By Glynis Kazanjian, Glynis@marylandreporter.com
ANNAPOLIS—The State Board of Elections may move to implement an online ballot marking system for all absentee voters in time for this year’s elections, depending on an opinion from the attorney general. But some voter advocacy groups worry about the potential for fraud.
The move to online ballot marking comes after a 2010 federal mandate that required states to provide overseas voters and active military personnel with access to online absentee ballot applications.
The attorney general’s opinion, requested by Sen. Edward Kasemeyer, would say whether or not the elections board should seek federal and state certification for the online ballot marking tool. The board staff is currently developing the device through a Department of Defense grant.
Certification would test the system and look for vulnerable areas, including where fraud or manipulation could occur. All whole voting systems are federally required to receive certification, but the state board argues the ballot marking tool would be only part of a voting system.
Group worries about voter fraud
Some critics, including the voter integrity group SaveOurVotes, say that without proper federal and state certification, there is a high risk for voter fraud and a potential breach of security of voter information.
“Voting system certification requirements exist to ensure that voting equipment conforms to consistent standards that safeguard our elections against tampering and error,” SaveOurVotes Co-Director Rebecca Wilson wrote in an April 30 letter to Attorney General Douglas Gansler. “Waiving certification requirements for such an undeveloped and untested system as this would set a dangerous precedent.”
The U.S. Election Assistance Commission (EAC) offered an informal opinion on the matter in February at the request of State Elections Board Administrator Linda Lamone. The commission staff said that an online ballot marking wizard did not meet the definition of a voting system and therefore “was not considered eligible for testing and certification under the EAC program.”
The Election Assistance Commission is supposed to have a five-member board, but it hasn’t had a quorum since December 2010 and currently has no board members serving.
Federal requirements for military and overseas
In early 2010, the federal Military and Overseas Voter Empowerment Act (MOVE Act) required states to provide active military personnel and overseas voters with an electronically downloadable online ballot. The state elections board implemented the change as required, but went beyond the scope of the mandate by allowing all domestic voters to request absentee ballots over the Internet.
As a result, almost 80% of 11,375 absentee voters that received their 2010 ballots online were “domestic, civilian voters,” according to an elections board memo.
Some critics charge the expansion to all absentee voters occurred without a formal board vote. The board did vote to approve the absentee ballot application, 4-0, on Feb. 25, 2010, but minutes from January and February 2010 board meetings do not indicate a distinction was made between MOVE Act absentee voters and in-state absentees.
A state regulation the board published March 12, 2010 only refers to “voters authorized to vote under the Uniformed and Overseas Citizens Absentee Voting Act.”.
But state board deputy administrator Ross Goldstein said staff used the word “voter” and it was not limited in any way.
“The board was informed of our plans and had two different opportunities to vote on the concept of sending ballots to voters via the online delivery system,” Goldstein said.
AG opinion due in June or July
Attorney general spokesman David Paulson said the opinion should be issued in June or July. If the attorney general finds the state does not have to go through certification, the board will then decide whether to limit the online ballot marking option to three classes — active military personnel, overseas voters and disabled voters — or to open it up to all domestic voters, as they did with the online absentee ballot delivery option in 2010.
Other critics of the online ballot marking tool, including Montgomery County activist Holly Joseph, also claim the board did not vote on the use of the absentee ballot marking tool for the 2012 presidential elections.
There was no record of a vote in the monthly meeting minutes, but Goldstein said the vote happened, according to an audio tape of the meeting reviewed by staff.
“I can confirm that a vote was taken to approve the absentee voting materials, including the absentee ballot application, during the September 2011 meeting,” Goldstein said. “It was unanimously approved.”
Possible gateway for online voting
SaveOurVotes and other critics also contend the move to allow absentee voters to mark their ballots online will eventually become a gateway for statewide online voting. Maryland’s policy of no excuse absentee voting by mail allows any registered voter to request an absentee ballot without providing a reason for needing one.
“I believe that most activists suspect that it will now be very easy for the State Board of Elections to go from offering online voting processes to a subset of voters to offering it to all,” said Mary Kiraly, a former Democratic member of the Montgomery County Board of Elections.
Currently, all absentee voters can download an absentee ballot online, which they mark by hand and mail to their local board of elections. There, the ballot is duplicated into a scannable ballot and compared with the voter’s original hand written ballot by a bi-partisan election review team.
The proposed online ballot marking tool eliminates the need for staff to create a matching scannable ballot. Instead, the ballot would be created through the ballot marking wizard and embedded with a barcode that included the voter’s selections made online.
The local board staff would then print out the embedded ballot and scan it through new printers, already purchased with the DOD grant funds, which could read the barcode. The bi-partisan review team would then compare the mail-in ballot with the ballot created online.
Board distinguishes between voting online and marking ballot
Goldstein said it is important for people to understand the distinction between voting online and using a ballot marking wizard to expedite an internal procedure.
“Nobody’s voting online,” Goldstein said. “People are marking ballots through the wizard, but there is no actual voting that’s taking place online. This is a ballot delivery system and what’s really being added to it is just a way to help improve the ballot marking and the ballot duplication process.”
“It would be one thing if we said we were going to use this barcode and rely on this barcode on its own as part of the voting process, but that’s not what we’re saying,” Goldstein said. “We’re saying we’re going to use this barcode to duplicate the ballot, to make the ballot duplication part faster, easier and more accurate.”
Sen. Roy Dyson, D-St. Mary’s, who chairs the Senate’s elections law subcommittee, introduced a bill (SB1078) this year that would have permitted the state board to use the online ballot marking tool without certification requirements. The bill passed the Senate 43-4, with four Montgomery County Democrats opposing it. The bill failed to pass the House.
GOP prefers traditional method
State Republican Party Executive Director David Ferguson said he prefers the traditional method of voting.
“I am very suspect of any voting that does not take place at the ballot box,” Ferguson said. “People have been expressing concern about the electronic processes that are currently being used. A paper ballot that has been given with a proper ID has been the standing and best practice across the country. I would encourage Maryland to move toward those best practices and not away from them.”
Robert Walker, chairman of the State Board of Elections, resigned in December 2010 but remains a member of the board. Walker agreed to stay until a replacement had been appointed, but according to Goldstein, a replacement still hasn’t been named.
The board also voted to allow Bobbie Mack, a Democrat, to continue as vice chair. The board’s bylaws state that the vice chair is supposed to be the opposite political party of the chair after the current vice chair’s term ends.