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Government & Politics

On Ballot Privacy Issues, House Lawmakers Look to 2022 for Big Change

Del. Nick J. Mosby (D-Baltimore City) is joining the race for Baltimore City Council president. General Assembly photo.

Maryland lawmakers expressed dismay and optimism Tuesday about efforts to guarantee secret ballot access for disabled voters in the state.

While policies for the 2020 election – which are the subject of a lawsuit by blind voters – are already set, the state’s current elections equipment contract expires in 2021 and could allow for a big change.

“It’s too late right now to do much of any changes for 2020 because the elections are right around the corner, but I’m looking forward to seeing what my colleagues come up with for next session to help resolve this issue long-term,” said Del. Alonzo T. Washington (D-Prince George’s).

Washington chairs the Election Law Subcommittee of the House Ways & Means Committee, which referred the issue of equal access to secret ballots to a summer study last legislative session.

The issue of ballot segregation and secrecy has been an issue in Maryland since 2016, when the state implemented a paper ballot voting system.

While the vast majority of voters hand-mark 8 ½ by 11-inch ballots, voters who are blind or have motor disabilities can use an ExpressVote ballot marking device, which provides headphones, magnification, touchscreens and other features to independently cast ballots. The machines do not record votes directly but mark a paper ballot that is a different size – 4 ½ by 14 inches – and list only the candidates the voter selected, making those votes cast by Marylanders with disabilities immediately identifiable, advocates say.

In 2013, the attorney general’s office said the state board would have to adopt one of three policies to avoid creating a segregated ballot for voters with disabilities:

  • require all voters to use a ballot marking device;
  • require identical ballots for voters who cast ballots with a marking device; or
  • ensure that enough voters without disabilities use ballot marking devices to anonymize those ballots cast by voters with disabilities.

The board chose the third option with varying amounts of success.

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.

At 22 precincts in Maryland, only one ballot was cast using a marking device; at 66 precincts, zero ballots were cast using a device.

The State Board of Elections voted in June on policy changes intended to increase use of the machines. In 2020, precincts will be encouraged to have at least five voters use a ballot marking device and election judges’ training on how to operate the machines will be more robust. Election judges will also use neutral language – without mentioning disability or accessibility as they have in the past – that could lead to more voters opting for the devices: “You have two ways to mark your ballot: either by hand or with an electronic device. Which do you prefer?”

But advocates doubt that the policies will resolve the issue. The National Federation of the Blind filed a lawsuit in August seeking a court order to require the use of ballot-marking devices to all voters by default unless they specifically request to mark a paper ballot.

In court filings, the state has argued that the new policies will address past issues and that voters with disabilities have not been denied meaningful access to voting in person by secret ballot and that requiring all voters use marking devices is an unreasonable change.

Maryland currently has a lease for about 3,500 ballot marking devices from ES&S, but would need about 18,000 to implement universal use. The cost was estimated last year at about $12 million, with the state and counties splitting the cost.

The Election Law Subcommittee on Tuesday zeroed in on the state’s current contract with ES&S, which expires in 2021. While ES&S is the country’s largest voting technology manufacturer, two other companies – Hart Intercivic and Dominion Voting – offer ballot marking devices that produce ballots indistinguishable from paper ballots. Both of those devices also eschew use of a barcode to record a voter’s ballot, something which the ES&S system does. The U.S. House of Representatives passed a bill in June that would prohibit the use of barcodes on ballots and some states have banned the use of barcodes because of security concerns.

While Del. Jessica Feldmark (D-Howard) asked legislative analysts about the cost to shift to a new voting system, costs in the election technology industry are notoriously vague.

“I asked them what their costs were and they didn’t tell me,” Stanford Ward, a Department of Legislative Services analyst, told the subcommittee.

Ward said he was going to try to get more information about comparative costs of voting systems through national organizations.

Feldmark said the committee should work toward an overhauled voting system in 2022 as a goal, while still expressing concern that new policies for 2020 may not be adequate enough.

“It’s both understandable and disappointing. I don’t think we should be looking for democracy deferred,” she said.

Del. Nick J. Mosby (D-Baltimore City), who introduced legislation last session that would have required all voters in the state to use the ballot-marking devices, said he is working on a new bill for 2020 that would aim to set minimum requirements for voting technology in the state’s next procurement.

“Voting is a fundamental privilege as an American. It’s critically important that all voices matter, whether its disability, race, religion or gender, are heard,” he said after Tuesday’s briefing. “As a state, we should hold that in the highest regard.”

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On Ballot Privacy Issues, House Lawmakers Look to 2022 for Big Change