Sen. Cheryl Kagan: Vote By Mail? The Devil’s in the Details

The mail-in ballot used in Rockville's city elections last year. Photo by Jadine Sonoda

On April 10, Gov. Larry Hogan approved the Maryland State Board of Elections’ recommendation that our June 2 primary election be conducted as a vote-by-mail (VBM) in light of the COVID-19 pandemic.

Most Marylanders will vote from home. But the board allowed between one and four Election Day voting locations in each jurisdiction to accommodate Marylanders with disabilities; those who need to replace a lost ballot; or people who are registering to vote.

These decisions were the best of impossible options while we shelter at home, in a historic presidential election year.

Although the framework of Maryland’s 2020 elections has been established, there remain a surprising number of complicated and important issues that the state elections board must address before the primary (and possibly, November’s general election).

Five states (Colorado, Hawaii, Oregon, Utah, and Washington) have been using VBM for years.

Through trial and error, these states’ officials have improved their processes. Rather than starting from scratch, let’s learn from them.

Tracking and reporting election results by precinct

All five of these experienced states report results by precinct.

Sen. Cheryl C. Kagan (D-Montgomery). Photo by Danielle E. Gaines.

Protecting our elections from potential fraud is essential to our democracy and to voter confidence in the outcome. Tracking data within precinct boundaries allows our election authorities to locate and address irregularities.

In the recent Wisconsin elections, thousands of ballots were missing. In 2018, one precinct in Baltimore City neglected to distribute the second page of a ballot. It is more difficult to identify an anomaly, whether due to human error or
intentional deception, when results are reported only at the county level. Sorting ballots by precinct prepares the ballots for recounts and efficient post-election audits.

It is essential that we implement precinct-level reporting for June’s mailed ballots and develop plans for November. Community groups, the press, activists, and candidates look to this data. If the Maryland State Board of Elections won’t set this as a statewide requirement, it should support any of our 24 local boards that choose to do this in their own jurisdictions.

Protecting voter privacy

Voter privacy is a cherished right that we take for granted, but it could be compromised in Maryland this year.

Under current law, each county has the choice of mailing ballots to voters with either two or three envelopes.

This year, by executive order, the state is handling — statewide — all printing and mailing and is using only two envelopes. One envelope would be used to send the voter a ballot, and the other would be used to carry the completed ballot.

When the envelope is opened to be counted, staff and observers could learn how that person voted, because a person’s identifying information and signature would be printed directly on the outside envelope. This could weaken our privacy and hypothetically lead to the buying and selling of votes.

There is a simple solution to ensure confidentiality. Voters would place their completed ballot into an inner envelope or privacy sleeve with no identifying information. This would then be placed inside the return envelope with the voter’s information. This process would separate an individual’s identity from the vote.

From deep red states like Texas to bright blue New York, nearly half of all states already have statutes that require privacy envelopes to keep absentee ballots anonymous. With our journey into Vote-By-Mail, it is essential that we guarantee the same level of privacy that we experience when voting in-person.

Fixing voter errors rather than tossing out ballots

Before mailing back completed ballots, voters must sign an oath that affirms their identity. The presence of this signature must be confirmed before the vote can be counted.

When we shift from roughly 5% of mailed-in ballots to, likely, about 95%, we can safely assume that thousands of mail-in ballot envelopes will lack signatures. Maryland law dictates that ballots without associated signatures must be rejected.

In the past, many local elections boards contacted voters to get this omission corrected. As I wrote in Maryland Matters last month, there must be a consistent statewide procedure for notifying voters and allowing them to appeal a rejected ballot.

Nineteen states (including all five states with current VBM procedures) have methods to “cure” missing signatures. Timelines vary — Illinois and Oregon allow a corrected ballot to be mailed to the County Clerk’s office 14 days after Election Day; Washington State permits cured ballots to be submitted in a 21-day window after the election.

Maryland’s State Board of Elections should review laws in all 19 states and establish a statewide solution. This would likely entail promptly notifying voters (via a mailed notice, as well as email, text, or phone call) and allowing them a chance to fix their oversight.

Minimizing risks from online ballots

Maryland is one of just three states that allows any voter to request that an absentee ballot be delivered to them electronically. Ballots downloaded over the Internet and printed at home cannot be fed into a scanner.

In the past, a bipartisan team manually copied the voter-printed version onto a machine-readable ballot. This labor-intensive process was conducted by two individuals sitting close together with one reading the voter’s original selections and the other marking a new ballot. And a campaign representative, activist, or journalist could be looking over their shoulders.

None of this close proximity is possible during the current COVID-19 crisis. Not only is this process time-consuming, but it is subject to fraud or human error. In preliminary conversations, state elections board members have envisioned having just one person handling this process with alleged transparency through a video stream. The board and their staff will need to craft a detailed process that is consistent, transparent, and assures an accurate outcome.

Because of the risks, costs, and demand on staff and finances, Maryland should limit Internet delivery of ballots to those who are either unable to receive or mark a mailed ballot. More than 8,000 Montgomery County voters have already requested Internet delivery.

Elections officials should email those who request an Internet ballot and suggest that they reconsider. By using the
postage-paid return VBM envelope, voters will be assured that the ballot fed into the scanner to be counted will be the very same ballot they marked.

Marketing and outreach

When Maryland first shifted to touch-screen voting, there was extensive community outreach. Machines were brought to senior centers, libraries, and community fairs. When new devices were purchased, there was, again, a diligent education process.

Our state and local election boards should commit to electronic and other communications to prepare Maryland citizens to cast their ballots and return them through the postal service or in drop-off boxes in each jurisdiction.

This will prove to be an important and prudent investment in our democracy and our future.

— CHERYL C. KAGAN

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