Maryland Attorney General Opinion 97 OAG 032

32 [97 Op. Att’y

ELECTION LAW

VOTING SYSTEMS – STATUTORY CONSTRUCTION – STATUTE

REQUIRING CERTIFICATION OF VOTING SYSTEMS DOES

NOT APPLY TO ABSENTEE-BALLOT-MARKING WIZARD

THAT IS NOT CONNECTED TO, OR A COMPONENT OF,

THE VOTING SYSTEM

August 23, 2012

The Honorable Edward J. Kasemeyer

Maryland Senate

The State Board of Elections (“SBE” or “State Board”),

working under a U.S. Department of Defense grant, is developing

a ballot-marking technology to be used with SBE’s online ballot-

delivery system for certain absentee voters. SBE proposes to

make the technology available to military and overseas civilian

voters who are covered by the Uniformed and Overseas Civilian

Absentee Voting Act of 1986, 42 U.S.C. §§ 1973ff to 1973ff-6

(“UOCAVA”),1 and who choose to receive their ballots by

electronic transmission, as well as to domestic absentee voters

with disabilities for whom the technology is needed to vote

privately and independently. You have asked for our opinion on

whether SBE may implement the ballot-marking technology

without first certifying it under a State law requiring the

certification of “voting systems.” See Md. Code Ann., Election

Law (“EL”) § 9-102.

It is our opinion that the State Board may implement the

ballot-marking wizard for military and overseas civilian voters

without obtaining certification under § 9-102.2 As explained

1

UOCAVA applies to an “absent uniformed services voter” and to

an “overseas voter.” See 42 U.S.C. § 1973ff-6. In the first category are

active duty members of a uniformed service or the merchant marine, or

their spouses or dependents, who by reason of the member’s duty are

absent from the place of residence where the service member or spouse

or dependent is otherwise qualified to vote. Id., § 1973ff-6(1). The

second category includes an “absent uniformed services voter” whose

active duty takes the voter overseas, as well as certain U.S. citizens

residing outside the United States. Id., § 1973ff-6(5).

2

Unless otherwise noted, all statutory references refer to the

current version of the Election Law Article reflected in the 2010

Replacement Volume of the Annotated Code of Maryland and the 2011

Supplement and 2012 Cumulative Supplement.

Gen. 32] 33

below, the evaluation and certification process prescribed in § 9-

102 expressly applies to a “voting system,” which is defined by

statute as “a method of casting and tabulating ballots or votes.”

EL § 1-101(xx); see also COMAR 33.09.01.01B(4)(a) (defining

“voting system” as “all or any component of any system for

casting and tabulating ballots or votes”). The proposed tech-

nology—commonly referred to as a ballot-marking “wizard”—

allows voters to mark selections electronically on a downloadable

ballot before it is printed, but it does not include a capability

either to “cast” or “tabulate” votes. The ballot wizard, therefore,

does not itself meet the definition of “voting system.” Nor, in our

opinion, does the ballot wizard modify a voting system such that

certification would be required under § 9-102. Although the

ballot-marking wizard performs a function that is part of the

voting process for the absentee voters who opt to use it, it does

not interface or interact with the State’s certified optical-scan

voting system. The statute does not unambiguously extend to

stand-alone voting devices that, like the ballot-marking wizard, do

not interact with the voting system that records and tabulates

votes.

Maryland law does not require any specific evaluation

process for a stand-alone device that is not part of the voting

system. Certification under a voluntary federal program, which

Maryland law has made mandatory for voting systems, is not

available for an online ballot-marking tool regardless of whether

it qualifies as a “voting system” under Maryland law.

Accordingly, an interpretation of § 9-102 that would require

certification of the ballot tool as a “voting system” is not a matter

of more, versus less, testing, or of applying a higher performance

standard in preference to a lower one. Instead, the real

consequence of that interpretation would be to prohibit use of the

ballot wizard altogether, regardless of its performance or potential

benefit to overseas military and absentee voters.

Ballot-marking tools similar to that being developed by SBE

will be available to absentee voters in other states and to

Maryland military and overseas voters using the Federal Write-In

Absentee Ballot. Because we do not see that Maryland law

plainly requires a different result, we believe that a reviewing

court would defer to the State Board’s reasonable interpretation of

the law and regulations it administers and uphold the SBE’s

decision that the ballot wizard may be used for overseas military

and absentee voters without certification under § 9-102.3

3

Our conclusion that certification of the proposed ballot wizard is

not mandated by § 9-102 applies also to its proposed use to assist

voters with disabilities to vote privately and independently. However,

we note that, as to these voters, there may be other considerations

unrelated either to the ballot-marking tool or State certification

(continued . . .)

34 [97 Op. Att’y

I

Background

Development of State Voting Systems Certification

The State Board and its predecessor agency, the State

Administrative Board of Election Laws (“SABEL”), have for

more than 40 years regulated the specifics of Maryland’s voting

process. SABEL was created in 1969 at a time when mechanical-

lever voting machines were required statewide for voting in

polling places, see 1955 Md. Laws, ch. 701, with paper ballots

allowed under certain conditions. See, e.g., former Article 33,

§ 14-1 (1971 Repl. Vol.). Detailed statutes in the Maryland Code

specified the capabilities and functionality that all voting

machines were required to demonstrate, but State law included no

provision for a central certifying authority or a program to

evaluate specific types of voting machines. See id., § 16-3.

SABEL was first given central certifying authority in 1975,

when electronic voting system technology was introduced in

Montgomery County in the form of electronically tabulated

punch-card ballots. The county’s acquisition of a punch-card

system was made contingent on SABEL’s approval of the

“particular voting system,” including “the form of ballot

arrangement, the nature of the punch card used, the method of

marking ballots, and any sorting or counting devices. . . .” 1975

Md. Laws, ch. 877, § 2 (codified at former Article 33, § 16A-1

(1976 Repl. Vol.)). Because a punch-card system does not

operate in the same way as a mechanical lever system, many

Code provisions regulating the lever machines were unsuited to

the new system. For this reason, presumably, the General

Assembly also directed SABEL to promulgate rules and

regulations governing the use of the new punch-card system,

including procedures for using the system in polling places on

Election Day and canvassing votes following the election. Id., §

16A-1(d).4

requirements that may limit the State Board’s ability to offer the device

to non-UOCAVA voters. Specifically, there is a question whether

State law alone would authorize the electronic transmission of absentee

ballots to non-UOCAVA voters, or whether other State or federal law

relating to voters with disabilities would support that practice. These

separate and very different issues are beyond the scope of your question

regarding certification of the ballot wizard, and so we do not address

them in this opinion.

