To recount or not? and a whole lot more

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?

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. § 2-17-105 – Time 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.