CINCINNATI (CN) - An elections advocacy group urged a Sixth Circuit panel Tuesday to reinstate its case against the Tennessee Election Commission based on claims that one county's electronic voting machines and software have created an inherently insecure system.
Shelby County Advocates for Valid Elections, or SAVE, and several individual voters sued Tennessee Secretary of State Tre Hargett, the state's election commission and the Shelby County Election Commission five days before early voting began in Shelby County for the November 2018 election.
SAVE alleged the AccuVote-TSx R7 direct-recording electronic voting machines and Diebold GEMS voting software utilized by Shelby County fail to meet statutory requirements because they do not create a "voter verified paper audit trail," and store votes solely on removable memory cards.
The group's complaint alleged election results are subject to manipulation because of their digital-only nature, which could result in the disenfranchisement of voters in the county with the state's largest black population.
U.S. District Judge Thomas Parker denied the group's motion for a preliminary injunction to prevent the use of the machines in the 2018 election, and eventually dismissed all of the claims after he determined the plaintiffs lacked standing.
Parker, who was appointed by President Donald Trump, ruled that SAVE had suffered no concrete injury and had proven no imminent threat of an injury, but made only speculative claims regarding the threat of the voting machines being hacked.
The judge cited the 2006 Sixth Circuit case Stewart v. Blackwell as a contrasting situation, and pointed out that statistical evidence in that case "showed that the error rate was 50 percent higher in voting machines using punch cards versus other voting technologies."
The elections advocacy group argued that its spending of money on litigation granted it standing to pursue due process claims, but Parker disagreed.
"SAVE's purpose is to monitor elections, report its findings, and advocate for more secure elections processes," he wrote. "That SAVE is having to spend more to advocate their position does not satisfy the injury in fact standard."
Attorney Carol Chumney argued Tuesday on behalf of SAVE and told the Sixth Circuit panel that the ruling in Stewart gave her client standing, because even just an increased risk of error in the tabulation process was sufficient to qualify as a concrete and particularized injury.
"The threat [of hacking] is certainly impending," Chumney said.
U.S. Circuit Judge Jeffrey Sutton, a George W. Bush appointee, asked Chumney about new voting machines that are supposedly being purchased by Shelby County.
"We still don't have them," the attorney answered.
U.S. Circuit Judge Eric Murphy, a Trump appointee, asked about the lack of hard evidence of hacking in Shelby County.
Chumney admitted there was no evidence, but told Murphy that her client's expert witness says tampering is "highly likely" because of the lack of security on the voting machines, which are no longer supported by the manufacturer.
U.S. Circuit Judge Julia Gibbons, another George W. Bush appointee, asked if human error could be responsible for miscounted votes, or voters who receive the incorrect ballot.
The attorney conceded that human error is a factor, but stressed to the panel that malware can affect the voting machines as well.
Chumney told the panel on several occasions that the machines used in Shelby County have been outlawed in Georgia following a series of hacking incidents.
Tennessee's Deputy Attorney General Janet Kleinfelter argued on behalf of Secretary of State Hargett, focusing on the lack of evidence presented by her counterpart.
"They've never identified a situation where the machines themselves have malfunctioned," Kleinfelter told the panel.
She also pointed out that many of the instances in which voters were given incorrect ballots were the result of redistricting.
"The past harms that are alleged are the result of human error," Kleinfelter said.
She reminded the panel that Georgia's ban on the voting machines came after two verified cases of hacking, while there have never been any allegations of hacking in Shelby County.
When asked about new voting machines, Kleinfelter assured the panel that funding is in place for the machines, which will be available for use in Shelby County by August 2020.
Attorney Pablo Varela argued briefly on behalf of the Shelby County Election Commission, and reiterated that any issues with the election process are the result of human error.
No timetable has been set for the court's decision.