4

“‘Canvass’ means the entire process of vote tallying, vote

tabulation, and vote verification or audit, culminating in the production

and certification of the official election results.” EL § 11-101(c)(1). In

the context of absentee voting, “the ‘canvass’ includes the opening of

(continued . . .)

Gen. 32] 35

SABEL’s role in approving new voting systems was

expanded in 1978, when State certification became a precondition

of the acquisition and use of new voting systems by all local

boards of elections. 1978 Md. Laws, ch. 347. The same

legislation included for the first time a definition of “voting

system,” which was defined as “a method of casting and

tabulating ballots or votes.” Id. (codified at former Article 33, §

1-1(a)(19) (1983 Repl. Vol.)). This definition has remained

unchanged since 1978. Compare id. with EL § 1-101(xx).

The initial standards for voting system certification gave

SABEL broad discretion to decide what kind of evaluation to

conduct and what level of system performance to demand. For

example, the 1978 statute required only that SABEL “assure that

elections are conducted with equipment best designed to: (1)

[p]rotect the secrecy of the ballot; (2) [p]rotect the security of the

voting process; (3) [c]ount and record all votes accurately; and (4)

[p]rotect all other rights of voters and candidates.” Former

Article 33, § 16B-2(a) (1983 Repl. Vol.). These basic standards

have been retained in current law, though others have been

added.5

In 1998, the General Assembly undertook a reorganization

and revision of Article 33 in accordance with the

recommendations of the Commission to Revise the Election

Code. 1998 Md. Laws, ch. 585 (then codified at former Article

33, § 9-102(d) (1997 Repl. Vol., 1999 Supp.)). SABEL was

replaced by the newly created State Board of Elections, which

was given enhanced supervisory authority with respect to the

local boards of election and “all persons involved in the elections

process.” Id., § 2-102(a). Additionally, the State Board was

charged with a duty to “maximize the use of technology in

election administration, including the development of a plan for a

any envelope accompanying an absentee ballot and the assembly and

review of absentee ballots in preparation for vote tallying.” EL § 11-

101(c)(2); see also COMAR 33.11.04 (absentee ballot canvass

procedures), .05 (grounds for rejecting ballots).

5

In addition to these general performance standards, the statute set

forth a nonexclusive list of factors that SABEL was to consider in

deciding whether to approve a particular system, including the

commercial availability of the system and its components and

replacement parts, the efficiency of the system, the likelihood of

mechanical breakdown, its ease of understanding and convenience for

the voter, the timeliness of its tabulation and reporting of election

returns, the potential for verifying the vote count, and the cost of

implementation. Former Article 33, § 16-B-2(b)(2) (1983 Repl. Vol.).

These factors have been carried forward into current law, in

substantially the same form, as “considerations” for certification. See

EL § 9-102(e); see also infra note 10.

36 [97 Op. Att’y

comprehensive computerized elections management system.” Id.,

§ 2-102(b)(7). The 1998 Act also added to the State’s cert-

ification program the requirement that voting systems be

evaluated against voluntary federal standards.6 Id., § 9-102(c)(2).

Although the 1998 Act enhanced the State Board’s authority

in some respects, it did not require the statewide use of a single

voting system, with the result that, as of 2000, voters in Maryland

were using at least four different technologies to record and

tabulate their votes, as well as a number of different models for

each type of voting system.7 After the 2000 presidential election,

and the problems revealed by the Florida recount and other voting

system issues nationally,8 Governor Glendening created a Special

Committee on Voting Systems and Election Procedures to make

recommendations on how to improve the voting systems

technology used in Maryland. Executive Order 01.01.2000.25.

Legislation enacted in the following session directed the State

Board, in consultation with the local boards of election, to select a

uniform statewide voting system for use in polling places and a

system for use in canvassing absentee ballots. 2001 Md. Laws,

ch. 564. The statute also added a requirement that the voting

system be capable of creating a paper record of votes cast in the

event of a recount and included provisions regarding the

6

The Act included as a standard for certification that the voting

system has been: “(i) [e]xamined by an independent testing laboratory

that is approved by the National Association of State Election

Directors; and (ii) [s]hown by the testing laboratory to meet the

performance and test standards for electronic voting systems

established by the Federal Election Commission. . . .” Former Article

33, § 9-102(c)(2)(i)-(ii) (1997 Repl. Vol., 1999 Supp.).

7

For the 2000 presidential elections, four different types of voting

systems and six different models were in use at polling places in

Maryland. Montgomery County used a punch-card system; Baltimore

City a direct-recording electronic system; Allegany, Dorchester, and

Prince George’s Counties mechanical lever machines; and, in nineteen

counties, three different models of optical scan systems. See, e.g.,

Department of Legislative Services, Office of Policy Analysis,

“Review of Election Administration in Maryland,” at 25-26 (Nov.

2001). For absentee voters, Montgomery and Allegany Counties used a

punch-card system; Dorchester County used paper ballots; and

Baltimore City and the twenty remaining counties used one of six

different models of optical scan systems, from three different vendors.

See Special Committee on Voting Systems and Election Procedures in

Maryland, “Report and Recommendations,” at 110-11 (Feb. 2001).

8

See Bush v. Gore, 531 U.S. 98, 104 (2000) (“This case has shown

that punch card balloting machines can produce an unfortunate number

of ballots which are not punched in a clean, complete way by the voter.

After the current counting, it is likely legislative bodies nationwide will

examine ways to improve the mechanisms and machinery for voting.”).

Gen. 32] 37

allocation of costs to acquire and operate the voting system as

between the counties and the State. Id. SBE implemented the

statewide procurement in phases, beginning in 2001 with requests

for proposals to supply four counties with a direct-recording

electronic voting system for use in polling places and an optical-

scan system for absentee voting. By 2006, these two systems had

been acquired and deployed statewide.

Maryland’s Current Voting Systems Requirements

The current version of § 9-101(b) of the Election Law

Article requires that “[t]he State Board, in consultation with the

local boards, shall select and certify a voting system for voting in

polling places and a voting system for absentee voting.” The

voting system now certified for absentee voting is the Model ES-

2000 optical-scan system. See, e.g., COMAR 33.10.11 (voting

system requirements and procedures for the Model ES-2000). An

optical-scan voting system like the ES-2000 is a paper-based

voting system that “records votes, counts votes, and produces a

tabulation of the vote count from votes cast on paper cards or

sheets.” 20059 Voluntary Voting System Guidelines, Vol. I, ¶

1.5.2.1 (p. 10).

