Saturday, August 14, 2010

The Post-Election Challenge for Dummies

Posted By on Sat, Aug 14, 2010 at 12:52 PM

Shep Wilbun, one of the affected Democratic candidates, examnes discarded voter data at Election Commission headquarters.
  • JB
  • Shep Wilbun, one of the affected Democratic candidates, examnes discarded voter data at Election Commission headquarters.

At this point, it is nigh on to impossible to imagine what happens next in the saga of the famous FUBAR election of August 2010.

Officials at the Election Commission are still trying to maintain, with all the inflexibility and certitude and desperate determination of single-bullet theorists, that what happened Thursday of last week was a simple minor-league glitch that inconvenienced at most a few hundred potential voters, few if any of them permanently, and was quickly corrected.

And they hold in reserve a trump card which I’m about to reveal: The perpetrator of the presumed offense — that of dumping the wrong set of early-voting data (from May of this year, allegedly) into the electronic voting book for the August 5 election — was a Democratic hire from years back, a civil servant type, as it were.

That revelation, which is just around the corner, will, the EC officials hope, have two ancillary consequences — absolving Republicans per se of any culpability in a hypothetical vote-suppression plot; and simultaneously insulating the current management from charges of inexperience and incompetence.

Meanwhile, an ad hoc confederation of Democratic activists, done-wrong candidates, consultants, conspiracy theorists, public service lobbyists, and pro bono legal helpers has descended upon the Election Commission’s places of operation determined to ferret out the secrets of this misadventure, even as the EC’s own personnel and attorneys have responded with maddening delaying tactics that may be designed to safeguard proprieties but look more like stalling or stonewalling to the seekers.

The army of the avengers has been buttressed on-site at various times by out-of-town newcomers such as Bev Harris of Seattle and Floridian Susan Pynchon, both consultants with BlackBoxVoting a consumer organization, and Mary Mancini of Nashville, the newly named head of Tennessee Citizen Action (TNCA). There has also come into being a new Facebook site entitled “I want a New Shelby County Election on Paper Ballots.”

And in the background the Tennessee Bureau of Investigation is supposedly concluding its preliminary inquiry into the election mess while the Department of Justice in Washington is presumably mulling over 9th District congressman Steve Cohen’s request for a formal federal investigation.

As the indefatigable Regina Newman, as of now still the Trustee and a plaintiff in the case, has explained via Twitter, a group including herself, Cardell Orrin, Del Gill, George Monger, Shep Wilbun, Harris, Pynchon, and ad hoc attorney David Cocke spent hours at the Election Commission’s Mullins Station Operations Center on Thursday.

This group kept trying to access the election-day files they thought they were free to inspect as a result of the compact reached earlier in the week between Shelby County Democratic chairman Van Turner and the GOP’s John Ryder, lawyer in this case for the EC.

Turner and Ryder had done their deal in the courtroom of Chancellor Walter Evans, who had seen no need to make any further ruling. Problem was: For various reasons, neither Turner nor Ryder were available for consultation at Mullins Station on Thursday afternoon. (Turner, who presided over a meeting of the local Democratic executive committee that night, would turn up later.)

So Cocke, subbing for Turner, was left to deal with Gene Gaerig, the assistant county attorney subbing for Ryder, at EC East. EC director Rich Holden was in the building but taking no part in the negotiations and mainly just staying out of the way and standing ready if needed. Also present was Dewun Settle, Chancery Court clerk and master, prepared to authorize and oversee whatever actions ended up being taken.

Gaerig, while being personally agreeable up to a point, came up pit bull-hard against any suggestion that the group of Democrats and their supporters should access the facility’s central computer or any of the stored files or voting consoles that pertained to the case.

The machines and their data were “intellectual property” and subject to a contract between the county and the Diebold Corporation, said Gaerig, and, without a release of some sort from the latter, were not to be tampered with.

Harris and Pynchon were sure this was stalling and nothing but and insisted that Diebold had long since sold its interests to a successor organization and that, in any case, only Microsoft files were at stake. No matter. The stalemate went on for hours until Cocke suggested, and got approved, a compromise whereby the plaintiffs’ group would be able to download a list of relevant files contained on the voting machines and/or the central computer.

While all of this was going on, Turner was conducting a balls-out meeting of the Democratic Executive Committee at the AFSCME/MLK Center on Beale that, impressively enough, concerned itself less with accusations that the election had been stolen and more with some serious probing into how and why it may have been lost honestly.

All of the prevalent theories — the Herenton-Cohen fizzle, turnout from the GOP gubernatorial whiz-bang, etc. — were considered, along with one or two striking new ones: e.g., that the Democrats had signally failed to engage the interest and participation of Generation X-ers.

Turner, whose conduct of the party during election season had been challenged by Commercial Appeal opinion editor Otis Sanford, got an informal vote of confidence and something of a standing-O, and those speakers (like State Rep. G.A. Hardaway) who defiantly rejected published suggestions that the Democratic slate of candidates had been sub-standard were not refuted by anyone.

Meanwhile, back at Election Commission East, right up ‘til the approach of midnight, the petitioners, assisted by Orrin’s IT know-how, were going through the time-consuming process of downloading the file list. (At some point, according to Newman, Gaerig apparently objected to the “Yankee rudeness” of one of the visiting consultants, who were kept at bay both then and on Friday.)

Two new discoveries had been made — (1) Ribbon scrolls containing candidate-by-candidate, precinct-by-precinct totals of the sort no longer released by the EC publicly were found in trash bags and, at the request of the petitioners, were impounded for safekeeping. And (2) there was such a thing as a “manual override” capability in the county’s Diebold voting-machine software, and records pertaining to possible use of it continued to be under lock and key.

The petitioners would end the evening in possession of one disc’s worth of information and two bags’ worth of the discarded ribbon scrolls.

On Friday the action shifted back and forth between the EC’s Operations Center East and the EC’s downtown office as the petitioners continued to request downloads from servers at both locations, the process interrupted by long delays due to continued legal sparring.

Tweet from EC apropos one of the standoffs: “Our silence is us protecting your votes & voting rights while following strong advice from attorneys.”

It is somewhat unclear exactly what data was finally downloaded, though three identical copies were supposedly made of it — one disc each for the petitioners, the Election Commission, and the Court. More information will undoubtedly be sought.

At some near point all the participating parties will presumably prepare analyses of what they have. When and how the rest of us become acquainted with it — whether through monitored legal process or some other means — remains to be seen.

Meanwhile, the second called meeting of Democrats and others interested in challenging the August 5 election outcome was convened at the AFSCME/MLK Center on Friday afternoon but was essentially only a rump session, quickly adjourned, in light of the simultaneous activities going on in the Election Commission’s spheres.

All of this, you may be sure, will be continued in the new week.

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