Sen. Cheryl Kagan: Don’t Overlook COVID-19 Impact on Our Democracy

Montgomery County elections officials checking for possible duplicate ballots in 2018. Photo by Cheryl C. Kagan

The COVID-19 outbreak has caused us to focus on the catastrophic impact on our health and our economy. We must not, however, overlook its implications for our democracy.

On Thursday, the Maryland State Board of Elections (SBE) will make recommendations to the governor regarding our 2020 elections. The governor has the sole authority to make the final decision as to how we will vote this year.

At last week’s SBE meeting, there was a preliminary decision to conduct the June 2 primary election completely by mail. In light of this pandemic, Congressman David Trone and others argue that this makes a great deal of sense. As in many policy issues, there are other specifics that need urgent attention.

Ensuring safety: Should there be in-person voting centers? Our dedicated poll workers, who are mostly retirees, are especially vulnerable to the coronavirus. The safety of the space for all involved must be considered. To protect voters, screens and ballot-marking devices would need to be cleaned with disinfectant wipes.

It’s unclear whether a school, faith institution, or library that has been closed for months would reopen to host elections. Having at least a smattering of sites conveniently located on mass-transit routes could allow for the new Election Day registration law to be exercised and would accommodate voters who have lost their ballots and those with disabilities.

Guaranteeing access for all voters: If the entire election were to be conducted by mail, many voters with disabilities could be deprived of either their franchise and/or their privacy. This could provoke litigation. According to a lawyer with Disabilities Rights Maryland, an absence of ballot privacy would be a violation of the Americans with Disabilities Act, the Help America Vote Act, and best practice in states that currently utilize Vote-By-Mail (VBM). Virginia already offers curbside voting for those with disabilities. With many Marylanders needing some sort of accommodation in order to cast a private vote as required by law, access issues shouldn’t be easily dismissed.

Safeguarding voter privacy: In recent elections, Maryland’s absentee ballots have been returned with the voter’s signature and other identifying information on the back of the envelope. Inside is the marked ballot, which could allow a poll worker to access a voter’s preferences.

This is fundamentally contradictory to our valued secret ballot. SBE must commit to including a second envelope or another delivery device that keeps our electoral choices separate from our identifying information in line with Maryland law and best practices in other states.

Combating fraud: To ensure voter confidence in the election results, we must know whether the ballots are cast legally. Signature verification is used in states like Oregon and Washington, which have been using vote-by-mail for many years. Election officials conduct in-depth training to check whether the signature on the envelope matches the signature in a voter’s record.

There should be a warning on the envelope that casting an unauthorized vote is a felony that will be prosecuted. This should discourage roommates, neighbors, or family members from marking and returning a ballot.

Over the summer, to clean up our state voter files, the boards of elections should also send a test mailing. Those of us who have run for office and sent campaign literature know the enormous number of bad addresses in our databases. It is imperative that we verify and update our records.

Counting emailed ballots: Perhaps the most arduous and complex task is duplicating the ballots that are electronically delivered to voters and returned by snail mail. Separate from the serious security concerns about who has actually voted these ballots is the fact that these home-printed papers can’t be read by our scanners. Each sheet’s preferences must be manually transferred to an official ballot.

Two workers of different parties (generally, one Democrat and one Republican) sit close together. One reads the voter’s marked choices out loud; the other copies those choices onto an official ballot. Looking over their shoulders, ensuring accuracy, could be a candidate representative, journalist, or other interested person.

Washington State insists that publicly observable ballot processing is vital. There is simply no way of doing this at a COVID-19 social distance while ensuring confidence in the accuracy of the results. Reducing the number of ballots that need to be hand-copied (as done in other states) will be critically important. Another significant challenge will be finding large and accessible spaces and hiring enough people in each jurisdiction willing to assist.

So, what’s the answer?

The COVID-19 pandemic seems to be mandating a scenario where “perfect is the enemy of the good.” If printing companies simply can’t deliver sufficient quantities of ballots, our choices will be limited.

There’s no time to update our voter list before the primary elections. But we need to prepare for the possibility of a November vote-by-mail. A ballot envelope printed with fraud warnings that can be separated from the voter’s identifying information must be part of the provided document. Maryland should obtain machines that sanitize and open envelopes to protect our election workers.

Only voters who have no other choice should be allowed to get their ballots delivered electronically. The risks and costs are simply too high to make this option widely available. The SBE website must make a clarifying distinction between the two methods, with a strong preference for an absentee ballot to be mailed… and returned (postage-paid) for scanning.

As with provisional and unclearly marked ballots now, there is a process for notifying the voter and appealing a rejected ballot. This must be modified for a vote-by-mail scenario so that no one is unfairly disenfranchised.

The General Assembly enacted Election Day registration last year. Unless there are in-person voting sites, this won’t be an option in a vote-by-mail scenario. But, at last week’s meeting, the SBE supported extending the voter registration deadline for the April special congressional election. It should do the same for the June primary election and, if applicable, to November’s general election.

Bottom line? Vote-by-mail solves some problems posed by the Coronavirus but creates many others. Since Maryland has almost no experience in vote-by-mail, our election boards will face a very steep learning curve.

One expert described vote-by-mail as “a manual process that relies on a large workforce that must be healthy and working in tight quarters for long days over weeks at a time.” Protecting our democracy in the face of this pandemic deserves urgent attention in this historic election year.

— CHERYL C. KAGAN

The writer, a Democrat, represents Rockville and Gaithersburg in the Maryland Senate. She is vice chair of the Education, Health, and Environmental Affairs Committee, which includes election law among a dozen other issues.