Under § 9-102(c) of the Election Law Article, the State

Board has a duty to “periodically review and evaluate alternative

voting systems” for certification. State Board regulations

governing the State certification program provide, “[t]he vendor

of a voting system may apply to the State Board for evaluation

and certification of the system for use in the State.” COMAR

33.09.03.02A. The vendor is required to identify the voting

system by “specify[ing] clearly the specific equipment, hardware,

firmware, and software for which certification is sought.” Id.,

33.09.03.02B(1).

9

The 2005 Voluntary Voting System Guidelines are a set of

federally developed “specifications and requirements against which

voting systems can be tested to determine if the systems provide all of

the basic functionality, accessibility and security capabilities required

of these systems.” Election Assistance Commission, “Voluntary

Voting System Guidelines,” available at http://www.eac.gov/testing_

and_certification/voluntary_voting_system_guidelines.aspx (last visited

Aug. 16, 2012). The 2005 guidelines are the third iteration of voluntary

federal standards and were developed by the Election Assistance

Commission pursuant to the Help America Vote Act. Id. The 2005

guidelines include accessibility standards, which the General Assembly

has adopted under certain circumstances. See, e.g., EL § 9-102(f)(3)

and (h)(1). Previous versions of the voluntary federal standards were

developed by the Federal Election Commission and issued as “voting

system standards” in 1990 and 2002.

38 [97 Op. Att’y

Section 9-102(d) sets out the standards that the State Board

must apply when reviewing a voting system for certification:

The State Board may not certify a voting system

unless the State Board determines that:

(1) the voting system will:

(i) protect the secrecy of the ballot;

(ii) protect the security of the voting

process;

(iii) count and record all votes accurately;

(iv) accommodate any ballot used under this

article;

(v) protect all other rights of voters and

candidates;

(vi) be capable of creating a paper record of

all votes cast in order that an audit trail is

available in the event of a recount, including

a manual recount; and

(vii) provide a voter-verifiable paper

record . . . ;

(2) the voting system has been:

(i) examined by an independent testing

laboratory that is approved by the U.S.

Election Assistance Commission; and

(ii) shown by the testing laboratory to meet

the performance and test standards for

electronic voting systems established by the

Federal Election Commission or the U.S.

Election Assistance Commission; and

(3) the public interest will be served by the

certification of the voting system.

EL § 9-102(d).10 Additionally, the statute requires SBE to

evaluate a voting system for compliance with the requirements of

the Americans with Disabilities Act, 42 U.S.C. §§ 12101 to

10

In addition to these performance or system-capability standards,

the statute also directs the State Board to consider other factors in

making its certification decision, including the commercial availability

of the system, cost of implementation, likelihood of malfunction,

efficiency of the system, convenience and ease of understanding for the

voter, timeliness of tabulating and reporting of election returns, the

accessibility of the system for voters with disabilities, and “any other

factor that the State Board considers relevant.” EL § 9-102(e).

Gen. 32] 39

12213, and the Help America Vote Act, 42 U.S.C. §§ 15301 to

15545. See EL § 9-102(f) through (h). In general, the standards

contained in § 9-102 allow SBE considerable discretion to decide

what sort of evaluation is appropriate and what level of

performance will be deemed acceptable. The notable exception is

the requirement in subsection (d)(2), which makes conformance

testing by an accredited laboratory to federal voting system

standards a necessary precondition to State certification.

Provisions of Federal Law Relating to Voting Systems

The Help America Vote Act of 2002 (“HAVA”) was the

federal response to the widespread dissatisfaction with voting

system performance in the 2000 presidential elections. That

legislation required states to upgrade their voting systems to meet

certain minimum requirements, provided federal grants for that

purpose, and created the U.S. Election Assistance Commission

(“EAC”) to administer the grant program and to provide technical

guidance to help states comply with the Act. The federal

minimum standards imposed by HAVA apply to all voting

systems used in federal elections. These standards include certain

requirements regarding “overvotes,”11 auditing of election results,

and accessibility for persons with disabilities. See 42 U.S.C.

§ 15481(a).

HAVA defines a “voting system” to mean:

(1) the total combination of mechanical,

electromechanical, or electronic equipment

(including the software, firmware, and

documentation required to program, control,

and support the equipment) that is used—

(A) to define ballots;

(B) to cast and count votes;

(C) to report or display election results; and

11

An “overvote” occurs when one votes for more than the

maximum number of selections allowed in a contest. A HAVA-

compliant voting system that is used in polling places must notify

voters of overvotes and the consequences of overvoting and afford

voters the opportunity to correct overvotes and verify or change their

selections before the ballot is cast. 42 U.S.C. § 15481(a)(1)(A). An

exception is made for paper ballot voting systems, punch card voting

systems, or central count voting systems—including a central count

system for mail-in absentee ballots—which may meet the foregoing

requirements by establishing a voter education program about the effect

of overvoting and giving instructions on how to correct errors with a

replacement ballot. 42 U.S.C. § 15481(a)(1)(B)(i)-(ii).

40 [97 Op. Att’y

(D) to maintain and produce any audit trail

information; and

(2) the practices and associated documentation

used—

(A) to identify system components and

versions of such components;

(B) to test the system during its

development and maintenance;

(C) to maintain records of system errors and

defects;

(D) to determine specific system changes to

be made to a system after the initial

qualification of the system; and

(E) to make available any materials to the

voter (such as notices, instructions, forms, or

paper ballots).

42 U.S.C. § 15481(b). HAVA’s broad definition of a voting

system is directly relevant to voting systems in all states for

purposes of state compliance with its requirements as to

overvotes, auditing capability, and accessibility standards.

However, the statute does not impose testing or certification

requirements on any state, even for the limited purpose of

determining whether a state’s voting system is HAVA-

compliant.12

Section 202 of HAVA directs the EAC to adopt voluntary

voting system guidelines and to provide for the testing and

certification of voting system hardware and software. 42 U.S.C. §

15371(a). The guidelines provide a baseline against which voting

systems can be tested. See supra, n.9. EAC certification, in turn,

gives an assurance that a voting system, if deployed and operated

correctly, will perform to this standard. However, conformance

12

Because the EAC certification program uses the HAVA definition

of “voting system,” see 2005 Voluntary Voting System Guidelines,

Vol. I, p. A-19, that definition also serves to identify what functions

should be reviewable under the voluntary federal certification program.

However, apart from the capability to “cast and count votes,” none of

the other functions in the HAVA definition is expressly referenced in

Maryland’s definition, though some of them (such as reporting of

election results and creation of an audit trail) are included by

implication insofar as no system can be certified by the State Board

without these capabilities. See EL § 9-102.

