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- A look at the fairness and integrity of local elections tonight on Behind the Headlines.

[intense orchestral music] I'm Eric Barnes with The Daily Memphian.

Thanks for joining us.

I'm joined tonight by Brent Taylor, the Chairman of the Shelby County Election Commission.

Thanks for being here.

And Van Turner from the Shelby County Commission, thank you for being here.

- Thank you.

- Along with Bill Dries, reporter for The Daily Memphian.

So I wanted to talk about, we've got a big election, it's really seasons in Memphis, right, there's the May primaries, which in a lot of ways are very determinative of who's gonna win.

Then there's the general for local county mayor, County Commission, a lot of judges, that comes in August.

We can get some more dates later.

And then, of course, the national elections and the statewide elections in November, so a whole lot going on, a whole lot of change.

And we'll get into the weeds on a lot of things, but I wanted to start and I guess I'll go to you, Brent.

After 2020 and the national election and a lot of accusations, very few, if any, justified, of vote fraud, of stealing election, this whole question took a whole different tone about the fairness, the integrity, the safety in how elections are done and I think a lot of people learned a lot more about how elections were done, how they're done very differently state by state, sometimes even a bit county by county.

So how do you assure people in Shelby County their vote will be, they will be able to vote, their vote will be counted and they can trust the outcome, questions that sort of are maybe new or renewed on people's minds?

- Well, first of all, thank you for having me.

As I told you before the show, my feelings had been hurt.

I had been in public life for a long time and I have never been invited to this program.

- You're on a list.

- I'm glad- - You were on a list, but you got off the list.

- I'm glad I finally made it to the top of the host list here.

- We are very glad to have you.

- Well, thank you.

Yes, 2020 was a very challenging election year, not only in terms of the closeness of the presidential election, but also it was a pandemic here.

So we had a lot going on in terms of how to conduct the elections in a safe way.

There were a lot of election regulations and laws that were relaxed because of COVID.

For example, in Tennessee, you have to have a valid reason from a list of reasons that are in the statute to be able to vote absentee.

That was relaxed to the point that anyone who was just fearful of getting out and being exposed to COVID that those people were allowed to vote absentee, so we had an inordinate amount of absentee votes.

But then just the mechanics of going through an election where at the polling place where we had to have protective gear and make sure that election workers were protected, that the voters were protected and social distancing and a disposable stylus that people used on the machine, 'cause keep in mind we're using a touchscreen that thousands of voters are touching that same screen, so we had to make sure we have styluses available, disinfectants and what have you.

So in a lot of ways, the election was so far from the norm because everything we were accustomed to was just scrambled because we were attempting to operate within a pandemic.

That being said, with the help of the County Commission because they helped with funding with a lot of the protective equipment, all that we needed to have.

The Secretary of State's Office was very helpful in providing COVID money, so we were able to conduct the election and despite all that, we were able to report results timely and accurately.

And the last thing I'll say, we here in Tennessee I think are very fortunate.

Our elections laws are really good laws and they're not like other parts of the country.

So I feel very confident that given our Tennessee law, given the cooperation between the County Commission and the Election Commission, we make sure that people are able to cast their vote and that that vote will be counted and reported accurately.

- Van Turner, I mean, again, to you from the County Commission side, you're also former head of the local Democratic Party.

You were chair of the Commission.

You've all done a whole lot of NAACP, a whole lot of groups and you've been on the show many times, unlike Brent Taylor apparently.

Are you confident that going into this election season that there will be integrity, fairness, safety, all the things that people want and need to make the elections work?

- Yeah, I've been around for quite some time and involved in elections for quite some time, starting back in '07 and '09 dealing with the party politics and through now and just as we're sitting here talking I remember during the 2020 elections I would go around to the polling precincts, call out problems and then Brent would call me back and get them figured out, so I think 2020 went well, despite all that national fervor.

They said it was a fake election and the results were not right.

I think we got it right here locally.

I think Chairman Taylor worked well with the NAACP and the County Commission to make sure that happened and I think there was a previous election commissioner or election administrator who we didn't get along with so well, but I think, Ms. Phillips has been an improvement in that position, as well.

- Linda Phillips, the appointed election- - Administrator, yes, sir.

And so is everything perfect?

No.

But are we moving in a good direction?

Yes.

And have we seen improvements from the past, I would say yes.

- Bill.

- So Brent, we go back in this election to you have to have a reason to vote absentee.

Given the large number of people who voted absentee without having to have an excuse, should we go back to those reasons?

Is that experience in 2020 grounds for letting people vote absentee without any kind of reason?

- Well, that's the debate, not just locally but also nationally.

