Moreover, the SBE was required to run accessibility studies, which it assigned to the University of Baltimore (UB). Working with the National Federation of the Blind (NFB), the specialist at UB found problems--several of them critical--and suggested improvements. The worst problems remained unresolved.
In January 2014, the SBE began consideration of certifying OBM. Among the regulations, the system had to be secure, protect the privacy of the ballot, and be accessible . At public meetings, the SBE heard from computer security experts and a cyber security law expert, along with members of the public, with the EI grassroots always a strong presence among them.
The SBE offered an online public demonstration of the system. Several members of another advocacy organization, the American Council of the Blind Maryland (ACBM), attempted to use the system and couldn't. The SBE made further changes and once again displayed the system to the public. It remained inaccessible to the ACBM testers even after the changes. A major problem was that they could not verify that their paper ballots were marked as they intended -- exactly the same problem they already have with traditional absentee ballots.
SBE staff were anxious to use OBM in the upcoming June primary, where members of both parties often run unopposed because, among other reasons, Maryland is such a gerrymandered state. Most winning candidates were virtually assured of a November victory.
But in April 2014, the last SBE meeting that could determine whether OBM could be used in the primary, there was no vote when it became clear that certification did not have the support of a super-majority of Board members. There are five political appointees on the SBE: three representing the governor's party and two from the minority party. All Board actions require a super-majority of four of the five votes. But three members simply didn't feel ready to certify it. Use of OBM in June was tabled.
End of story? Far from it . In May 2014, the NFB filed suit in federal court claiming that Maryland was in violation of the Americans with Disabilities Act by failing to make absentee voting accessible. To file a claim under this Act, plaintiffs must show that they are being denied access to a public benefit when a reasonable accommodation exists that would make it accessible to them. NFB filed an injunction to force use of the OMB in the primaries, which would be held on June 24.
A one-day hearing was held early in June. The SBE argued that according to the 2002 Help America Vote Act (HAVA), absentee voting does not have to be accessible. Judge Richard D. Bennett denied the injunction but wanted the issue resolved before the November election and thus scheduled what is referred to as a "rocket docket" to rush the decision through before September.
The judge declared that the "why" was missing from their argument. Why did the SBE not certify it? Why was no vote taken? Was the SBE derelict in its duty or were its concerns legitimate? Judge Bennett wanted to hear from experts on the security of the system.
ACBM and three of its members joined together with two election integrity organizations, Verified Voting and SAVE our Votes, to intervene in the suit with pro bono representation from the DC law firm of O'Melveny & Myers. The group sought to block the use of MD's online ballot-marking system, claiming that it is not secure, private, nor accessible to blind voters. The judge allowed them to participate in the trial but did not alter the schedule or formally rule on the intervention, labeling them "putative intervenors." During the trial it became clear that none of the plaintiffs who were seeking to force the use of the online ballot-marking system had ever tried to use it themselves so they had no first-hand knowledge of how accessible it would be to them.
After a 3-day bench trial in August 2014, the judge ruled that the state of Maryland was violating the plaintiff's right to absentee voting and forbade the state from continuing to do so. But he acknowledged that legitimate concerns about Maryland's OBM system had surfaced in the trial and therefore it should be made available for the November 2014 election only to special-needs voters and for that election only.
The judge denied the claims of the "putative intervenors'" but allowed for their testimony to remain in the court record, a giant step for the grassroots.
The SBE filed a motion in September 2014 to appeal the decision. Its appellate brief, filed late in January 2015, argues that forcing the state to use an uncertified voting system is not a reasonable accommodation but rather represents a fundamental change in Maryland's voting program. SBE contends that it has not certified the OBM system because of concerns with its security and privacy and the judge should not brush aside these critical considerations.
The appeal is still underway . The momentous upshot, of which the Old Line State is quite aware, is that this decision will have repercussions throughout the nation . Compare the impact of the Crawford v Marion County Election Board decision in 2008 that the voter ID requirement is constitutional. There was a veritable deluge of that requirement countrywide after Election 2010, by whatever means employed, swept in a large Republican majority in the House, increased its presence in the Senate, and exponentially multiplied its state-level representation.
The same contagion will spread use of OBM nationwide . Courts will be busy with it, at every level, I imagine. The privacy and security of ballots marked over the Internet is the cardinal issue.
For this reason, should we keep mum on this news so that it doesn't catch on? Or, whatever we do, will the case ascend to the Supreme Court?
It is so easy to go from OBM to 100 percent Internet voting. A lead-pipe cinch. It's already on the table.
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