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Federal judge dismisses voting security lawsuit in Tennessee

A federal judge dismissed a lawsuit Friday challenging the security of voting machines in Tennessee's largest county and calling for a switch to a handwritten ballot and a voter-verifiable paper trial.

U.S. District Judge Thomas Parker ruled that the lawsuit filed by a group of Shelby County voters in October 2018 failed to show that any harm has come to the plaintiffs and that they have no standing to bring the suit.

Attorney Carol Chumney sued on claims that the outdated touchscreen voting machines used by Shelby County are not secure because they do not produce a voter-verifiable paper trail, and security checks and other safeguards are needed to protect the system from outside manipulation.

Chumney wanted the county election commission to let outside experts examine its election management software and report any evidence of hacking, possible editing of votes cast or unauthorized software to the Tennessee Bureau of Investigation.

The suit questioned the security and reliability of the voting machines and its software, provided by vendor Election Systems & Software. Advocates claim the software is obsolete and presents a risk to the election system. The suit also questioned the security of memory cards, computers, and modems used by the county. The lawsuit asked that the county replace its entire elections system ahead of this October's municipal elections in Memphis with an optical scan system that uses hand-marked paper ballots.

Chumney also asked that officials require Election Systems & Software to install advanced security sensors on their system and ask the U.S. Department of Homeland Security to perform risk and vulnerability assessments on electronic voting systems.

Lawyers for the Tennessee Secretary of State's office and the Shelby County Election Commission argued that it is up to the county, not a federal judge, to change voting systems, and that the voters' group did not have standing to bring the lawsuit.

Tennessee is one of only 14 states without a statutory requirement of a paper record of all ballots — regarded by most election security experts as crucial to ensuring accurate vote-counting. Only 14 of Tennessee's 95 counties — with 556,400 registered voters combined — used voting equipment with some sort of paper trail in 2018. Half of those counties made the change just last year.

Nashville has already made the move to machines that produce paper trails, and Shelby County has indicated it's heading in that direction before the 2020 presidential primary election. Other counties are following suit.

Cybersecurity experts have long complained that the nation's antiquated elections infrastructure is vulnerable to tampering, now a critical concern given documented Russian attempts to influence the 2016 presidential election. Those activities included probes of elections systems in at least 21 states, a hack into the Illinois voter-registration database and attempts to hack a Florida maker of electronic poll books.

Concern over states with no paper trail requirements has also escalated with the recent failure by Congress to pass a measure to bolster election security systems, leaving state and local officials to handle election security themselves in 2020.

And, last month, a proposal by the state Election Commission for all future voting machines to be capable of producing some sort of paper trail was halted when a surprise legal opinion emerged from the GOP-controlled Legislature's legal team. The opinion, written on behalf of state Republican Sen. Ken Yager, contests the commission's process on how it certifies voting machines.

Parker had earlier ruled that it was not the role of the federal court to tell county officials how to conduct elections. In his Friday ruling, Parker wrote that plaintiffs "offer no proof showing that Shelby County's voting system is any more likely to discount votes than any other system used in Tennessee."

Chumney said she was reviewing the ruling and considering an appeal from the voters' group, known as Shelby County Advocates for Valid Elections, or SAVE. Chumney had sought an evidentiary hearing in the case.

Secretary of State Tre Hargett's office said it was reviewing the ruling.

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