Gen. 32] 41

testing under the EAC program is purely voluntary for the states,

as is the selection of which voting system guidelines, if any, a

state’s voting system should meet. Neither HAVA nor any other

federal law mandates the testing or certification of voting

systems.

The EAC certification program is limited in other respects as

well. Most importantly for our purposes, EAC certification is not

available for individual components of a voting system. Rather,

the manufacturer submits an entire voting system for certification

and identifies the various specific configurations of system

components that it wishes to certify. See, e.g., EAC, “Voting

System Testing and Certification Program Manual,” v.1.0, at 18

(eff. June 1, 2011) (“An EAC certification is an official

recognition that a voting system (in a specific configuration or

configurations) has been tested to and has met an identified set of

Federal voting standards.”). Although federal voting system

guidelines do include testing standards for different parts or

subsystems of a voting system and for testing interfaces between

components, the certification attests only to the overall

performance of the specific configuration or configurations that

the manufacturer submits. See, e.g., 2005 Voluntary Voting

System Guidelines, Vol. I, at 7 (“The certification number applies

to the system as a whole and does not apply to individual system

components or untested configurations.”). And because the EAC

only certifies voting systems, it is effectively limited to private

manufacturers, inasmuch as governments typically do not design

and manufacture entire voting systems.

Military and Overseas Absentee Voters

Federal law mandates certain actions by the states to

facilitate absentee voting opportunities for military personnel and

overseas civilian voters. In 2009, Congress passed the Military

and Overseas Voter Empowerment (“MOVE”) Act, which

amended UOCAVA to require, among other things, that states

provide a method for transmitting blank absentee ballots to

UOCAVA voters electronically and by mail for any election for

federal office, 42 U.S.C. § 1973ff-1(a)(7), and allow those voters

to designate which transmission method they would prefer. Id., §

1973ff-1(f)(1). “To the extent practicable,” each state must

ensure that its transmission procedures “protect the security and

integrity of absentee ballots” and that “the privacy of the identity

and other personal data [of the voter] is protected throughout the

process of such transmission.” Id., § 1973ff-1(f)(3).

Consistent with this federal mandate, Maryland offers

electronic transmission of blank ballots to UOCAVA voters via

an online absentee-ballot-delivery system. For the 2012 general

election, a UOCAVA voter requesting electronic delivery will be

notified by e-mail that his or her absentee ballot is ready and will

42 [97 Op. Att’y

be provided a link and ballot-tracking number that gives access to

the system. See, e.g., Letter of Linda Lamone, Administrator,

SBE, to Sen. Brian Frosh, at 2-3 (Feb. 6, 2012). From the SBE

website, using the ballot-tracking number and other required

information, the voter will be able to download and print a blank

ballot, ballot instructions, a form containing the ballot oath, a

return envelope, and other voting materials. Id. The completed

ballot, together with the signed ballot oath, must be returned by

regular mail (or by an authorized agent) to the appropriate local

board of elections for review, inspection, and tabulation during

the absentee ballot canvass. See generally COMAR 33.11.04.

A paper ballot that is printed and returned by the absentee

voter cannot be read by the optical-scan voting system, which

requires heavier paper and printed “timing marks” to allow the

scanner to read and record the voter’s selections. As a result, a

bipartisan duplication team must copy, by hand, the voting

selections marked on the paper ballot onto a scan-ready ballot

card. See COMAR 33.11.04.08; see also EL § 9-303(b)(8)

(requiring guidelines on absentee voting to include “review of

voted ballots and envelopes for compliance with the law and for

machine tabulation acceptability”). This “duplicate” ballot is then

fed into the optical scanner where the votes are recorded and

tabulated.

The Proposed Ballot-Marking Wizard

The ballot-marking wizard at issue here is being developed

for the Federal Voting Assistance Program (“FVAP”), a unit

within the Department of Defense that was established to assist

uniformed services personnel and overseas civilians in exercising

their right to vote in federal elections. See generally R. Michael

Alvarez, et al., “Military Voting and the Law: Procedural and

Technological Solutions to the Ballot Transit Problem,” 34

Fordham Urb. L.J. 935 (April, 2007). The FVAP solicited grant

proposals under 10 U.S.C. § 2358 to develop and implement

technologies to make voting more accessible for UOCAVA

voters. See 10 U.S.C. § 2358(a)(2)(B) (authorizing the Secretary

of Defense to engage in research and development projects of

“potential interest to the Department of Defense”). In 2011, SBE

applied for and received a grant of $653,719 to develop an online

voter-registration system for use by UOCAVA voters and to make

certain enhancements to the State’s online ballot-delivery system,

including the development of a ballot-marking wizard. See “DoD

Awards Grants for State & Local Military/Overseas Voting

Systems” (Nov. 3, 2011), available at http://www.fvap.gov/

global/news/2011news/nr29-2011.html (last visited Aug. 14,

2012); see also Maryland State Board of Elections, Technical

Proposal, “Online Voter Registration & Ballot Marking and

Counting: An Adaptable and Open Source Solution” (“Grant

Gen. 32] 43

Proposal’), at 3, available at http://www.fvap.gov/resources/

media/maryland.pdf (last visited Aug. 21, 2012).

Under the current process, absentee voters receive their

ballots by mail, fill them out by hand, and return them by mail.

As described in SBE’s Grant Proposal, the ballot wizard would

give military and overseas civilian voters the option to download

the ballot from the SBA’s website, make voting selections on the

voter’s computer, review a summary screen showing those

selections, and print out a ballot with the selections marked.

Grant Proposal at 7. The wizard would notify the voter of any

overvote or undervote and give her the opportunity to correct her

ballot accordingly. Id. The wizard would also generate and print

onto the ballot a barcode encapsulating the voter’s selections. Id.

at 8-9. After the voter returns her completed ballot, canvassers

scan the barcode to generate a duplicate ballot, as opposed to

duplicating the ballot by hand, as is the current practice. Id. at 7-

9. The Grant Proposal explains the expected benefits of the ballot

wizard and barcode:

This wizard will improve the accuracy and

readability of the voter’s voted ballot as it will

be designed to prevent overvotes and other voter

errors, decrease the likelihood that an election

official has to determine the intent of the voter,

and increase voter satisfaction with the voting

process. These benefits will lead to increased

ballot return and acceptance rates.

* * *

[The barcode] has two significant benefits over

the current process of manually duplicating

ballots. First, it serves an important safeguard

during the canvassing process and improves the

accuracy of the counting process by reducing the

risk of transcription error when manually

duplicating a ballot. It also improves the

efficiency of the canvasses conducted by local

election officials by replacing a manual process

with a primarily automated process with a

manual verification.

