Please ensure Javascript is enabled for purposes of website accessibility
‘This really should have been an unnecessary lawsuit,’ said Andrew D. Levy, a partner at Brown Goldstein Levy LLP. ‘But it wasn’t.’ (The Daily Record/Maximilian Franz)

State ‘moving forward’ with online ballot tool

State officials say they are prepared to implement an online ballot-marking tool for this year’s general election, in the wake of a U.S. District Court ruling issued Thursday.

Nikki Charlson, deputy administrator at the Maryland State Board of Elections, said the controversial method for filling in an absentee ballot will be ready for use by Friday, Sept. 19, in order to comply with the 2009 federal Military and Overseas Voting Empowerment Act. That law requires states to make their ballots available for overseas military 45 days before the election — Sept. 20 for this year’s Nov. 4 general election.

“We are prepared to implement the online ballot-marking tool,” Charlson said. “It’s almost ready to go.”

Charlson’s comments came shortly after Judge Richard D. Bennett ruled in favor of the National Federation of the Blind in its suit against the board of elections, which had twice failed to gain the supermajority required to certify the method.

While opponents raised questions about the online tool’s security and accessibility, Bennett said that failure to implement it would violate two federal laws.

“This court finds that the plaintiffs have been denied meaningful access to the state’s absentee ballot voting program as mandated by the Americans with Disabilities Act and the Rehabilitation Act,” the 33-page opinion said.

“This court finds that allowing the plaintiffs to use the online ballot marking tool is a reasonable and necessary modification to the state’s program,” Bennett wrote, “and further finds that the use of such an aid in the 2014 general election would not constitute a fundamental alteration of that program and would not impose and undue financial or administrative burden.”

Mark Riccobono, president of the Baltimore-based National Federation of the Blind, called the ruling “an important game-changer for voters with disabilities” and said the tool allows those voters to cast their ballots independently and be able to ensure that the votes are cast as intended.

“This tool opens up new areas of privacy and accessibility that people with disabilities have never had,” Riccobono said.

A partner in the NFB’s law firm, Andrew D. Levy of Brown Goldstein Levy LLP, said the tool will allow voters with disabilities to “vote with confidence and independently as anyone else.”

“This really should have been an unnecessary lawsuit,” Levy said. “But it wasn’t.”

The decision did what the five-member Maryland State Board of Elections was unable to do on two occasions this year.

In April and again in May, three of the five members voted to certify the online ballot marking tool so that it could be used during this year’s elections. However, certification requires approval of a supermajority, or four members of the five-member board.

Maryland developed the online ballot marking tool under a $630,000 federal grant and first used it in 2012. A year later, the General Assembly passed legislation requiring the board to certify the tool before using it in the 2014 election.

It was not immediately clear if Bennett’s order overrides the legislature’s certification requirement, but Charlson said the board plans to move ahead as if it did.

“That’s our understanding of what the order does,” Charlson said. “The attorney general is reviewing the order and we’ll take our direction from them. Right now, we’re moving forward with this.”

Mark, print, mail

The tool is not an online voting system, but rather a way of obtaining and electronically marking a ballot.

It allows disabled voters and members of the military serving overseas to access a blank ballot through the Internet. The voter must electronically mark the ballot, then print a paper copy and mail it to the board of elections where he or she is registered.

No record of the ballot or the vote is maintained on the website for the tool, according to state elections officials.

The American Council of the Blind of Maryland and other public interest organizations opposed the ballot marking tool, saying it was not accessible to all voters with disabilities and questioned whether the system was secure from hacking.

Andrew S. Han, an attorney with the Washington law firm O’Melveny & Myers LLP representing that coalition, was not immediately available for comment following the ruling.

“It fails to protect the fundamental right to vote,” Han said in a July interview, adding that the online tool was not accessible, not private and “insecure, easily hacked and subject to malware and fraud.”

The possibility of improvements to the system led Bennett to limit his ruling to this November’s general election.

“Further developments of the tool or new and more effective technologies could render the current tool obsolete and make further use unreasonable,” Bennett wrote. “The relief, as fashioned by the court, allows plaintiffs to participate in the upcoming election while still preserving the state’s choice in how to make absentee ballot voting accessible to individuals in the future.”

Charlson said the current system was ready in advance of the June primary election but wasn’t used due to the certification vote.

Despite the failure to certify and the lawsuit, the ballot marking tool system did have the support of professional staff at the Maryland State Board of Elections as well as three of the five board members.

“We’ve been using the system since 2012,” Charlson said. “It’s safe to say we were ready and had been using it and believe in it and we continue to be confident in the system.”