Mills v. Shelby County Election Commission

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

On-Brief June 28, 2006

DAVID G. MILLS v. SHELBY COUNTY ELECTION COMMISSION, ET

AL.

A Direct Appeal from the Chancery Court for Shelby County

No. CH-05-1565-3 The Honorable D. J. Alissandratos, Chancellor

No. W2005-02883-COA-R3-CV - Filed August 8, 2006

Plaintiff/Appellant filed suit under the Tennessee Declaratory Judgment Act asserting that

the legislation authorizing the use of electronic voting machines in some jurisdictions violated Art.

I, § 5 and Art. IV, § 1 of the Tennessee Constitution. The Shelby County Chancery Court dismissed

Plaintiff/Appellant’s complaint pursuant to Tenn. R. Civ. P. 12.02(6). We affirm.

Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed

W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which ALAN E. HIGHERS,

J. and DAVID R. FARMER , J., joined.

David G. Mills, Pro Se, of Cordova, Tennessee

Felisa N. Cox, Assistant County Attorney, for Appellee, Shelby County Election Commission

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Janet M.

Kleinfelter, Senior Counsel for Appellee, State of Tennessee Attorney General

OPINION

David G. Mills (“Appellant”) is an attorney and a registered voter in Shelby County,

Tennessee. On August 24, 2005, Mr. Mills filed suit under the Declaratory Judgment Act against

the Shelby County Election Commission (the “Commission”). Mr. Mills asserts that the use of

electronic voting machines by the Commission violates Art. I, § 5 and Art. IV, § 1 of the Tennessee

Constitution, and the statutes so authorizing electronic voting are unconstitutional.1 Mr. Mills seeks,

inter alia, to have the trial court declare that the Commission “must use a system of voter verified,

1

T.C.A. § 2-5-206, T.C.A. § 2-8-204, T.C.A. § 2-8-110, T.C.A. § 2-8-113, T.C.A. § 2-9-101, T.C.A. § 2-9-110,

and T.C.A § 2-17-110.

tangible paper ballots that are capable of being placed by the voters into an appropriate ballot box

for later tabulation.” Pursuant to Tenn. R. Civ. P. 24, on August 30, 2005, Mr. Mills served a copy

of the Complaint on the Attorney General (together with the Commission, “Appellees”). Pursuant

to Tenn. R. Civ. P. 24.01 and T.C.A. § 8-6-109(b)(9), on September 29, 2005, the Attorney General

petitioned the trial court to intervene in the case. On November 30, 2005, Mills filed, by consent,

an amended complaint. The parties agreed to the Attorney General’s intervention and, on December

9, 2005, an Agreed Order of Intervention was entered by the trial court. In the interim, on November

3, 2005, the Attorney General filed a motion to dismiss Mr. Mills’ Complaint in its entirety on the

grounds of lack of standing and failure to state a claim upon which relief can be granted under either

Art. I, § 5 or Art. IV, § 1 of the Tennessee Constitution. On November 7, 2005, the Commission

also filed a Motion to Dismiss, which adopted and incorporated the Motion and memorandum of law

filed by the Attorney General.

On November 30, 2005, Mr. Mills filed a motion for leave to amend his Complaint, asserting

that only minor changes had been made to the Complaint and that no prejudice would result to the

Commission or to the Attorney General. The parties ultimately agreed to the filing of the Amended

Complaint. The Amended Complaint was filed on December 2, 2005 and reads, in pertinent part,

as follows:

BACKGROUND

5. Shelby County, Tennessee presently requires its citizens to vote on

electronic voting machines that produce no paper ballot or no paper

verification of the vote cast.

6. The Plaintiff has been required, as have most, if not all of Shelby

County residents, to vote on these paperless machines for the last

several elections, and Plaintiff presently intends to be a Shelby

County resident voter for many years to come.

7. The Plaintiff, and the other citizens of Shelby County have no

means of verifying that their votes are actually being properly

recorded when their votes are cast on paperless mechanical or

electronic voting machines.

