On the basis of several highly questionable assumptions, the Tennessee General Assembly has voted to delay implementation of paper ballot voting until 2012, and to eliminate the Tennessee Voter Confidence Act’s provision for routine hand-counted audits of computer vote tallies. On Tuesday, the Tennessee Senate passed House Bill 614 on a vote of 22-10. The Senate’s passage of House Bill 614 was strongly influenced by a perception that there are no machines available that meet the law’s requirements. The Voter Confidence Act requires optical scan systems to be certified by the U.S. Election Assistance Commission to “the applicable voluntary voting system guidelines.” In November, Chancellor Russell Perkins of the Davidson County Chancery Court determined that the Voter Confidence Act allows the State to purchase voting systems certified by the EAC to either 2002 or 2005 standards. The 2002 standards are deemed by Section 222(e) of the Help America Vote Act to be first set of voluntary voting system guidelines.

Voting technology expert Dr. Douglas Jones, who was recently named to the EAC’s Technical Guidelines Development Committee, testified to the court that some voting systems certified to the 2002 standard could be updated to the 2005 standard with a simple software patch. The State of New York certified an updated version of one of the 2002-certified systems, made by Election Systems and Software, to the 2005 guidelines on December 15, 2009. One day after the Senate vote, the U.S. Election Assistance Commission certified a complete paper ballot voting system to all of the 2005 federal guidelines.It is unfortunate that the vote occurred when it appears that not all Senators had access to the facts.

There are at least two certified paper ballot voting systems on the market that meet the requirements of the law. In addition to the Unisyn Voting Solutions certified this week and the ES&S machines, the EAC has certified a third paper ballot system manufactured by Premier Election Solutions to the 2002 standard. Premier is now owned by ES&S, and at this time it is not clear if that system will be sold. Finally, a paper ballot system manufactured by Dominion Voting Systems, a Canadian firm, is expected to receive EAC certification to the 2005 guidelines in this fiscal quarter.

Tennessee has sufficient Federal funds to pay for new equipment, but some Senators mentioned the ongoing cost of optical scan voting systems. A growing body of data from other states has shown that optical scan systems have lower ongoing costs than DRE systems.

Claims that paper ballot systems cannot provide accessibility for voters with disabilities also played a role in the Senate vote. In fact, all of the EAC-certified systems include a voting device to allow voters with disabilities to vote privately and independently. Over 30 states use paper ballot systems successfully for voters with disabilities. A review of accessible machines by the California Secretary of State in 2007-2008 concluded that existing accessible paper ballot markers provided superior accessibility to the touch screens used in the state. Among the strongest supporters of paper ballot voting are people with disabilities and accessibility advocates.

The need to replace Tennessee’s paperless systems is as urgent as ever. As the Tennessee Advisory Commission on Intergovernmental Relations concluded in its 2007 report Trust But Verify, Tennessee’s paperless machines are vulnerable to error and tampering, unauditable, and unrecountable. Dr. Jones stated in his testimony last year said that he believed “voters using precinct-count optical mark-sense voting systems have a significantly higher likelihood of having their votes counted and counted as intended than voters using current touch-screen direct-recording electronic voting machines.”

The Tennessee General Assembly that is elected in November 2010 will draw the legislative districts for the next decade. That Assembly will be elected on vulnerable, unverifiable, unrecountable voting systems – unless the Governor vetoes House Bill 614.