OTOH : Although my suit is based upon the Tennessee Constitution and not the federal constitution, because Tennessee has never addressed the meaning of the words of our constitution which says that all elections must be "free and equal," I am asking the court to use the federal cases on equal protection as precedent.
This way I get to discuss and apply federal law to a state case. If the Court's rationale is good and if the Court discusses federal law in its opinion, then it will have some (perhaps a lot) precedential value in the federal courts as well as other state courts.
Also, I sure would like to get a copy of Wexler's brief. If the 11th circuit has not rendered an opinion by the time my case is heard, I would like to provide a copy of Wexler's brief to my court. If anyone can find a pdf of it, (I have not yet), please let me know.
Also both Land Shark and I do agree that Stewart v. Blackwell means we are headed for uniformity. We have had a long conversation about this by phone and he is more pessimistic than I, believing that uniformity will result in DRE's with no paper trail. He could be right.
But I think that is why shining a light on the farce that paperless voting makes out of the recount process and an election contest may prevent DRE's being cramdowned (to use Land Shark's term) our throats.
Consider this. The threat of a lawsuit (one with teeth and effectiveness anyway) deters wrongdoing. Lawsuits are also the final means of righting wrongs when everything else fails. I am a tort lawyer. In essence an election contest is basically a complaint by the Plaintiff that he has been the victim of a wrong ( a bad count, fraud, malfeasance) and he seeks to prove that he has been wronged and should have been declared the victor. If you make these cases of wrongdoing simple and verifiable, which you can do with paper ballots as evidence, then the court can right the wrong. If you make these cases extremely complex, a battle of experts, fights over trade secrets, and one where a decision is based on expert opinion not verifiable facts, then the election contest does not serve as a means of righting a wrong, as a means of deterring wrong, and becomes a legal fiction. Where is the due process if you have no means of proving you have been a victim of a wrong?
If we can work backwards, and begin by making sure we have valid election contests, which unquestionably verify a winner, (as paper would do if a jury could count the ballots), then I think we can convince courts we must have paper ballots or at least paper trails. Then those who would perpetrate fraud would know they might get caught and might not try to begin with.
But without the option to resort to a verifiable election contest, we have every reason to be pessimistic.