8. The Plaintiff, as well as other citizens of Shelby County, knows

that when the ballot is paperless, poll workers have no means to

review a questionable vote to determine the intent of the voter.

9. The Plaintiff, as well as the other citizens of this county, knows

that with paperless mechanical or electronic voting, the poll workers

or other interested citizens have no means to statistically estimate

whether the votes are being properly recorded and tabulated.

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10. The Plaintiff, as well as other citizens of this county, knows that

with paperless mechanical or electronic voting there is only one

system of tabulation and that no secondary system of tabulation exists

to verify or check the one and only system of tabulation.

11. The Plaintiff, as well as other citizens of this county, knows that

with paperless mechanical or electronic voting, since no secondary

system of cross-tabulation exists, there is no verifiable means of

performing a legitimate recount of any election that might be

questionable, close, or suspicious; with paperless voting, a recount is

merely a copycat procedure, not a legitimate crosscheck.

12. Upon information and belief, the Plaintiff avers that these

electronic voting systems may also disenfranchise voters in the event

that voter turnout is far greater than expected; since each voter must

wait his turn to use the machine, the possibility of too few machines,

causing discouraging delays, is quite real.

13. Upon information and belief, the Plaintiff avers that these

electronic voting systems may disenfranchise voters when there are

power outages or other malfunctions of the paperless machines during

the election process.

14. Upon information and belief, the Plaintiff would aver that even

in a state election contest, a paperless voting machine’s cumulative

tabulations are not an equivalent evidentiary replacement for paper

ballots; paperless voting makes judicial review of state election

contests far less legitimate than election contests involving paper

ballots.

* * *

16. Paperless voting systems, especially paperless electronic voting

systems, require the citizens of this county have unwarranted faith in

the integrity of the system; they reduce both the recount process and

election contests to near legal fictions.

17. Upon information and belief, the Plaintiff avers that one or more

private corporations manufacture the electronic voting systems used

by the Shelby County Election Commission and that the software

used in these electronic systems remains the proprietary trade secret

of the manufacturer.

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18. Upon information and belief, the Plaintiff avers that the Shelby

County Election Commission does not independently possess the

means or the ability to produce its own software for these machines

and must rely upon the training, skill and integrity of private

corporations or their employees to determine whether the software

running these machines can properly record and count the votes cast

on these machines.

19. Upon information and belief, the Plaintiff avers that in order to

operate the electronic voting machines which record and count the

votes of the citizens of Shelby County, the Shelby County Election

Commission must rely upon the technical expertise of individuals and

corporations who are not elected, who are not appointed, who are not

sworn to uphold the Constitutions of the United States or the State of

Tennessee, or who may be unduly partisan; and perhaps without

realizing it, the Shelby County Election Commission may even be

relying upon the employees of corporations who may not, or could

not, have passed criminal background checks, or it may be relying

upon persons who have been required to pass religious, racial, sexual

or political tests to obtain employment, or it may be relying on

persons who could even be citizens of a foreign country, or, in the

worst possible case, it could be relying on foreign persons who are

enemies of the state.

20. Upon information and belief, the Plaintiff also avers that the

central tabulators, which compile the votes from each precinct, are

also privately owned and also have proprietary software that the

manufacturers claim to be a trade secret, and are also subject to most,

if not all, of the same problems as the electronic voting machines

themselves.

21. The Plaintiff brings this cause of action to have this court declare

that the voting methodology and process currently in use in Shelby

County by the Shelby County Election Commission, along with the

statutes that permit this voting methodology and process, are in

violation of the Tennessee Constitution and are therefore respectively

illegal and unconstitutional.

* * *

THE TENNESSEE CONSTITUTIONAL REQUIREMENTS

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23. Article I, § 5, of the Tennessee Constitution states in relevant

part: “The elections shall be free and equal. . . .”

24. Furthermore, Article IV, § 1, of the Tennessee Constitution states

in relevant part: “The General Assembly shall have the power to enact

laws . .. to secure . . . the purity of the ballot box.”

