Restoring the Secret Ballot to Disabled Voters to Assure Equality in Voting

To:                  Members of the Maryland General Assembly

From:             Members of the National Federation of the Blind of Maryland

Contact:         Sharon Maneki, Director of Legislation and Advocacy

National Federation of the Blind of Maryland

9013 Nelson Way

Columbia, MD 21045

Phone: 410-715-9596

Email: nfbmd@earthlink.net

 

Date:               January 24, 2019

 

THE PROBLEM

For most of its history, all voters in Maryland used the same voting system. This situation changed in the 2016 and 2018 elections because the Maryland State Board of Elections (SBE) created two systems of voting:  the ExpressVote electronic ballot marking device (BMD), and the paper-based system in which ballots are marked by hand.  The SBE has selected the voter-verifiable paper-based solution leased from Election Systems and Software (ES&S) as its BMD.  Unfortunately, SBE is limiting the use of this BMD by deploying only one device to each polling place.  The SBE is further limiting the use of these BMDs by requiring only two voters per polling place to use the BMD. Many blind and disabled voters are forced to use the ES&S BMDs to cast their ballots because they cannot use the hand marked ballots.  The problem for blind and disabled voters is that the BMDs produce paper ballots that are smaller in size and differ in content from the hand marked ballots.  Thus, in the 2016 and 2018 elections, ballots cast by blind and disabled voters were segregated and too easily identifiable in the overall collection of ballots.  Therefore, ballots cast by blind and disabled voters were no longer secret.  Maryland no longer had equality in voting.

PROPOSED ACTION

The Maryland General Assembly should enact legislation requiring the SBE to create one voting system for all voters in Maryland when the contract for the ES&S BMDs ends in 2020. The preamble of this legislation should state that there shall be no discrimination on the basis of disability in the voting process. The practice of using segregated ballots must be eliminated.

BACKGROUND

At the end of the 20th century, Maryland began to modernize its voting system. Gradually, Maryland introduced voters to using a touch screen electronic system with all jurisdictions using the same system beginning in the 2004 elections. Voters with disabilities were most pleased  because the nonvisual access of this new voting system allowed us to vote secretly and in private for the first time.  However, this touch screen system did not produce paper ballot records which would be essential for the purposes of recounts and verification.  The SBE was then forced to adopt a new voting system that was capable of producing paper ballot records.  This new voting system was first used in the 2016 election.

The state of Maryland was unwilling to spend the money that was needed to purchase enough BMDs for all voters to use in the 2016 elections.  This shortage led SBE to deploy only one BMD in each polling place, which forced most voters to mark their ballots by hand.  This decision was the beginning of the loss of the secret ballot for blind and disabled voters.

In the 2016 primary election, candidates whose names appeared on the second or third screens of the BMD threatened legal action, complaining that navigating to these screens was too difficult.  To appease these candidates, SBE further limited the use of the BMDs by requiring that only two voters per polling place needed to use them.  This minimum limitation forced even more voters to mark their ballots by hand.

Maryland Election Law Article §9-102(f)(1), Annotated Code of Maryland, states that a voting system selected and certified by the SBE shall "provide access to voters with disabilities that is equivalent to access afforded voters without disabilities without creating a segregated ballot for voters with disabilities."  

On December 18, 2013, the Attorney General of Maryland issued an opinion stating that if SBE chooses to certify an accessible ballot marking device that produces a ballot that is different in size and/or content from the hand-marked ballots, SBE “must establish randomized polling-place procedures to ensure that a significant number of non-disabled voters will use the accessible voting system to protect the secrecy of the ballots cast by voters with disabilities.” Requiring only two voters to use the BMD does not meet the definition of randomized polling procedures. We emphasize again that this two-voter minimum requirement denies blind and disabled voters the right to a truly secret ballot.

CRITICAL ERRORS BY THE SBE

The experience of the 2016 primary and general elections demonstrated that all voters had little difficulty in navigating the multiple screens on the BMD. Although the concerns of the candidates were baseless, SBE still refused to change its two-voter policy for the 2018 elections. SBE also chose to disregard the concerns of disabled voters about their loss of the secret ballot.

The National Federation of the Blind of Maryland (NFBMD) maintains that balancing the rights of voters against the complaints of candidates does not justify a system that:

(1) creates the physical segregation voters with disabilities;

(2) causes the segregation of their ballots according to physical appearance and content;

(3) jeopardizes the privacy of their votes.