Grant Proposal at 7, 8-9. A further goal of the proposal was to

create a “generic, system neutral interface” that could be easily

adapted to different voting or election systems and easily shared

with other jurisdictions. Id. at 4.

44 [97 Op. Att’y

II

Analysis

Whether the certification requirements of § 9-102 of the

Election Law Article extend to the State Board’s proposed use of

a ballot-marking wizard is, at its heart, an issue of statutory

construction. In construing a statute, the “cardinal rule” is to

ascertain and give effect to the actual intent of the Legislature.

Gardner v. State, 420 Md. 1, 8 (2011). The starting point in this

analysis is to consider the ordinary, plain meaning of the statutory

language. Id. If this language is unambiguous and consistent

with the apparent purpose of the statutory scheme, the inquiry into

legislative intent is normally at an end. Id. at 8-9. A court

interpreting a statute will “neither add nor delete language so as to

reflect an intent not evidenced in the plain and unambiguous

language of the statute” and will not “construe a statute with

forced or subtle interpretations that limit or extend its

application.” Id. (internal quotation marks omitted).

According to its plain language, § 9-102 applies to a voting

system, the characteristics and overall performance of which

must, for certification, meet certain statutory criteria. “Voting

system” is elsewhere defined as “a method of casting and

tabulating ballots or votes.” EL § 1-101(xx). We believe the

General Assembly, by its use of the term “method,” meant to

cover any technological approach to the job of “casting and

tabulating” votes, whether it be based on punch-cards, optical-

scans, or any other type of platform that would later be developed.

This reading is confirmed by the historical development of the

State certification program, where State-level certification began

as a legislative response to the problem of managing the use in

different counties of new and various voting system technologies

in place of the comparative uniformity that had existed

previously, when all counties used mechanical-lever systems in

accordance with the rules set out in the Maryland Code.

Given this apparent purpose to include the complete array of

developing technologies, it is unremarkable that neither the

definition of “voting system,” nor the certification statute itself,

undertakes to list the particular functions or components that must

be included in a voting system. The multiplicity of voting

systems in place at the time would have made it exceedingly

difficult to identify which components are necessarily embraced

by the term “voting system.” Instead, the State definition

identifies a voting system only with regard to the core functions

that would be expected of any technology used to conduct an

election: the casting and tabulating of votes.

In practice, the specification of which components are

considered part of the voting system is a responsibility of the

manufacturer that requests State or EAC certification because

Gen. 32] 45

certification attaches only to the particular configuration of

hardware and software that the manufacturer or vendor submits

for testing. See, e.g., COMAR 33.09.03.02 (vendor’s application

must specify the equipment, software, and firmware for which

certification is sought). No form of certification is available for

an isolated, stand-alone device that is something less than a voting

system. In addition, a separable system component does not

receive any approval for use except in the precise configuration of

an entire system in which it has been tested. Any device or

component, if removed from the tested configuration, is not

“certified.” In short, the only type of certification available under

§ 9-102 is for the entire voting system operating as a system.

The legislative intent to create an evaluation process

reserved for complete voting systems is reflected in the

capabilities, performance standards, and other considerations

contained in the statute, which are all exclusively system-level

requirements. See EL § 9-102(d). The performance of individual

components or subsystems is not even addressed by § 9-102.

Accordingly, we can discern in § 9-102 no intent to require

certification for any particular device—including a ballot-marking

device—except insofar as the device may itself qualify as a voting

system or be used as a component in a voting system.13

Consistent with this understanding of the basic scope of § 9-102,

we consider each of these possibilities in turn.

A. The Ballot-Marking Wizard is Not a Voting System

The ballot-marking wizard does not in our view perform

either of the core functions of a voting system under Maryland

law: the “casting or tabulating” of votes. “Cast,” in the voting

sense, means “[t]o formally deposit (a ballot) or signal one’s

choice (in a vote),” Black’s Law Dictionary 246 (9th ed. 2009), or

“to deposit (a ballot) formally or officially[.]” Hawaii State AFL-

CIO v. Yoshina, 935 P.2d 89, 92 (S. Ct. Haw. 1997) (quoting

Webster’s New Int’l Dictionary (2d ed. 1959)). Even in its more

common meaning, the word “cast” connotes motion. Merriam

Webster’s Collegiate Dictionary (10th ed. 1993) (“to cause to

move or send forth by throwing”). Although dictionary

13

Federal law reflects a similar understanding that the word

“system” implies some level of integration or common operation. For

example, the 2005 federal guidelines define an “electronic voting

system” to be “one or more integrated devices that utilize an electronic

component for one or more of the following functions: ballot

presentation, vote capture, vote recording, and tabulation. . . .”

Voluntary Voting System Guidelines, Appendix A: Glossary, at A-10

(defining “electronic voting system,” (emphasis added)), available at

http://www.nist.gov/itl/vote/upload/VVSG-Volume-IAppendixA.pdf (last

visited Aug. 16, 2012).

46 [97 Op. Att’y

definitions do not resolve the interpretive issue before us, we

believe that, on balance, they marginally favor a reading of

“casting” that is focused on the process of submitting the ballot or

vote for recordation and not the process of marking the ballot.

In some contexts, the difference between marking selections

on a ballot and casting a ballot is clearly delineated. HAVA, for

example, requires that voters be afforded an opportunity to

“verify . . . the votes selected” and correct any errors before the

ballot is “cast and counted.” 42 U.S.C. § 15481(a)(1)(A)(i); see

also 2005 Voluntary Voting System Guidelines at A-19 (defining

“voted ballot” as a “[b]allot that contains all of a voter’s

selections and has been cast”). In the context of absentee voting,

courts have even more clearly delineated the distinction between

marking one’s selections on a ballot and “casting” a ballot or

vote. See, e.g., Maddox v. Board of State Canvassers 149 P.2d

112, 115 (Mont. 1944) (observing that under Montana election

law “[n]othing short of the delivery of the ballot to the election

officials for deposit in the ballot box constitutes casting the

ballot” and “[i]t is not the marking but the depositing of the ballot

in the custody of the election officials which constitutes casting

the ballot or vote”); see also Wakulla County Absentee Voter

Intervenors v. Flack, 419 So.2d 1124, 1126 (Fla. App. 1982)

(noting that all absentee votes were “cast” in the election

supervisor’s office for purposes of statute allowing absentees to

request assistance).

