It Ain’t Over 

In one form or another, the post-election protest seems likely to continue.

There's no fat lady singing yet.

Although voting in the 2010 countywide election ended on August 5th and the Election Commission was scheduled to meet for the purpose of certifying the results August 19th, events of the intervening two weeks have made it clear that the results of the election are far from being universally accepted and may yet be formally challenged.

After a hearing in the courtroom of Chancellor Walter Evans on Monday, in which Chancery Court clerk and master Dewun R. Settle was appointed a de facto referee to resolve continuing disputes, Shelby County Democratic chairman Van Turner was asked his opinion about the then pending certification process on Thursday.

"We'll make a decision prior to then about a formal request that they not certify, after that they still have five days to contest the election, and none of this prevents us from going to federal court and pursuing any federal actions that we may deem necessary," said Turner, who, wearing his lawyer's hat, represents litigants dissatisfied with either the results or the election process itself, or both.

The two litigants of record are current county trustee Regina Morrison Newman, a Democrat who is about to lose her job when and if the election results are certified and her election opponent, Republican David Lenoir, is sworn in, and Minerva Johnican, the onetime Criminal Court clerk who was out-polled by the GOP's Kevin Key. Both Newman and Johnican trailed their opponents by fewer than 5,300 votes, which Democrats say is the number of potentially inconvenienced voters because of an Election Day voting-machine glitch.

That glitch, reputedly the result of an error by a long-term civil-service employee, though his or her identity has not yet been revealed by Election Commission authorities [UPDATE: this column was written for the Flyer's print edition, deadlining Tuesday morning; Commission IT director Dennis Boyce was identified as the employee in the Flyer Tuesday night and subsequently by the Election Commission itself], came from the fact that early-voting data from a previous election — reportedly the May countywide primaries of this year — was fed into the electronic voter roll for the August 5th election.

As a consequence of that mistake, a significant number of voters were challenged when they arrived to vote on August 5th. The exact number has not been determined, but in a series of protest meetings convened under Democratic auspices, other complaints have been raised by a variety of other alleged irregularities.

At a previous hearing in Chancellor Evans' courtroom, the litigants and representatives of the Election Commission reached voluntary agreement about the need for sharing information about the actual voting results. But disagreements arose when a group representing the litigants, joined by consultants from BlackBoxVoting, an advocacy group, arrived to download election results last Thursday at the Election Commission's Operations Center at Shelby Farms.

Monday's hearing represented an effort to get beyond the stalemate — based in part on what John Ryder, an attorney for the Election Commission, said were proprietary matters involving the Diebold Corporation, makers of the voting machines in use in the county.

Ryder expressed satisfaction in the appointment of Settle to adjudicate disputes and pointed out that a variety of audits are expected — from two local firms and the state election coordinator — and that both the Tennessee Bureau of Investigation and the U.S. Department of Justice have been called in.

Meanwhile, some of the material in dispute has been handed over, though Newman is disturbed that parts of it have been redacted. And of the voters potentially disadvantaged by the Election Day glitch, she said, "Based on our analysis of those numbers, there's a disproportionate number of African Americans and 'others' in that number."

Given that questions were raised about vote counting in the 2006 county election, in which several Democrats were narrowly defeated, questions may linger about the authenticity of this year's outcome, even after all the evidence is sifted.

Speaking to reporters on Monday, Turner hinted that the question of outright fraud was not the central issue, however. "We just want to make sure the process is fair and transparent," he said.

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