- Associated Press - Thursday, September 4, 2014

ANNAPOLIS, Md. (AP) - Maryland has failed to ensure the rights of blind and disabled people to vote privately and independently and must implement an online ballot-marking tool for November’s elections, a federal judge ruled Thursday.

In a case that could have ramifications for how other states provide absentee ballot access for the blind and disabled, U.S. District Judge Richard Bennett found that the state was in violation of the American with Disabilities Act.

Bennett held a three-day bench trial in Baltimore last month after the National Federation of the Blind sued the state.

“This court finds that 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,” Bennett wrote in a 33-page ruling.

Mark Riccobono, president of the National Federation of the Blind, said the order protects the fundamental rights of voters with disabilities by saying they must be able to mark an absentee ballot without being forced to request assistance.

“This ruling is a victory for Maryland voters with disabilities and puts election officials across the nation on full notice that full and equal access to voting includes access to absentee ballots, as well as to the voting equipment used at polling places,” Riccobono said in a written statement.

Bennett found that allowing the online ballot tool is a reasonable and necessary modification that would not constitute a fundamental alteration of the state’s voting program or impose an undue financial or administrative burden.

Nikki Charlson, deputy state administrator at Maryland’s elections board, said the tool will be ready for use in November’s election. David Paulson, a spokesman for the state’s attorney general, said the state is reviewing the order.

Attorneys representing the American Council of the Blind Maryland opposed the lawsuit, contending that the ballot-mark tool is not accessible and is vulnerable to hackers.

In July, the Maryland State Board of Elections fell one vote short of a supermajority needed to certify the tool. The state argued Maryland shouldn’t be forced to use an uncertified tool.

The council, SAVE our Votes Maryland and Verified Voting Foundation criticized the judge’s decision, because the election board didn’t certify the tool due to concerns with ballot security.

“Deploying this system as-is in November recklessly ignores important privacy and security risks,” said Pamela Smith, president of Verified Voting, in a written statement.

Maryland law allows absentee ballot voters to receive their ballots electronically, and the state allows any voter to vote by absentee ballot. The online ballot-marking tool enables voters to mark their ballots on a computer before printing them out and mailing them.

A survey conducted by the state elections board found that only Alaska and Delaware were making an online ballot marking tool available for voters with disabilities in the 2014 election. However, 16 states provide an electronic ballot marking tool to some overseas voters, according to the survey that received responses from about 30 states.

Bennett noted that the tool is not without some security risks. That’s because the voter’s computer transmits selections to the election board’s computer server. While voting selections are not stored on the server, a voter’s privacy could be invaded by a third party if the computer is infected with some form of malware. Still, Bennett cited testimony in the trial that those risks could be eliminated by marking and printing multiple ballots or using a different machine.

The judge also noted the state’s argument about the absence of certification by state officials. He wrote that a version of the tool was available in the 2012 election without any apparent incident.

“Those earlier uses of the tool appear to have been uneventful, and there has been no evidence of security breaches connected to that use,” Bennett wrote.

The Maryland General Assembly passed a measure in 2013 requiring that the tool be certified by the elections board before it could be used in further elections.

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