This was the reason language prohibiting a segregated ballot was included in Maryland Election Law Article §9-102(f)(1), Annotated Code of Maryland.

We emphasize again that there were no reports of voters having difficulty with navigation during the 2016 election season. The issue of ballot order bias exists for both hand marked ballots and BMDs.  While most studies agree there is a positive impact on candidates listed first, there is not a consensus on size of the impact.

FAILURE TO IMPLEMENT BMD USAGE POLICY

In the 2016 and 2018 elections, disabled voters were deprived of the guarantee of a secret ballot that has always been afforded to non-disabled voters.  The SBE data from these elections demonstrates that the already inadequate SBE policy encouraging two voters in every precinct to use the BMD was a failure. 

In the 2016 general election, twelve of the twenty-four counties or county equivalents in Maryland had at least one precinct where only one voter used the BMD.  The SBE did not provide the data for precincts with zero voters using the BMD.  See Appendix A for details. 

The loss of the secret ballot by disabled voters was even worse in 2018 than it had been in 2016. Several primary elections were very close, which resulted in the recounts of votes. The BMD ballots were definitely identifiable during these recounts.  In the 2018 primary election, nine counties had polling places where only one vote was cast using the BMD. Once again, SBE did not provide the data for precincts with zero voters using the BMD.  See Appendix B for details.  

In the 2018 general election, nine counties had at least one precinct where only one voter used the BMD machine.  Nine counties also had at least one precinct where zero voters used the BMD machine.  See Appendix C for details.

CONCLUSION

The SBE violated Maryland Law by creating a segregated ballot for persons with disabilities.  It  also ignored the opinion of the Attorney General by creating policies that did not permit true randomization of the use of BMDs by both disabled and non-disabled voters.  Consequently, voters with disabilities who must use the BMD no longer have a secret ballot.  It is time for Maryland to go back to its practice of using one voting system for all of its citizens. 

Members of the National Federation of the Blind of Maryland urge the Maryland General Assembly to enact legislation that creates one voting system for all voters in Maryland when the contract for the ES&S BMD voting system ends in 2020.  The Supreme Court ruled that separate is not equal, sixty-four years ago.  It is time for Maryland to recognize this truth by eliminating discrimination against voters with disabilities.   If the ballots of any other protected class of citizen were identifiable, the General Assembly would surely insist that SBE revise its policies.  Blind and disabled voters deserve the right to equality in voting and a secret ballot, too.

Appendix A
2016 GENERAL ELECTION DATA

According to the Maryland State Board of Elections (SBE)[1] data, 12 of the 24 counties or county equivalents in Maryland had at least one precinct where only one voter used the BMD machine.  Those locations are:

County

pollname

Expressvote Ballot Cast[2]

Anne Arundel

Earleigh Heights VFD

1

Anne Arundel

Southern Middle School

1

Anne Arundel

Odenton Regional Library

1

Baltimore City

Engine House No. 2

1

Baltimore City

Murty Center- Poe Auditorium

1

Baltimore County

Kingsville Elementary School

1

Baltimore County

Hernwood ES Cafeteria

1

Baltimore County

Stembridge Community Center

1

Baltimore County

Middle River VFD Hall

1

Baltimore County

Long Green VFC Hall A

1

Baltimore County

Gunpowder ES Gym

1

Baltimore County

Pinewood ES Cafeteria

1

Baltimore County

Warren ES Gym

1

Baltimore County

Owings Mills HS Senior Café

1

Baltimore County

Wards Chapel Methodist Church Hall

1

Baltimore County

Church Lane ES M/P Rm

1

Carroll

Francis Scott Key HS Band Room

1

Charles

LaPlata High School Commons Area

1

Cecil

Bayview Elementary School S

1

Dorchester

North Dorchester MS Foyer

1

Dorchester

South Dorchester K-8 School

1

Harford

Old Post Road Elementary School

1

Howard

Northfield ES Cafeteria

1

Howard

Lisbon VFD Hall

1

Howard

Howard HS Gym

1

Prince George’s

Kettering Elementary School

1

Prince George’s

Greater Lighthouse Church

1

Prince George’s

Cesar Chavez Elementary SCHL

1

Prince George’s

Hyattsville Public Library

1

Washington

Washington County Technical HS

1

Washington

Williamsport High School

1

Wicomico

Faith Baptist Church Salisbury

1

Wicomico

East Side VFW Memorial Post 2996

1

Wicomico

Sharptown Firemens Memorial Bldg

1

Appendix B
2018 PRIMARY ELECTION DATA

According to SBE data, nine counties had polling places where only one vote was cast using the BMD.