25. However, the General Assembly, when it enacted the Tennessee

Election Code made the following legislative enactment (in effect, a

codified preamble to the election Code) in TCA § 2-1-102:

“The purpose of this title is to regulate the conduct of

all elections by the people so that: (1) The freedom

and purity of the ballot are secured.”

26. Of obvious and important note is that the Election Code

preamble omits two very important words from the Tennessee

Constitution: (1) the word equal from Article I, § 5, and (2) the word

box from Article IV, § 1.

27. Thus the General Assembly, when it enacted the preamble to the

Tennessee Election Code, by omitting the two crucial words of equal

and box, enacted two systems of possible voting: one system which

included a paper ballot and which the framers of the Constitution

intended as the standard means of voting, and a second system that

was paperless and which was never contemplated by the framers of

the Constitution.

28. Plaintiff avers that these two systems are vastly unequal in the

rights the systems grant to the voters and candidates of this state;

moreover, Plaintiff avers that the voters in Shelby County, who must

vote on paperless systems have vastly inferior voting rights when

compared with those other citizens of other counties whose election

officials have opted to retain the use of paper ballots.

29. Plaintiff therefore avers that the two systems violate the

Constitutional requirement of equality set forth in Article I, § 5.

30. Plaintiff also avers that the paperless system now in use also

violates the constitutional requirement and standard of a ballot and its

box as set forth in Article IV, § 1; the word box clearly implies that

an individual and tangible ballot must be used to be placed into a

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ballot box and thus mandates the usage of an individual and tangible

paper ballot.

31. Article IV, § 1 requires a two-part voting system: (1) the

individual and tangible paper ballot and (2) its box or receptacle, in

its purity, this is a system of duality.

32. When the General Assembly enacted the provisions of the

Election Code that allowed for paperless voting, it provided for an

all-in-one system; in its purity, this paperless system is a system of

singularity.

33. Plaintiff avers that when one changes from a voting system of

duality to a voting system of singularity, a substantial loss of

Constitutional voting rights occurs in the process.

34. Plaintiff avers that it is the loss of the right to an individual and

tangible paper ballot that causes the loss of so many substantial

voting rights, making paper based systems and paperless systems

inherently unequal.

35. The loss of an individual and tangible paper ballot means that a

ballot is no longer verifiable to the voter; the voter can no longer

verify the name of the candidate he or she has selected, nor can he or

she verify any vote for or against any particular referendum, nor can

he or she can verify for himself or herself that the vote is in fact

recorded.

36. The loss of an individual and tangible paper ballot means that

human poll workers can no longer ascertain the will of the voter

should there be some questions about the voter’s intent.

37. The loss of the individual and tangible paper ballot means that

human poll workers can no longer statistically estimate the accuracy

of any tabulation, when deemed appropriate, whether or not the initial

tabulation was done by human, mechanical or electronic means.

38. Take away the individual and tangible paper ballot and both the

recount process and the election contest process become unverifiable

copycat procedures with no ability to crosscheck for errors or fraud.

39. The road to paperless voting (and with it, the loss of the

individual ballot) began innocently enough with mechanical voting

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machines which recorded votes by pulling a lever after selections

were made and which tallied the votes as they occurred; these

machines and how they worked were beyond the comprehension of

the average voter and poll worker.

40. Even the early mechanical voting machines that were beyond the

comprehension of the average voter and poll worker caused enough

voter angst, distrust and suspicion; but, the new electronic voting

machines are so far beyond the comprehension of the average voter

and poll worker that voter angst, distrust, and suspicion has reached

epidemic levels.

41. With the loss of the individual paper ballot becoming

widespread, and with electronic voting machines becoming common,

both the quality of elections, and the purity of the ballot box, along

with the brilliance of its simple duality, have been lost; and the result

is a crisis of confidence in the election process.

