Preserving the Private Vote? State Adopts New Policy on Accessible Ballots

Maryland’s standard voting ballot, left, and the ballot for persons with disabilities. Institute on Disability and Public Policy photo

When a Marylander votes using an accessible ballot-marking device, it’s not just the means by which they cast their vote that’s different, it’s the shape of their ballot too. So when only one or two voters use a ballot-marking device at a precinct, are their ballots still secret?

That’s the concern of blind voters and their advocates in Maryland.

A crowd of blind residents filled an Annapolis meeting room Thursday afternoon as the State Board of Elections voted on policies for using the ExpressVote ballot-marking devices – which can allow voters who are blind or have motor disabilities to use headphones, magnification, touchscreens and other features to independently cast ballots – in next year’s elections.

“For the last several years, we’ve been trying to get the Board of Elections to do something different. Because right now, people with different disabilities do not have a secret or private ballot,” said Ronza Othman, president of the National Federation of the Blind of Maryland.

Compounding the ballot secrecy issue is the variety of ways the ExpressVote devices are used at precincts around Maryland. In the 2018 General Election, ballot-marking devices were used for less than 0.1 percent of ballots cast in Harford County, but for about 7 percent of all ballots cast in Prince George’s County. The state average for using the ballot-marking devices was in Howard County, where .83 percent of voters used ExpressVote machines.

In 2018, the state had a policy that local precincts should aim to ensure that at least two voters used the ballot-marking device to attempt to anonymize ballots. That goal was not met at dozens of precincts in Harford County alone, and many precincts throughout the state saw only one ExpressVote ballot cast – making the voter’s identity and candidate choices entirely obvious.

It is an issue the state has grappled with for years.

At legislative hearings in February, voters who use the marking devices for accessibility raised laminated copies of the traditional paper ballots and the smaller sheets generated by the marking devices.

“It really allows their ballots to be distinguished from other individuals’ ballots,” state Sen. Clarence K. Lam (D-Howard) said during a hearing. “…Voters with disabilities thus are being denied their ability to vote in secret. …They now have a segregated ballot.”

Lam and Del. Nick J. Mosby (D-Baltimore City) introduced a bill this year that would have required all voters in the state to use the ballot-marking devices, ensuring that no voter’s ballot could be distinguished. The House version of the bill was referred for summer study by the Ways and Means Committee.

One concern was cost. The state would need about 18,000 ExpressVote machines to use them for every voter, but currently leases about 3,500. The increased cost was estimated at $12 million a year, with the state paying $6 million and counties paying the other half.

Lam and Mosby co-authored a letter to the elections board this week. They asked the state board to, at a minimum, ensure that the ExpressVote system was in “significant use” by the general public in all voting precincts in 2020 and for updates on state training policies regarding use of the machines.

Looking ahead, the lawmakers also urged the state to consider finding a new voting system that either requires all voters to use an accessible option or find a ballot-marking device that generates a paper ballot identical to the ones used by the general public.

On Thursday, the board opted to continue use of the state’s existing leased machines, with a goal to ensure that at least five ballots are cast by the devices at each precinct, an effort to increase use of the machines and further anonymize ExpressVote ballots.

Nikki Charlson, the deputy administrator at the State Board of Elections, said she has contacted ExpressVote maker Election Systems & Software about increasing the number of leased machines in Maryland. Pending other states’ bids, there aren’t enough existing machines to accommodate universal use in Maryland, but the state could add at least some additional machines by 2020, she said.

Othman was skeptical about whether the board’s new policies would make a difference. With so many precincts registering few or no ExpressVote ballots in 2018, she was unsure the number could be dramatically increased.

Othman said she was also concerned that the board did not come up with standard language to be used by election judges to make clear that all voters can choose to vote on the ballot-marking devices.

Board members asked the state office to work with local boards on language that would not sway voters toward either ballot-marking machines or paper ballots next year.

In February, Jonathan Lazar, a University of Maryland professor who specializes in disability and technology research, told lawmakers that 19 other states and the District of Columbia used the ExpressVote system in 2018, with far fewer issues.

“Why? Because they either present [voting options] neutrally – use paper or ExpressVote? – or they encourage voters to use ExpressVote or they require ExpressVote,” he said.

In their letter this week, Lam and Mosby said they hoped the state board landed on policies that would avoid the need for additional legislation next year.

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