[MD-AtLarge] First Annapolis Issue

[nfbmd]

Subject:              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 at earthlink.net <mailto:nfbmd at 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. 

 

 

Sharon Maneki, Director of Legislation and Advocacy

National Federation of the Blind of Maryland

410-715-9596

 

The National Federation of the Blind of Maryland knows that blindness is not
the characteristic that defines you or your future. Every day we raise the
expectations of blind people, because low expectations create obstacles
between blind people and our dreams. You can live the life you want;
blindness is not what holds you back.

 

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