On November 30, 2005, Mr. Mills filed his Response to the Attorney General and

Commission’s motions to dismiss. Mr. Mills asserts, inter alia, that he has standing to bring the

lawsuit by virtue of the Declaratory Judgment Act, and that the Complaint presents a justiciable

controversy because there is an inherent inequality between voting on a tangible paper ballot and

voting on any paperless system. In essence, Appellant asserts that citizens of other Tennessee

counties have the right to vote on paper ballots and have paper records of their votes, while he is

required to vote in Shelby County with an electronic voting machine that is operated by software

owned by a private corporation. Primarily he asserts that he is without the ability to audit or verify

the election results, which he could do with paper ballots. A hearing on the motions to dismiss was

held on December 2, 2005. On December 9, 2005, the trial court entered its “Final Order of

Dismissal,” by which the trial court dismissed Mr. Mills’ Complaint and Amended Complaint “in

their entirety and with prejudice pursuant to Tenn. R. Civ. P. 12.02(6).”

Mr. Mills appeals from the Final Order and raises two issues for review as stated in his brief:2

I. Whether the Chancery Court erred in dismissing Appellant’s cause

of action if the dismissal was based on the Chancellor’s conclusion

that Appellant did not have standing to sue.

II. Whether the Chancery Court erred in dismissing Appellant’s

cause of action if the dismissal was based on the Chancellor’s

2

Mr. Mills also filed an Application to the Supreme Court to Assume Jurisdiction pursuant to T.C.A. § 16-3-

201(d). On March 2, 2005, the Supreme Court issued an Order denying Mr. Mills’ application.

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conclusion that Appellant did not state a claim upon which relief

could be granted.

We first note that a motion to dismiss a complaint for failure to state a claim upon which

relief can be granted tests the legal sufficiency of the complaint. It admits the truth of all relevant and

material allegations but asserts that such allegations do not constitute a cause of action as a matter

of law. See Riggs v. Burson, 941 S.W.2d 44 (Tenn.1997). Obviously, when considering a motion

to dismiss for failure to state a claim upon which relief can be granted, we are limited to the

examination of the complaint alone. See Wolcotts Fin. Sev., Inc. v. McReynolds, 807 S.W.2d 708

(Tenn. Ct. App.1990). The basis for the motion is that the allegations in the complaint, when

considered alone and taken as true, are insufficient to state a claim as a matter of law. See

Cornpropst v. Sloan, 528 S.W.2d 188 (Tenn.1975). In considering such a motion, the court should

construe the complaint liberally in favor of the plaintiff, taking all the allegations of fact therein as

true. See Cook Uithoven v. Spinnaker's of Rivergate, Inc., 878 S.W.2d 934 (Tenn.1994).

Mr. Mills brings his suit under the Tennessee Declaratory Judgment Act, specifically T.C.A.

§ 29-14-103 (2000), which reads, in relevant part, as follows:

Any person interested under a deed, will, written contract, or other

writings constituting a contract, or whose rights, status, or other legal

relations are affected by a statute, municipal ordinance, contract, or

franchise, may have determined any question of construction or

validity arising under the instrument, statute, ordinance, contract, or

franchise and obtain a declaration of rights, status or other legal

relations thereunder.

The Declaratory Judgment Act exists to “settle and to afford relief from uncertainty and insecurity

with respect to rights, status, and other legal relations.” T.C.A. § 29-14-113. Although the statute

is to be liberally construed, id., it is well settled that “certain limitations must be placed upon the

operation of the statute.” Johnson City v. Caplan, 253 S.W.2d 725, 726 (Tenn. 1952). Several of

these limitations were discussed by our Supreme Court in State v. Brown & Williamson Tobacco

Corp., 18 S.W.3d 186 (Tenn. 2000), to wit:

[A] declaratory judgment action cannot be used by a court to decide

a theoretical question, Miller v. Miller, 149 Tenn. 463, 261 S.W. 965,

972 (1924), render an advisory opinion which may help a party in

another transaction, Hodges v. Hamblen County, 152 Tenn. 395, 277

S.W. 901, 902 (1925), or “allay fears as to what may occur in the

future,” Super Flea Mkt., 677 S.W.2d at 451. Thus, in order to

maintain an action for a declaratory judgment a justiciable

controversy must exist. Jared v. Fitzgerald, 183 Tenn. 682, 195

S.W.2d 1, 4 (1946). For a controversy to be justiciable, a real

question rather than a theoretical one must be presented and a legally

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protectable interest must be at stake. Cummings v. Beeler, 189 Tenn.