The term “casting” is also frequently used to encompass

both the marking and the depositing of the ballot, as when, for

example, a voter’s right to privately cast a ballot is invoked. See,

e.g., EL § 9-102(f)(2) (voting system shall ensure private casting

of votes by persons with disabilities); see also State ex rel. Stokes

v. Brunner, 898 N.E. 2d 23, 28 (Ohio 2008) (noting that “electors

who deposit their absentee ballots at a polling location during the

absentee-voting period have cast their ballots under the plain

language of [the Ohio observer statute] by marking them and

formally depositing them”). But while “casting” is sometimes

shorthand for both actions together, marking a ballot without

officially submitting it for counting does not, by itself, amount to

“casting” a ballot or vote. Marking is precisely what the proposed

ballot wizard does, and no more.

The difference between the vote recording and tabulating

that a voting system performs and the ballot marking that a

UOCAVA voter performs through the use of the wizard is not

merely linguistic; marking selections on an absentee ballot and

officially recording one’s vote are distinct processes. The

proposed ballot wizard lacks any capability for sending,

receiving, or officially recording voted ballots. Nor does the

online ballot-delivery system enable voters to submit their ballots

electronically for direct tabulation by another device or system. A

Gen. 32] 47

technology that included either of these two abilities might well

bridge the gap between the two processes and thereby constitute a

method for casting a ballot or vote. But the ballot wizard does

neither. Voters using the online wizard can only cast their ballots

in the same way that all other absentee voters do, by mailing the

ballot to the appropriate local election board.

The fact that the ballot wizard generates a barcode that

captures the voter’s selections does not alter our conclusion. The

sole purpose of the barcode is to ease the process of ballot

duplication that occurs during the canvassing process. Instead of

the current system of hand-marking the absentee’s selections onto

the ballot card so that it can be fed into the optical-scan system,

election workers handling a paper ballot marked with the wizard

will scan the barcode to automatically generate the duplicate

ballot card. But using either method to mark the downloaded

ballot, the duplicate card is checked against the visible marks the

voter made on the paper ballot, which remains the official record

of his or her vote. If the ballot generated from the barcode does

not match the visible record the voter has marked on the original

paper she has submitted—where, for example, a voter using the

ballot wizard later uses a pen to change her selection after printing

the ballot—the visible record is used to create the duplicate and

the barcode is disregarded. In this respect, the barcode is but a

scrivener’s tool, an administrative convenience for streamlining

and regularizing the intermediate process of copying the absentee

voter’s choices into a system-readable format. At no point does

the use of the barcode affect either the voter’s selections or the

voting system itself.

The conclusion that a ballot wizard is not a “voting system”

is generally consistent with the way others, including the EAC,

regard the technology. In response to a question from the State

Administrator of Elections on how the EAC would view ballot-

marking wizards for certification purposes, the EAC’s Testing

Director wrote: “Web applications, such as on-line ballot

marking wizards, do not meet the definition of a voting system as

defined in the V[oluntary] V[oting] S[ystem] G[uidelines] and

therefore are not considered eligible for testing and certification

under the EAC program.” Memorandum of Brian Hancock,

Director, EAC Testing and Certification Division, to Linda

Lamone, Administrator, SBE, at 2 (Feb. 3, 2012).14

14

The memorandum noted that the EAC General Counsel “concurs

with the substance” of the memorandum, although “it does not

constitute an official opinion of the EAC because of the current lack of

a quorum of Commissioners.” Memorandum of Brian Hancock,

Director, EAC Testing and Certification Division, to Linda Lamone,

Administrator, SBE, at 1.

48 [97 Op. Att’y

We are aware that California’s Secretary of State,

interpreting California law, came to the opposite conclusion when

she determined that a technology similar to SBE’s ballot wizard

did amount to a voting system. The California Secretary of State

explained that “LiveBallot enables voters to use a computer to

‘mark[] their ballot selections online’ and thus to cast votes.”

Letter of Debra Bowen, Secretary of State, California, to Bryan

Finney, President, Democracy Live at 2 (October 11, 2011).

The differences between California election law and

Maryland law may account for the different interpretations.

Putting aside whether the ballot wizard “casts” ballots, it clearly

does not “tabulat[e]” them, something Maryland’s definition of

“voting system” requires that California’s does not. Compare EL

§ 1-101(xx) (“a method of casting and tabulating ballots or votes”

(emphasis added)), with Cal. Elec. Code § 362 (“any mechanical,

electromechanical, or electronic system and its software, or any

combination of these used to cast or tabulate votes, or both”

(emphasis added)). We also note that California’s certification

program operates in an elections environment that is very

different from Maryland’s. In California, every county may

choose its own voting system whereas, in Maryland, the State

Board selects a single statewide system that must be used “in all

counties.” EL § 9-101(c); see generally Letter of Debra Bowen,

Secretary of State, California, to Bryan Finney, President,

Democracy Live. Given the far greater possibility for variation in

voting systems across California, it should not be surprising that

election authorities there might interpret their voting system

statutes more broadly in an effort to maintain some uniformity in

the standards that apply to those disparate systems.

Whatever the merits of the Secretary of State’s reading of

the California statute, legislation has been introduced to clarify

the difference between a “ballot marking system” and a “voting

system,” and to specify that the term “voting system” does not

include the type of ballot-delivery and ballot-marking system

proposed by the State Board here. See California Assembly Bill

1929, Third Reading (as amended June 28, 2012), available at

http://www.leginfo.ca.gov/pub/11-12/bill/asm/ab_1901-1950/ab_

1929_bill_20120628_amended_sen_v95.pdf (last visited Aug. 21,

2012)). The bill defines a “ballot marking system” to mean “any

mechanical, electromechanical, or electronic system and its

software that is used for the sole purpose of marking a ballot for a

special absentee voter and is not connected to a voting system at

any time.” Id. (emphasis added). The legislation prohibits a

ballot-marking system from including certain capabilities (e.g.,

the ability to store voting selections or tabulate votes) and

requires the Secretary of State to establish new procedures for the

review and approval of such systems. See California Assembly

Gen. 32] 49

Bill 1929, Third Reading, § 5 (proposing to amend the California

Elections Code by adding §§ 19260 to 19275).15

A number of other jurisdictions already appear to offer

ballot-marking tools to assist UOCAVA voters in completing

electronically-delivered ballots. See FVAP, “Electronic Voting

Systems Fact Sheet,” available at http://www.fvap.gov/resources/

media/evswfactsheet.pdf (last visited Aug. 22, 2012). Among the

states to offer ballot-marking tools are those, like Delaware, that

have voting system certification requirements analogous to

Maryland’s, including that a voting system used in the State must

have received federal certification. See, e.g., Del. Code Ann., title

15, § 5001(d) (requiring certification to voluntary voting system

standards for “any voting device, machine or system purchased by

the State”). However, the significant differences among state

voting-system laws and election-administration schemes make

comparisons difficult and of relatively limited help in our

analysis. Still, it seems fair to conclude that some other states

have, at a minimum, viewed online absentee ballot systems as

something other than a voting system. See “Written testimony in

support of SB 1078” by Bob Carey, Director, Federal Voting

Assistance Program, U.S. Department of Defense, at 5 (April,

2012) (“Requiring pre-certification of such an online blank ballot

delivery and online marking system would make Maryland the

only one of the 24 states with similar tools with such a

requirement; to date, no other State has required their system pass

pre-certification requirements.”). That appears to be the effect of

the proposed legislation in California. We think the same

conclusion follows from a comparison of the ballot wizard against

Maryland’s definition of a “voting system.”