County

pollname

Expressvote[3] Ballot Cast

Total Ballot Cast

Anne Arundel

Brooklyn Park Community Library

1

159

Anne Arundel

Northeast High School

1

205

Baltimore City

Murty Ctr-Poe Auditorium

1

71

Baltimore City

School #27 Rodgers Elem

1

76

Baltimore City

School #13 Tench Tilghman Elem

1

13

Baltimore City

School #7 Cecil Elem

1

54

Baltimore City

School #122 - Samuel Coleridge-Taylor Elem

1

7

Baltimore City

School #53 Brent Elem

1

373

Baltimore City

School #53 Brent Elem

1

214

Baltimore City

School #39 Dallas F. Nicholas Sr. Elem

1

132

Baltimore City

Enoch Pratt Free Library Pennsylvania Ave Br

1

67

Baltimore City

School #28 William Pinderhughes Elem

1

9

Baltimore City

School #4 Steuart Hill Elem

1

172

Baltimore City

School #4 Steuart Hill Elem

1

52

Baltimore City

Mary E. Rodman Rec Ctr

1

300

Baltimore City

Academy of Success

1

19

Baltimore City

Community Building

1

54

Baltimore City

School #235 Glenmount Elem/Mid

1

156

Baltimore City

Govans Boundary Umc

1

253

Baltimore County

Maiden Choice School - Gym

1

250

Cecil

5-5 Bayview Elementary School

1

332

Harford

Magnolia Elementary School

1

235

Harford

Edgewood Elementary School Cafeteria

1

137

Harford

Edgewood Recreation & Community Center

1

174

Harford

Emmorton Elementary School

1

431

Harford

Joppatowne High School

1

368

Harford

Aberdeen Senior High School Cafeteria

1

321

Harford

Forest Lake Elementary School

1

557

Howard

Running Brook Elem School - Cafeteria

1

255

Montgomery

Chevy Chase United Methodist Church

1

320

Montgomery

Stedwick Elementary School

1

429

Prince Georges

Harmony Hall Regional Center

1

509

Prince Georges

William Beanes Elem Sch

1

289

Prince Georges

Pgcps Bldg.

1

480

Prince Georges

Benjamin D. Foulois Creative & Performing Arts

1

100

Prince Georges

Northview Elem. Sch. Cafe. - A.

1

199

Prince Georges

Benjamin Tasker Middle Sch

1

175

Prince Georges

Waldon Woods Elem Sch

1

751

Washington

Washington County Technical Hs

1

119

Washington

Big Pool Community Hall

1

242

Appendix C
2018 GENERAL ELECTION DATA

In the 2018 general election, nine counties had at least one precinct where only one voter used the BMD machine.  Nine counties also had at least one precinct where zero voters used the BMD machine.

County

pollName

Expressvote Ballot Cast

Total Ballot cast

Anne Arundel

Annapolis Middle School

0

549

Anne Arundel

Roger "pip" Moyer Recreation Center

0

320

Anne Arundel

Roger "pip" Moyer Recreation Center

0

11062

Anne Arundel

Lindale Middle School

1

806

Anne Arundel

Severna Park Middle School

1

656

Baltimore City

Engine House #5

0

744

Baltimore City

School #16 Johnston Sq Elem

0

156

Baltimore City

School #55 Hampden Elem

0

49

Baltimore City

School #28 William Pinderhughes Elem

0

27

Baltimore City

School #122 Samuel Coleridge-Taylor Elem

0

41

Baltimore City

School #225 Westport Elem

0

276

Baltimore City

Engine House #51

0

130

Baltimore City

Engine House #42

0

599

Baltimore City

Grace United Methodist Church (040)

0

765

Baltimore City

Grace United Methodist Church (041)