151, 223 S.W.2d 913, 915 (1949). If the controversy depends upon a

future or contingent event, or involves a theoretical or hypothetical

state of facts, the controversy is not justiciable. Story v. Walker, 218

Tenn. 605, 404 S.W.2d 803, 804 (1966). If the rule were otherwise,

the “courts might well be projected into the limitless field of advisory

opinions.”

Id. at 193.

As set out in his Complaint and reiterated in his brief, Mr. Mills’ primary concern is that,

“without a paper ballot or paper record of his vote, there can be no meaningful recount in a

questionable election outcome, nor can there be a meaningful election contest if one becomes

necessary;” and that, consequently, his voting rights are diminished “when compared with other

citizens of Tennessee who get a paper ballot of record.” Even if this Court were to concede that

paperless voting could disenfranchise voters under certain circumstances, there is no indication in

the Complaint that voters are presently being disenfranchised by the current voting system. In short,

Mr. Mills’ allegations appear to based on conjecture and not upon actual events. The hypothetical

nature of his Complaint is evidenced by his use of terms such as “might” (e.g. “There is no verifiable

means of performing a legitimate recount of any election that might be questionable...”), and “may”

(e.g. “[T]hese electronic voting systems may disenfranchise voters...”). As noted by our Supreme

Court in Brown v. Williamson, supra, “[i]f the controversy depends upon a future or contingent

event, or involves a theoretical or hypothetical state of facts, the controversy is not justiciable.” Id.

at 193. From a complete reading of the Complaint, and construing the allegations therein in a light

most favorable to Mr. Mills, Cook Uithoven v. Spinnaker's of Rivergate, Inc., 878 S.W.2d 934

(Tenn.1994), we conclude that Mr. Mills presents a theoretical question of what may happen in

future elections, which question does not rise to the level of a justiciable controversy. See Brown

v. Williamson, 18 S.W.3d at 193. However, even if we assume arguendo (which we do not) that

Mr. Mills’ claims rise to the level of a justiciable controversy, we nonetheless conclude that he has

failed to state a claim upon which relief can be granted under either Art. I, §5 or Art. IV, §1 of the

Tennessee Constitution.

Art. I, § 5

Art. I, § 5 of the Tennessee Constitution provides, in pertinent part, that:

[T]he elections shall be free and equal, and the right of suffrage, as

hereinafter declared, shall never be denied to any person entitled

thereto, except upon conviction by a jury of some infamous crime....

Mr. Mills asserts that the Commission’s authorization of the use of electronic voting machines, as

opposed to paper ballots, creates an inequality in voting, thereby violating this section of our

Constitution. We disagree. The use of “free and equal” in Art. I, § 5 of the Tennessee Constitution

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refers to the rights of suffrage and not to the logistics of how the votes are cast: “The rights of

suffrage which section 5 declares shall be ‘free and equal’ is the right it refers to in section 5 of

article 1, as ‘hereinafter declared,’ meaning as declared in section 1 of article 4.” Earnest v. Green

County, 138 Tenn. 442, 198 S.W. 417 (Tenn. 1917); “it has previously been held that the ‘free and

equal’ requirement [of Art. I, § 5] relates only to the rights of suffrage and not the nature of elections.

Compare, Bemis Pentecostal Church v. State, 731 S.W.2d 897, at 901 (Tenn.1987), cert. denied,

485 U.S. 930, 108 S.Ct. 1102, 99 L.Ed.2d 264 (1988).” State ex rel. Hooker v. Thompson, 1996 WL

570090, at *4 (Tenn. Oct. 2, 1996).

