A group of Maryland voters is suing the state of Maryland, alleging that state policies require them to cast a segregated ballot.
The National Federation of the Blind, its Maryland affiliate and three blind registered Maryland voters — Marie Cobb, Ruth Sager and Joel Zimba — filed a lawsuit against the Maryland State Board of Elections in U.S. District Court on Thursday.
The lawsuit alleges the elections board is violating the Americans with Disabilities Act and other laws by maintaining a segregated system of voting that denies blind voters their right to a secret ballot and an equal voting experience.
At issue are the state’s policies for using ExpressVote ballot-marking devices – which can allow voters who are blind or have motor disabilities to use headphones, magnification, touchscreens and other features to independently cast ballots. The machines do not record votes directly but mark a paper ballot that is printed and scanned. ExpressVote paper ballots are a different size and shape than paper ballots filled out by hand, making those votes cast by Marylanders with disabilities immediately identifiable, advocates say.
From 2004 to 2016, all Maryland voters used the same electronic touchscreen voting machines, but new laws have since required paper records of all votes.
Groups such as the National Federation of the Blind argue that the state could now use ExpressVote ballot-marking devices to record all votes, resolving the segregated ballot issue, but the state board of elections has said acquiring additional machines is cost-prohibitive.
Instead, the board has voted in recent weeks to change election judge training and set a higher goal of five ExpressVote ballots per precinct in an attempt to anonymize the ballots cast using the devices.
A bill that would have required all voters to use the devices filed by Del. Nick J. Mosby (D-Baltimore City) and Sen. Clarence Lam (D-Howard) failed to pass the General Assembly last session, though the House version of the bill was referred to summer study. After the board’s most recent policy votes last week, both lawmakers said they will likely reintroduce the legislation in 2020.
In the complaint, the National Federation of the Blind notes that the 2007 legislation requiring the ballot paper trail required certification of a voting system that would “provide access to voters with disabilities that is equivalent to access afforded voters without disabilities without creating a segregated ballot for voters with disabilities.”
The complaint says a later opinion from the Maryland Attorney General’s Office warned the board it would violate the new law if it did not either use one accessible ballot marking system for all voters, ensure that hand-marked and electronically marked ballots were indistinguishable, or require a significant number of voters without disabilities to use the ballot-marking devices.
In the most recent election, use of the ballot-marking devices was low or non-existent in precincts across the state. Statewide, fewer than 1 percent of voters used a ballot-marking device. Only one ballot was cast using a device at 22 precincts and 66 precincts failed to require any voter to use the device, according to the lawsuit.
While the state board voted to encourage local boards to encourage at least five votes by ballot-marking device at each precinct in future elections, the plaintiffs have little confidence that policy will solve the problem.
The complaint notes that sparse use of the machines has created other issues. The plaintiffs in the case have experienced varying levels of difficulty in voting since the new process began.
Cobb said when she tried to vote at a Catonsville precinct in 2016, the poll worker did not know how to set up the ballot-marking device and she and her 13-year-old granddaughter set up the machine themselves, discovering that it was not plugged in.
“The plug was still wrapped up and affixed to the back of the machine, indicating that the BMD had not been used at all that day, even though Ms. Cobb arrived to vote in the afternoon,” the complaint states.
Once set up, Cobb called a National Federation of the Blind employee who taught her how to use the machine, the complaint states.
Sager was told in 2018 that the ballot-marking device at her Pikesville polling place was broken. She had to have a poll worker read the ballot aloud and mark her votes, though the worker failed to clearly communicate parts of the ballot, including the correct pronunciation of candidates’ names, according to the complaint. When the scanning device rejected that initial ballot for errors, Sager had to go through the process again with another poll worker “and was denied the right to vote privately and independently altogether.”
Zimba, who lives in Baltimore, was the only person to use the ballot-marking device at his polling place in 2018. Since election judges there know him by name, he has little to no confidence that his ballot is secret at all, according to the complaint.
Another concern that has kept Maryland’s current system in place is candidate complaints dating back to 2016. As the state was prepared to use ballot-marking devices for early voting, races that included more than seven candidates would have split the list of contenders between multiple screens, drawing complaints from down-alphabet candidates.
Advocates like the NFB have said those concerns are overblown. The ballot-marking devices won’t allow voters to cast a ballot without navigating through all screens of candidates for a given race.
In February, Jonathan Lazar, a University of Maryland professor who specializes in disability and technology research, told lawmakers that 19 other states and D.C. used the ExpressVote system in 2018, without significant issues.
The lawsuit seeks a court order requiring the state board to offer ballot-marking devices to all voters by default unless they specifically request to hand mark a paper ballot.
The state board did not immediately respond to the case’s filing on Thursday afternoon.
Mark Riccobono, president of the National Federation of the Blind, said the lawsuit was necessary to force the board to stop “tinkering with its separate and unequal solution and instead implement a policy that protects the rights of all voters and the secrecy of our ballots.”
Ronza Othman, a civil rights attorney and president of the National Federation of the Blind of Maryland, said state advocates have been lobbying for a meaningful change for years, to no avail.
“When we could not get the board to listen, we appealed to the state legislature, but the board fought us there too. Enough is enough. We are taking the board to court to protect the right of all Maryland voters, including the blind, to cast our ballots privately and independently,” she said in a statement.