And I think there's a difference in the political parties on this particular issue.

There are those that would like to keep the relaxed rules, allow for more absentee voting, more mail-in voting and you see this playing out across the country where they're actually talking about mailing ballots to every registered voter and having them mail them back, drop boxes, all those types of things you're hearing all over the country.

So there are some that want to keep the rules relaxed because they feel it makes it easier for people to vote.

Then there are others that feel that okay, we're past the pandemic for the most part and the pandemic is getting further and further in the rear view mirror every day and that we need to go back to pre-pandemic rules that we've always conducted elections.

And so I think that's the really the debate that different communities are having.

I, for one, I would say we should go back to the rules of the way they were pre-pandemic.

If there are some laws or rules that are problematic that prevent people from voting, we need to discuss those, but I would be opposed to just a wholesale mail in ballots, drop boxes, because I just think there's too much room for people to interfere with the election.

- Van, what are your thoughts on that?

In one point in 2020, I believe that a large number, if not a majority of the folks who voted absentee, were people who were over a certain age, over the age of 60, who would have been allowed to vote absentee anyway if the rules had remained the same.

But should the rules be changed based on what we experienced in the pandemic?

- Yeah, I think so.

I don't think what we just experienced with COVID-19 won't be the last pandemic more than likely and there may be other issues that we have to deal with which would make voting difficult.

I woke up this morning and they were talking about the fault line that we're on and what if there is a massive earthquake but we still have to have elections and carry forth society as best as we can.

So I do think we should have ways to allow for individuals to vote if there are issues which prevent us voting the normal way, such as COVID-19.

I think the ballot should be open and be free to the public, to the maximum limit possible.

That's what makes a democracy.

What we do here separates us from Russia and we're probably going to war with Russia, we don't know.

I mean, that's news, too, every morning, but the difference between what we do here in America and what Putin does in Russia is that we have an open, free democracy and we have elections which determine our leadership and that should be made available to the people as far reaching as we can make it available to people so I do think the mail in ballots was good.

I think drop in ballots would be good and I actually observed an election in Mississippi and for those who are elderly, but still kind of wanted to come up to the precinct, they allow the election staff to come to the car.

So it was like drive through voting and the people could fill out the ballots and deposit it down in Mississippi.

We also are looking at hand-marked paper ballots as opposed to doing the ballot marking device and you know what's been in the media, as well, so I'm a fan of hand marked paper ballots and I think that that's something that would make it easier for voters to use and something that I'm supportive of and perhaps that's a discussion on down the road, too.

- Well, but the Tennessee legislature last year and this year again have a number of bills to change the election procedures in both directions, fewer rules, more different ways to vote and more restrictions on it.

So let me start with you, given those proposals and the ones that would restrict the ways to vote more is what we have now stable enough?

I mean, is what we have now the preference over those bills?

- Yeah, I mean, I would not restrict the ballot, but open the ballot.

So obviously, as President of the NAACP, I feel that when you restrict the ballot, you go down a slippery slope of taking away the ballots for some individuals in our community, especially those who are vulnerable and don't have access to transportation and so on and so forth.

So I'm against any law that would restrict the ballot for citizens who would like to vote.

Again, the basis of a democracy is the ability for every citizen who would like to vote to be able to vote and we should make that free and open to the public and we, on the government side should meet the needs of the people.

We shouldn't restrict them from coming to the ballot box, we should go to those people and make it as easy as possible.

So, again, the drop off ballots, again able to mail in ballots, hand-marked paper ballots, drive through balloting, I think all these things make it easier for people to vote and I'm supportive of that.

But I'm against every rule, every law that will come out of the General Assembly, which will restrict the ballot.

- Brent, what about those proposals that would change what we have now?

One way or the other?

- First, let me say, I agree with Commission Turner.

I want every person that is eligible to vote, who wishes to vote to be able to vote and have their vote counted.

When you say restrictions, I think it really comes down to a definition of one man's restrictions is another man's protection.

And so what may be couched in terms of restricting access to the ballot box is really protecting the integrity of the ballot box to ensure that people are not allow to cast a ballot if they're not legally eligible to cast a ballot.

So I really think that's where we are now.

I would agree with Commissioner Turner.

I want everybody that's legally eligible to vote be able to vote and have that vote counted.

But in terms of restrictions, I'm for restricting people who are not eligible to vote from being able to vote.

- Commissioner Turner raised the question of a new voting system for Shelby County.

I know you've been talking to your attorney, Allen Wade, who has talked about an expedited appeal of a court ruling in chancery court that really preserved the status quo in terms of who picks the voting system and who funds the voting system and where those two meet.