B. The Ballot Marking Wizard Does Not Modify the ES-2000

Voting System

For similar reasons, we conclude that the ballot wizard does

not modify Maryland’s voting system such that its use would

trigger the certification requirement. Maryland voters use one of

two certified voting systems—a touchscreen system for voting in

polling places and an optical-scan system for absentee and

15

As of August 21, 2012, AB 1929 had been ordered to a third

reading in the California Senate. Like the pending California measure,

Maryland legislation proposed during the 2012 General Assembly

session would have expressly authorized the development of an on-line

ballot-marking tool and the fax or internet transmission of ballots for

military or overseas voters and voters with disabilities who request

such delivery. See S.B. 1078, 2012 Gen. Assembly (third reader)

(proposing to amend EL §§ 9-306(b), 9-308(c)). The Maryland bill

passed third reader in the Senate but did not reach third reader in the

House of Delegates before the end of the legislative session.

50 [97 Op. Att’y

provisional voting. See, e.g., State Board of Elections, “Overview

of Maryland’s Voting System,” available at http://www.elections.

state.md.us/voting_system/index.html (last visited August 21,

2012). When used for absentee voting, the ES-2000 optical-scan

system functions as a central-count system, meaning that all votes

are recorded and tabulated in a central location during the

absentee ballot canvass. Canvass procedures control the handling

of returned ballots, COMAR 33.11.04, and determinations about

whether the ballots are accepted or rejected, COMAR 33.11.05.

To record and tabulate votes, election officials manually feed

ballot cards into the AccuVote unit, the scanning apparatus that

records and counts votes and tabulates the results. COMAR

33.10.11.01B. Thus, apart from the unit’s programming, the

ballot card is the only real input into the optical-scan unit.

From the State Board’s description of its proposed use, the

ballot wizard would never be connected to the ES-2000 system

and would not interface at any point with the optical-scan unit.

The configuration of the ES-2000 system would remain

unchanged by the manner in which the absentee voter chooses to

indicate his or her vote, whether it be by pen, pdf annotator,16 or

the ballot wizard at issue here. See, e.g., COMAR

33.11.05.05A(1) (“Absentee ballots may be marked by any kind

of pencil or ink.”). The paper ballot that is created from the ballot

wizard is never introduced into the optical-scan system, but is

instead separated from the vote-recording and tabulation

processes by intermediate procedures needed to duplicate the

voter’s original ballot onto a ballot card capable of being scanned.

Consequently, we can foresee no realistic scenarios in which the

ballot wizard itself could affect the performance of the optical-

scan system.17 For these reasons, we do not think that use of the

ballot wizard would represent a modification or addition to the

ES-2000 absentee system.

16

A pdf annotator is a type of commercially available software that

enables the user to electronically mark documents provided in the

commonly used portable document format, or “pdf,” using either a

touchscreen or keyboard.

17

Commenters expressed concern about the security of the ballot

wizard and the possibility that malware or other computer viruses

present on the absentee voter’s computer might cause the wizard to

misidentify the voter’s selections. It is our understanding that the State

Board is aware of these concerns and is testing the wizard accordingly.

Although the hypothetical possibility of technical malfunction may not

be irrelevant to the interpretive decision we address here, it is an aspect

of that decision that is properly left to the agency to evaluate. See

Schade v. Maryland State Bd. of Elections, 401 Md. 1, 39 (2007)

(observing that it is for the State Board, and not a reviewing court, to

evaluate the need for security measures).

Gen. 32] 51

This is not to say that a ballot-marking wizard is never part

of a voting system; it commonly is. In fact, in 2009, the State

Board required certification of the polling-place use of a ballot-

marking device in conjunction with the optical-scan system. At

that time, State law required SBE to acquire a new polling-place

system that provided a voter-verifiable paper record and met the

relevant HAVA accessibility standards. 2007 Md. Laws, chs.

547, 548. If no system meeting both requirements were

commercially available, a statutory contingency plan allowed for

an alternative procurement. 2009 Md. Laws, ch. 428. Optical-

scan systems without a ballot-marking device to assist voters with

disabilities did not meet the accessibility standards. And though

accessible ballot-marking devices had been developed, no optical-

scan system had been certified to the Voluntary Voting System

Guidelines with the ballot-marking device included as a

component of the system. The question arose, therefore, whether

the contingency had been met or whether the optical-scan system

and the marking device together were a “commercially available”

voting system, despite the lack of federal certification for that

configuration of system components. See generally SBE

Memorandum to Offerors, “Determination of Commercial

Availability & Cancellation of Solicitation #D38B9200010 (May

11, 2009).

With advice from this Office, SBE concluded that

certification of the ballot-marking device was required under § 9-

102 and therefore no qualifying system was available. Id. In that

situation, the ballot-marking device had to be regarded as part of

the voting system for both legal and technical reasons. As a

strictly legal matter, State law required a voting system that met

accessibility standards. EL § 9-102(f), (g). Therefore, if the

ballot-marking device was necessary for the system to meet those

standards, the ballot-marking device had to be considered as part

of the system for certification purposes. Moreover, from a more

technical perspective, the proposed use of the ballot-marking

device in polling places made it part of the voting system.

Though not physically connected to the optical-scan unit, the

device would mark the actual ballot cards fed into the scanning

device. Accordingly, the ballot-marking device interacted with

the optical-scan system to this extent and its performance and

accuracy, and the quality of the marks on the ballot card would

directly impact the performance of the optical-scan system.

By contrast, the ballot-marking wizard does not itself mark

selections on the ballot card—the casting mechanism used by the

ES-2000 system—and so does not have the same potential to

modify or affect the performance of that system. Morever, an

absentee voter who has used a wizard to assist her in navigating

through the various ballot choices before printing her ballot has

the opportunity to review the accuracy of the marked selections at

her leisure and to make any corrections she finds necessary.

