing complaints and concerns about transparency and process at the Election Commission, rather than the actual issue brought before the board.

The argument for a recount

Many in the room were surprised to hear that automatic recounts aren’t automatic when it comes to party primaries in Tennessee.

There was a common belief that a difference of .5% between the top two candidates would automatically bring forth a recount. But this is apparently not true in a party primary. Here’s the applicable section of state law:

From Tenn. Code Ann. § 2-17-117:Circumstances justifying recount — Determining procedure for recount.

(a) Any court, primary board, legislative body, or tribunal having jurisdiction of an election contest pursuant to this chapter may order a recount of the ballots under any of the following circumstances:

(1) A tie vote;

(2) An indication of fraud if the number of votes affected would be sufficient to change the result of the election;

(3) A malfunction of a voting machine or tabulator if the number of votes affected would be sufficient to change the result of the election; or

(4) In any other instance the court or body with jurisdiction of a contested election finds that a recount is warranted.

(b) Any recount ordered by this section shall be a complete recount of all ballots cast in such election.

(c) The court or body with jurisdiction of a contested election shall determine if the recount shall be conducted by hand or with automated tabulators.

Jones produced evidence that the counts as reported in the Commercial Appeal did not jive with the counts from the election machines themselves. By Jones’ reckoning, the outcome of the election resulted in a tie, which would fall under the first circumstance for a recount.

There were several questions for Jones, including a discussion of provisional ballots. But one that didn’t come us was that of absentee ballots that might have come in to the Election Commission on the day of the election, and counted with those election day totals. To be sure, I have no knowledge one way or the other if this was the case…it just seems to be a potential flaw in Jones’ argument.

The Response

Milton…represented by his attorney, responded that be too expected the Election Commission to provide a fair count, and that if there was any mistake on the part of the Election Commission, that it be rectified (throughout the proceedings, the repeated foibles of the Election Commission were mentioned as a rationale for not trusting the preliminary results released to the media).

Milton’s camp cited another section of law:

From Tenn. Code Ann. § 2-17-105Time for filing complaint.

The complaint contesting an election under § 2-17-101 shall be filed within five (5) days after certification of the election.

and

Tenn. Code Ann. § 2-17-104 - Contest of primary election.

(a) Any candidate may contest the primary election of the candidate’s party for the office for which that person was a candidate.

(b) To institute a contest, the candidate shall, within five (5) days after the certification of results by the county election commission, file a written notice of contest with the state primary board of the candidate’s party and with all other candidates who might be adversely affected by the contest. In the notice the candidate shall state fully the grounds of the contest.

(c) The state primary board shall hear and determine the contest and make the disposition of the contest which justice and fairness require, including setting aside the election if necessary.

HISTORY: Acts 1972, ch. 740, § 1; T.C.A., § 2-1704.

Milton’s attorney argued that because no certification had been made, any effort to force a recount or challenge of the election before certification was going to be batted down by the Election Commission’s attorney, John Ryder.

Discussion Strays from the Recount

As counsel for Milton was peppered with questions, most of which seemed to lead not to the question of whether or not the issue of contesting the election (or ordering a recount) was ripe, but rather, the longstanding lack of transparency with the election commission, particularly under the current regime, and problems executing the fundamental job of the Commission…providing the correct ballot to voters, and counting.

As Milton’s counsel stood there, awkwardly trying to respond to hypotheticals, board member Jay Bailey offered a resolution that demands documents pertaining to the outcome of the May 6th election. A demand that will most likely be ignored due to the lack of a certified count approved by the Commission.

At issue here is the question, “Are preliminary results actually results, or the Election Commission’s “best estimation” of results based on the information available on the night of the election versus the actual results to be approved?” The certified results have the benefit of double or triple checking and possibly the addition of approved provisional ballots, etc. to ensure accuracy. The election night totals may not.

What all this boils down to is:

1. a series of inconsistencies in the application of open records as they relate to the time that precinct level results are made available (immediately after the election or only after certification),

2. the common understanding of the very word certification versus the legalese definition as set forth in the TCA.

Certification…in the common usage signifies finality. But in the usage set forth in the TCA, it seems to indicate that the finality is contingent (for 5 days at least) upon any potential election contest or litigation.

And if you think about it, that makes sense. It is already confusing enough to have a set of numbers out there election night that may or may not jive with the actual certified totals (for whatever reason), but because those totals are not “bona fide”, embarking on litigation based on them could spark all sorts of unnecessary legal processes.

By waiting for the vote to be certified before allowing any contest of the election, it ensures the contest is being made based on a common set of numbers, that include any ballots that might have been incorrectly disqualified or other problems that the bustle of election night might have created.

Does that, then, discount the concerns of Jones, the Primary Board, and general observers all around?

Absolutely not.

In fact, if anything it seems the Election Commission should be willing to part with those preliminary results on a precinct by precinct basis, and then if the count is different on certification day, list the reasons and rationale for those differences.

But because that information is not forthcoming, there is room for suspicion…which is totally justified.

Building vs. Breaking Trust

What the Election Commission has never understood is the difference between their legal obligation, and their civic duty to give people no reason to doubt them.

Because of the well chronicled manner in which the Elections Administrator has, in the past: addressed concerns bruskly, or completely blowing them off, showed a consistent pattern of questions raised in election after election (some of which could have been answered before they became legal actions if only the Election Commission was more forthcoming), and continued to support the lack of any verifiable paper trail beyond some tapes that get printed out with no way to prove their accuracy. For these reasons and more, people just don’t trust them.

And why should they?

The Election Commission has a history of problems.

They seem to want to assert that because they have had an election or two without incident that they deserve kudos. But the truth is, having an election without any major incident is the most basic element of their job. I don’t get kudos where I work for fulfilling my most basic responsibilities, and neither should anyone else.

If the Election Commission wants kudos, they should be working to go well above and beyond whats legally required of them. I’ve been very consistent on this point.

Address the realities

There was no question on election night that there would be questions raised about the District 10 race. A proactive Commission would have put the necessary documents aside so they could be immediately inspected at the Election Commission offices the very next day, along with all the things the candidates needed to consider going forward. Instead, it seems they gave the interested parties the run-around trying to fend them off with legalese.

No trust being built there!

A proactive Commission would set forth easy to find procedures for candidates and interested parties to obtain this information, not act suspicious, weird, or combative when they want to photograph or photocopy those documents (which is what happened in 2010).

Policies and procedures seem to be at the whim of counsel.

Conclusion

This all seems fairly simple to me, but it is something the Commission seems to just not comprehend…and part of that goes to the legal opinions delivered by Ryder, which seek to meet only the letter of the law (which is what lawyers are supposed to do) followed by the determination of the Administrator to barely graze the edge of what the law requires…which is just shitty PR and service to be quite honest with you.

You have to be willing to go above and beyond. That doesn’t mean you put your legal position in danger. It means you have set forth specific things to make the process both be transparent according to the law, and feel transparent to those who are not lawyers.

Furthermore, parting with copies of public documents (election machine tapes) does not, in any way damage your legal position, UNLESS you expect those tapes to somehow change over time, which again really doesn’t make any sense if the machines are to be trusted to the level the Commission asserts.

That may seem like a tough row to hoe, but it really isn’t. Its a simple Word document (or set of them) that lays out the rules and the consistency to make that document seem damn near biblical.

That’s it.

So will the Election Commission comply with the forthcoming demand that they produce the documents requested? If and when they do, it will most likely be after certification…with no comment explaining why, and not so much as a pat on the back…which will only serve to continue fanning the flames of distrust…which at this point, seems to be exactly what counsel for the Election Commission wants.