What is the latest on that?

Is the Election Commission going to get an expedited appeal of this?

- We hope to get an expedited appeal, but in order to talk about the appeal, I think we need to give a little bit of a back story and that is the Election Commission several years ago started the process of replacing our current election equipment.

It's 20 years old, it's barely serviceable.

We are having to cannibalize machines to keep enough machines going to conduct elections and so we went through the RFP process.

We received bids back from three of the four companies that are actually certified in the state of Tennessee to sell election equipment.

We chose ballot marking device machine through ES&S, which is the company.

We approved that, we sent it to the County Commission for funding twice.

Both times we were turned down by the County Commission for funding.

And I will say, Commissioner Turner was very helpful and I tried my best to close that gap and avoid litigation because I used my experience as a former County Commissioner and leveraged those relationships to try to reach some compromise, but we were just unable to do so.

So we simply followed the law which says if there's an impasse between the Election Commission and the funding body that we go to chancery court and the chancery court hears the case and can compel the County Commission to fund our operations.

At the trial level, the chancellor split the baby.

He said the Election Commission is the one that has responsibility for choosing the equipment, which blocked the County Commission from moving forward with their own proposal to buy the equipment for hand marked paper ballots, but the judge also said that the County Commission was not necessarily obligated to pay for the machines that we wanted.

That's where the case ended.

We have appealed that decision.

We hope to get an expedited decision simply because the sooner we can get this resolved, we'll know whether we'll be voting on the new machines that the Election Commission approved or if we're gonna have to go back to square one with new RFPs for hand marked paper ballots or ballot marking devices.

- Does it come down in simple terms to, separate from the legalities, there will or will not be a paper record or a paper ballot?

- No, there will be a paper record.

- So it's a paper ballot.

- From the ballot marking devices that we selected, the experience for the voter is very similar to what they have enjoyed the last 20 years.

It's a touchscreen, they make their selections, it prints out a paper ballot that you're able to check your selections and then you take it over to a separate scanner and it scans and tabulates the vote.

- And that's the one that you all are recommending and wanna buy?

And, Commissioner, your point of view on that is, just for people who aren't as close to this.

- Yeah, again, when I observed the election in Mississippi, they had ballot marking devices down in DeSoto County and essentially what the chairman talked about is how it works.

The big thing is this.

We wanted a paper receipt produced so that if there's a contest or an issue, you can always go to the paper 'cause you can't hack paper.

Paper is gonna be what it's gonna be and you can pull that out to verify the election.

So I'm good that we agree on that.

And so the disagreement is do we use the ballot marking device which you put the paper through and you tap what you want, the paper comes out and you put it in the machine or do you take the paper and you hand-write it, but you still put in the machine.

In Mississippi, it's ballot marking, but you can request hand marked if you can't use that.

You have an option.

Here, I think the closest we came to the agreement was we'll use the ballot marking device as the primary, but you could request hand-marked paper ballot if you did not wanna use the ballot marking device.

And so as the Chairman mentioned, we had hoped to try to close the gap and settle that, but that's the issue.

Is your primary form of voting circling the dots, putting it in the machine or running through the ballot marking machine and tapping it.

- We're in February, the first election, early voting's gonna start in- - Mid-April.

- Mid-April.

- I mean, is there any way these machines get bought and implemented before then - No, unfortunately not.

We anticipate that if we got a favorable ruling from the appeals court that it could not be in time for us to be able to use the new machines for any of the elections this year.

- But you've gotta use the same machines for all of them?

If you start, if the May county primaries are on the old system, you gotta use those throughout?

- Well, we would be comfortable with doing the first election on the old machines and switching to August for the new machines and then November.

What we don't wanna do is to move, to switch machines between August and November.

We feel like 'cause those are bigger elections.

- Gotcha.

- And there's a lot of public education that goes into this, as well.

- We've got about seven minutes left.

You talked about wanting to be a little bit more restrictive, you defined that better than I will.

How much voter fraud actually happens?

Let's start in Shelby County, but also nationally.

- Right.

I can only speak to Shelby County.

Most of the voter fraud that occurs in Shelby County is not on election day, people casting votes that shouldn't be casting votes.

Most of the fraud centers around illegal registration where somebody that was not eligible to be registered voter attempted to register to vote.

We normally catch those before they're able to cast a ballot, but occasionally they're able to cast a ballot.

- Are those nefarious acts?

Are they mistakes?

I mean, do you have any, do you know and about how many are there?

- It's difficult to say what the intent was.

I mean, that goes to the criminality of it whether did they accidentally do it or did they have a criminal intent to do it?