In his Complaint, Mr. Mills makes no allegation that he, or any other voter, has been denied

the free exercise of suffrage as a result of the use of electronic voting machines, nor has he shown

that he, or any other voter, has actually been deprived of having his or her vote counted as cast.

Consequently, there is no showing that electronic voting curtails the free and equal right to suffrage

as contemplated by Art. I, § 5 of the Tennessee Constitution.

Art. IV, § 1

Art. IV, § 1 of the Tennessee Constitution reads, in relevant part, as follows:

The General Assembly shall have power to enact laws requiring

voters to vote in the election precincts in which they may reside, and

laws to secure the freedom of elections and the purity of the ballot

box.

Mr. Mills asserts that the use of electronic voting machines violates this section of our Constitution

in that this means of voting “fails to secure the purity of a tangible paper ballot and its box.”

It is well settled that the authority of the Tennessee Legislature to control the conduct of

elections held in this State is manifest. See Trotter v. City of Maryville, 191 Tenn. 510, 235 S.W.2d

13 (1950). However, “[t]his right of control does not, and cannot, go beyond the limitation

expressed in Article I, Section 5 of the Constitution wherein it is provided in substance that the right

of suffrage will not be denied any person, except on conviction.” Trotter, 235 S.W.2d at 521-22.

As discussed above, Mr. Mills’ Complaint does not allege that he, or any other voter, has been

denied the right to vote, or actually had his or her vote lost or miscounted, as a result of the

Commission’s authorization of the use of electronic voting machines.

In his argument, Mr. Mills asserts that the use of the words “ballot box” in Art. IV, § 1

requires the use of paper ballots. We disagree. T.C.A. § 2-1-104(2)(2003) defines “ballot” as “either

a piece of paper or the labelled face of a voting machine prepared by appropriate election officials

for voters to use to cast their votes.” Furthermore, our Supreme Court has reasoned that the word

“ballot” as it occurs in the Tennessee Constitution is “not used in a literal sense but merely by way

of designating a method of conducting elections that will guarantee the secrecy and integrity of the

ballot.” Mooney v. Phillips, 173 Tenn. 398, 118 S.W.2d 224, 226 (1938). The Mooney Court went

on to uphold the use of voting machines in Tennessee based upon the authority of the legislature to

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“provide different methods of exercising the elective franchise....” Id. In short, while the right to

vote is fundamental, there is no recognized right to a certain balloting system. Furthermore, there is

no right to a perfect voting system. The legislature has made ample provisions for the use of voting

machines in place of the old-fashioned, paper ballot system. Adequate safeguards have been

instituted to assure free and equal elections and to maintain the purity of the ballot. See T.C.A. §

2-9-101 – T.C.A. § 2-9-117. The Complaint in this case does not allege facts that rise to the level

of a violation of the Plaintiff’s constitutional rights.

In Weber v. Shelley, 347 F.3d 1101 (9th Cir. 2003), the Court was faced with a question

similar to the question in this case and summed it up succinctly, stating:

[T]he question is whether using a system that brings about numerous

positive changes (increasing voter turnout, having greater accuracy

than traditional systems, being user-friendly, decreasing the number

of mismarked ballots, saving money, etc.), but lacks a voter-verified

paper ballot, constitutes a “severe” restriction on the right to vote.

[6] [7] We cannot say that use of paperless, touchscreen voting

systems severely restricts the right to vote. No balloting system is

perfect. Traditional paper ballots, as became evident during the 2000

presidential election, are prone to overvotes, undervotes, “hanging

chads,” and other mechanical and human errors that may thwart voter

intent. See generally Bush v. Gore, 531 U.S. 98, 121 S.Ct. 525, 148

L.Ed.2d 388 (2000).

Id. at 1106.

For the foregoing reasons, we affirm the Order of the trial court. Costs of this appeal are

assessed to the Appellant, David G. Mills, and his surety.

__________________________________________

W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.

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