[MD-AtLarge] Second Annapolis Issue

[Sharon Maneki]

Hello all,

Here is the second Annapolis issue (note: after the problem is a picture of
the machine ballot and the hand marked paper ballot. Screen readers will
probably read it as blank). Read below.

*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: nfbmdsm at gmail.com <nfbmdsm at gmail.com>*



*Date:               January 2021*



*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, in 2016 and 2018, SBE limited
the use of this BMD by deploying only one device to each polling place.  The
SBE has further limited the use of these BMDs by requiring only two voters
per polling place to use the BMD. In the 2020 elections, due to COVID-19,
SBE encouraged voters to cast their ballots by mail. Those voters who chose
to vote in person were informed that they could cast their ballot either by
using the BMD or by using a paper ballot. 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.
In the 2020 general election, for in person voting, voters with
disabilities continued to face discrimination due to segregation. The
problem of loss of voter secrecy still remains because SBE policies are
arbitrary and inconsistent.

*IILLUSTRATION OF BOTH SAMPLE BALLOTS, SIDE BY SIDE *



*PROPOSED ACTION*

The Maryland General Assembly should enact legislation requiring the SBE to
create one voting system for all in-person voters in Maryland. 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 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 only two
voters per polling place to use them.  This policy forced even more voters
to mark their ballots by hand and increased the loss of the secret ballot
for blind and disabled voters.  In the summer of 2019, SBE attempted to
appease blind and disabled voters by changing the number of voters that
would be encouraged to use the BMD from two to five. This new policy also
allowed polling places to receive two machines, if desired, instead of one.
Jurisdictions could also apply to SBE in writing and request up to four
machines.  These policy changes will not eliminate segregation or the loss
of the secret ballot.



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 five voters to use the BMD
does not meet the definition of randomized polling procedures. We emphasize
again that this five-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 physical segregation of 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.  In the 2020 general election, this problem continued for disabled
voters who casted their ballot in person. The SBE data from the 2016 and
2018 elections demonstrates that the already inadequate SBE policy
encouraging two voters in every precinct to use the BMD was a failure.  Given
that numerous polling locations were unable to compel even two individuals
to use the BMD, the Board’s policy change of five users of the BMD per
polling location will likewise fail.

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.

     In the 2020 general election, nine counties had at least one precinct
where only one voter used the BMD machine during the early voting period. See
Appendix D1 for details. On election day itself, thirteen counties had at
least one precinct where only one voter used the BMD machine. See Appendix
D2 for details. Data was not available for the 2020 primary.

*CONCLUSION*

The SBE violated Maryland Law by creating a segregated ballot for persons
with disabilities.  It  also ignored the opinion of the Attorney General by
creating policies that did not permit true randomization of the use of BMDs
by both disabled and non-disabled voters.  Consequently, voters with
disabilities who must use the BMD no longer have a secret ballot.  Although
we brought these problems to the attention of SBE, the General Assembly,
and the Governor, they took no action. Blind and disabled voters will still
face segregation and the loss of the secret ballot in future elections.  It
is time for Maryland to go back to its practice of using one voting system
for all of its citizens who choose to vote in-person.
Members of the National Federation of the Blind of Maryland urge the
Maryland General Assembly to enact legislation that creates one voting
system for all in-person voters in Maryland.  The Supreme Court ruled that
separate is not equal 66 years ago.  It is time for Maryland to recognize
this truth by eliminating discrimination against voters with disabilities.
If the ballots of any other protected class of citizen were identifiable,
the General Assembly would surely insist that SBE revise its policies.  Blind
and disabled voters deserve the right to equality in voting and a secret
ballot, too.

*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. Everyday 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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