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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