SAVE v. Hargett

The plaintiffs, represented by Carol Chumney, contended that Shelby County’s use of the paperless Diebold AccuVote-TSx direct-recording electronic (RE) voting machines deprives Shelby County voters of their fundamental right to vote and to equal protection of their right to vote. Shelby County elections have been plagued with problems since it began to use the AccuVote-TSx in 2006. The system repeatedly has over- or undercounted of votes. It also has given thousands of voters the wrong ballot, which has allowed voters to vote on elections outside their district and denied other voters the opportunity to vote for their district’s elected officials. Faulty machines and software issues also have caused the machines to incorrectly record a voter’s candidate of choice.

The machines—thirteen years old and no longer produced or updated by its vendor—are also vulnerable to hacking. Cybersecurity experts have demonstrated the ease with which a malicious hacker might tamper with elections by hacking the machines. And the system has no physical ballot of record, thus preventing Shelby County from conducting an effective post-election audit capable of reliably spotting and correcting the machine’s tallying errors. The problems with the AccuVote-TSx are so severe that California decertified the system more than a decade ago, and other states have followed suit since then.

The federal district court dismissed the case, finding that the plaintiffs’ claims were merely speculative and that they therefore did not have standing to bring their case. The plaintiffs appealed, but the Court of Appeals for the Sixth Circuit affirmed. The plaintiffs then petitioned for certiorari from the U.S. Supreme Court.

Our amicus brief, filed with co-counsel Covington Burling on behalf of individual election security experts, argued that the harm is not speculative, but is in fact real, certain, and imminent. The AccuVote-TSx DRE system arbitrarily dilutes voting power by under- and overcounting voters and by misassigning ballots, thereby increasing the voting power of some voters at the expense of others. It also arbitrarily dilutes voting power by arbitrarily assigning votes to incorrect candidates.

The system also puts the county at real and imminent risk for high-tech ballot box tampering. Known defects in the voting system make it highly susceptible to undetectable foreign and domestic interference. And Shelby County compounds these real and imminent harms by employing a system that has no reasonable, secure, and voter-verifiable auditing mechanism. The system causes real and imminent injury to the plaintiffs’ fundamental right to vote. Therefore, we argued, the Sixth Circuit should reverse the district court’s decision and allow the plaintiffs to proceed with their complaint. Unfortunately, the Sixth Circuit affirmed the district court.

Our amicus brief in the Supreme Court supported SAVE’s petition for certiorari. Unfortunately, on October 5, 2020, the Supreme Court denied the petition for certiorari.

Free Speech For People serves as co-counsel for amici. We are grateful for the pro bono assistance of Covington Burling LLP.