I think in a lot of cases, it's probably not criminal intent.

They've maybe perhaps thought they were eligible.

Most of centers around convicted felons who believe for whatever reason they've gotten their rights restored and they attempt to re-register when their rights have not yet been restored.

- Pamela Moses, who's a Memphis activist who made national news, she was sentenced to six years for illegally trying to vote.

I believe that's under appeal.

Is it hundreds of people where this comes up here or is it tens of people?

Or is it thousands of people in Shelby County?

- It's tens of people a year.

- Tens of people, okay.

- It's not widespread.

And the other issue that we have happen probably 10 times a year are immigrants who have registered to vote illegally who are attempting to get citizenship and one of the things that Homeland Security requires them to do is if they have voting status to cancel that before they can get their citizenship.

In other jurisdictions, not in Tennessee, but in other jurisdictions, immigrants are allowed, undocumented immigrants are able to vote in the local elections, they can't in Tennessee.

So sometimes they register to vote and then they are trying to get their citizenship, they come in, one of the questions on our registration form is are you a US citizen and under penalty of perjury they'd marked that they were when, in fact, they weren't and those get handed over to the district attorney for possible prosecution.

- Your perspective on this.

I mean, if we're talking about tens of people, is that why you're saying look, I wanna open it up, I wanna open it up because the cries of voter fraud, voter fraud are in fact very rare despite some very prominent cases.

I don't wanna take away from that.

- Yeah, yeah, I think those cases are very rare and there's no need to drop the hammer to try to put laws in to restrict voting when you have just a mere splattering of cases where you see this.

And, as the Chairman stated, this is not on election day, right.

And most of these laws are for the actual election day voting.

These are registration infractions and I definitely know the case of Ms. Moses and six years I think was very heavy handed and hopefully she's able to appeal that and get that corrected.

But, yes, I think the point has been made there is no need to restrict the ballot based on a few people who are trying to vote and can't vote.

- Bill, just a few minutes left.

- Brent, what do you think of the sentence for Ms. Moses?

Is six years too much for something that some people would say the election system should have caught?

- Right, well, our obligation at the Election Commission by statute is we're required to turn over illegal registrations to the district attorney for prosecution.

So I can't really speak to the sentence.

That was clearly within the domain of the judge.

However, I will say this.

It's my understanding that Ms. Moses was offered a misdemeanor, no fine, no jail time and against the advice of her attorney, she wanted a trial and went to trial, gambled her fate and unfortunately lost and wound up with a six-year sentence.

- Van, the argument might be made okay, that the standard should be do these regularities affect the outcome of the election and in most cases they don't.

I think the exception was in 2005 when we had the special election for the State Senate district that John Ford had represented and you actually had 12-vote difference in the general election.

Is that standard good enough, though, that it didn't affect the outcome?

- Yeah.

You know, I can think of much worse crimes than someone trying to vote right.

I mean, that's almost like hey, I wanna be a citizen, I'm trying to vote, I'm not out here trying to rob or kill someone, so let's just clarify what we're talking about.

But to your point, if it doesn't influence or affect the election in any way, then you know, it's hey, don't do this again, if you keep doing it, then we'll put a more significant penalty on you, but I don't think that we should really significantly or severely punish these people who I mean for some reason who have registered and tried to do something that they shouldn't be doing, but it's not the worst thing that you can do, right, trying to vote and if it doesn't affect the election, then I don't think it should be an issue.

- Brent, case law on this, I think probably drives why you have, what looks to people who aren't involved in this every day may be a complex form for registering to vote.

I mean, there are regulations around requesting absentee ballots that you really can't just publicize that and tell people in mass go out and here's your application for absentee voting.

Could the process be simpler or is the process that we have for voter registration becoming a voter such that we've had to define these rules because of instances that have come up in the past?

- Well, first of all, the local Election Commission does not set out the form by which people register to vote.

That's dictated by the Secretary of State's office.

Could it be simpler?

Perhaps.

And about every meeting we have to approve a registration where people inadvertently check the wrong box, normally around being a convicted felon where somebody who has never been convicted checks that they were a convicted felon and they get turned down and they have an opportunity to appeal that to the Commission.

- Sorry to interrupt you after 11 years and then I had to cut you off at the end, but we'll get you back sooner than that.

Van Turner, thank you very much.

We are out of time, thank you, Bill.

Please do join us again next week.

If you missed any of the show, you can get it online at wkno.org or on YouTube, or you can get the full podcast of the show on The Daily Memphian site, iTunes, Spotify, or wherever you get your podcasts.

Thanks, we'll see you next week.

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