0

822

Baltimore City

School #122 Samuel Coleridge-Taylor Elem

1

15

Baltimore City

Solo Gibbs Rec Ctr

1

466

Baltimore City

St Nicholas Church Hall

1

417

Baltimore City

Carroll Cook Rec Ctr

1

259

Baltimore City

Open Bible Baptist Church

1

330

Baltimore County

Ridge Ruxton School- Multi Purpose Rm

0

899

Baltimore County

Colgate Elementary School - Cafe

0

454

Baltimore County

Sussex Elementary School-Gym

0

765

Baltimore County

Warren Elementary - Gym

1

1199

Baltimore County

White Marsh Library-Meeting Room

1

187

Charles

St Ignatius Church Hall, Hilltop

0

650

Charles

Trinity Church Hall, Newport

0

1034

Charles

St Marys School Bryantown

1

194

Frederick

Mt Pleasant Ruritan Club

1

2212

Harford

Trinity Lutheran School

0

1510

Harford

Edgewood Elementary School Cafeteria

0

462

Harford

Joppatowne Elementary School

0

1207

Harford

Deerfield Elementary School

0

672

Harford

Abingdon Fire Hall

0

1274

Harford

Old Post Road Elementary School

0

1834

Harford

Church Creek Elementary School

0

2456

Harford

Highlands School

0

782

Harford

St. Mary's Episcopal Church Emmorton

0

323

Harford

Riverside Elementary School

0

889

Harford

Level Fire Hall

0

1661

Harford

Aberdeen Vfw 10028

0

534

Harford

Hickory Elementary School

0

818

Harford

Forest Hill Elementary School

0

1951

Harford

Mountain Christian Church

0

1288

Harford

Newport Terrace

0

1302

Harford

Forest Lake Elementary School

0

1541

Harford

Bel Air Elementary School Gym

0

987

Harford

Mt. Ararat Lodge

0

808

Harford

Bel Air Middle School

0

843

Harford

Red Pump Road Elementary School

0

1360

Harford

Bel Air High School

0

837

Harford

Southampton Middle School

0

2007

Harford

Wakefield Elementary School

0

995

Harford

C. Milton Wright High School

0

1267

Harford

Prospect Mill Elementary School

0

1029

Harford

Fountain Green Elementary School

0

1303

Harford

St. Matthew Lutheran Church-Great Hall

0

1188

Harford

Victorious Faith Fellowship Church

0

949

Harford

Jarrettsville Elementary School Cafeteria

0

1108

Harford

Youth's Benefit Elementary School

0

1154

Harford

Norrisville Elementary School

0

1297

Harford

North Bend Elementary School

0

1067

Harford

Veronica 'roni' Chenowith Activity Center

0

1245

Harford

Jarrettsville Library

0

723

Harford

North Harford Elementary Cafeteria

0

1193

Harford

Darlington Elementary School

0

717

Harford

Havre De Grace High School

0

768

Harford

Meadowvale Elementary School

0

1120

Harford

Havre De Grace Elementary School

0

859

Harford

Havre De Grace Middle School

0

1557

Harford

Abingdon Elementary School Gym

1

2118

Harford

Fallston Senior High School Cafeteria

1

1737

Harford

Ring Factory Elementary School

1

838

Harford

Harford Technical High School

1

1374

Harford

Dublin Elementary School

1

1270

Harford

North Harford High School

1

1123

Howard

Manor Woods Elem School - Cafeteria

0

852

Montgomery

Martin Luther King, Jr. Middle School

0

1256

Montgomery

Capt. James E. Daly, Jr. Elementary School

0

1074

Montgomery

Tilden Middle School/Gym

1

1207

Prince Georges

Green Valley Academy

0

669

Prince Georges

Dwight D. Eisenhower Middle School

0

489

Prince Georges

Melwood Church of the Nazarene

0

1045

Prince Georges

Harmony Hall Regional Center

1

686

Prince Georges

F.T. Evans Elem Sch - M/P Rm

1

132

Washington

Girls' Inc.

0

318

Wicomico

Wicomico High School - Cafeteria

1

552

Wicomico

East Side Vfw Memorial Post

1

314

 
 

[1]This chart was created from an SBE data export for each county with the ExpressVote (the trade name of the ballot marking device machine) filter applied. The cells indicate voting locations where only one vote was cast using the Ballot Marking Device.

[2] This chart does not include the precincts where no ballots were cast using the ExpressVote BMD. 

[3] This chart does not include the precincts where no ballots were cast using the ExpressVote BMD.