52 [97 Op. Att’y

These important differences, in terms of system performance and

accuracy, illustrate the principle that a ballot-marking tool may be

considered part of a voting system if it is integrated into or con-

nected with that system. See, e.g., COMAR 33.09.01.01B(4)(b)(ii)

(defining “voting system” to include a “voting machine, voting

device, tabulating equipment, vote-counting program, or other

equipment, hardware, firmware, or software used by or with a

voting system” (emphasis added)). Arguably, the need for testing

and certification as to these core functions would arise where the

ballot-marking tool is integrated into the voting system because,

once the ballot is cast in such an arrangement, the voter is

completely reliant upon the voting system to record and tabulate

all votes accurately. Because the State Board has determined that

the ballot-marking wizard before us now is not so integrated, and

the facts support its determination, we conclude that certification

is not required.

C. SBE’s Interpretation of the Statute is Reasonable

Although the State Board has interpreted § 9-102 to apply to

a ballot-marking device when that device is a component of a

complete voting system, it views the proposed ballot-marking

wizard as separate from, and thus not a part or component of, the

certified optical-scan system. See generally, Letter of Linda

Lamone, Administrator, SBE, to Sen. Brian Frosh (Feb. 6, 2012).

Certainly, other readings are possible; the statute offers no clear

rule on how to define the limits of a system, except to the extent

the vendor has already done so. However, given the statutory

purpose of assuring the “security and integrity” of the various

voting processes, EL § 1-201(6), the question of how to define

those limits becomes more technical than legal, requiring the

exercise of expertise about voting systems, their components, and

how they interact with one another. As the agency that has since

1978 exercised all of the statutory duties relating to State

certification of voting systems, the State Board is well suited to

define what is, and is not, a “voting system” and we believe that a

reviewing court would afford SBE’s interpretation of “voting

system” considerable deference.

“‘[A]n administrative agency’s interpretation and application

of the statute which the agency administers should ordinarily be

given considerable weight. . . .’” Thanner Enterprises, LLC v.

Baltimore County, 414 Md. 265, 275 (2010) (quoting Maryland

Aviation Administration v. Noland, 386 Md. 556, 572 (2005)).

The deference ordinarily due to an agency’s interpretation of the

statute it administers “is all the more warranted when, as here, the

regulation concerns ‘a complex and highly technical regulatory

program,’ in which the identification and classification of relevant

‘criteria necessarily require significant expertise and entail the

exercise of judgment grounded in policy concerns.’” Thomas

Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994) (quoting

Gen. 32] 53

Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 697 (1991)); see

also Thanner, 414 Md. at 275 (observing that “‘the expertise of

the agency in its own field should be respected’”) (quoting

Noland, 386 Md. at 572).

The conclusion that the State Board’s application of the

certification provisions is entitled to deference finds support in

Schade v. Maryland State Bd. of Elections. There, the Court of

Appeals concluded that SBE’s certification of a voting system

was entitled to deference because the certification decision was “a

matter of policy or quasi-legislative in nature,” and because “the

statutory requirements . . . give the State Board broad discretion

to weigh various factors and ultimately decide on a system. . . .”

401 Md. at 38-39. Within the context of the certification of

voting systems, the Court stated, the State Board was “no doubt,

in a better position to carry out the charge delegated to it than any

other entity, including this Court.” Id. at 39.

In our view, a reviewing court would likely afford the State

Board’s determination here—that a ballot-marking wizard neither

is a voting system nor modifies a voting system—the same

deference that it afforded the certification decision in Schade. In

addition to the “broad discretion” described in Schade, the

Legislature delegated to the State Board the interpretive

responsibility to promulgate regulations construing the

certification process and its applicability to voting systems. See

EL § 9-102(b). We believe it incontrovertible that the State

Board, and not a reviewing court, is best equipped to make the

fine technical determinations as to what types of voting-related

devices have a sufficiently close connection to the voting system

to be subject to certification as a part thereof. Thus, just as in

Schade the Court of Appeals observed that “it is not this Court

that should ultimately decide on the State’s voting system, but the

State Board, to which that power was expressly delegated,” 401

Md. at 39, we believe that the technical decision at issue here is

also one that the Legislature has delegated to SBE, and SBE’s

decision is therefore entitled to deference. See 76 Opinions of the

Attorney General 3, 14 (1991) (agency “has presumed expertise

and . . . responsibility” to determine specific application of

statutory term, the scope of which was not clearly delineated by

the General Assembly); 78 Opinions of the Attorney General 26,

32 (1993) (same).

Several commenters have expressed their disagreement with

the State Board’s understanding of § 9-102. In their view, when

technology is used to mark ballots, it is so intertwined with the

voting process that it necessarily becomes a part of the voting

system. In addition, they note that the wizard performs functions

that fall within the HAVA definition of “voting system” and also

that there are federal guidelines that address ballot marking.

Finally, they express a concern that if § 9-102 is not construed to

54 [97 Op. Att’y

require certification, the protection it offers to voters would be

undermined.

Although we see merit in these arguments, ultimately we

find that these views are not anchored in the text or design of the

statute. As explained above, the State definition of “voting

system” does not plainly encompass a stand-alone ballot-marking

tool. Instead, that definition focuses on “casting and tabulating

ballots or votes,” EL § 1-101(xx), which is something the ballot-

marking wizard does not do. Furthermore, the text of § 9-102

itself does not address the question of how the State Board should

evaluate any particular voting-related device, except in the

context of a complete voting system. The absence from § 9-102

of any provision for testing separate devices suggests that this is a

case the Legislature has simply not provided for, rather than an

intent to apply the statute as broadly as possible.

Nor is it warranted, in our opinion, to interpret § 9-102 in

light of the federal definition of “voting system.” The State

definition preceded the enactment of HAVA and has not been

changed subsequently to conform to the federal definition. The

two definitions are also textually very different, with the State

definition encompassing only the two core functions of a voting

system—“casting and tabulating” votes—and the federal

definition including within its reach a number of specific aspects

of voting. The two definitions also operate very differently in this

context; § 9-102 imposes certification testing for devices covered

by the term “voting system,” whereas HAVA imposes no

certification process whatsoever and fairly minimal performance

requirements. Thus, using the broadest possible definition of

“voting system” for purposes of HAVA would pose little risk of

circumscribing State authority with respect to its own systems,

whereas using the same definition for § 9-102 might seriously

impede SBE’s ability to manage election-related technology. In

sum, we would hesitate to regard the federal definition as a gloss

on the State definition.

A further problem with interpreting § 9-102 to automatically

extend to all voting-related functions (regardless whether the

function is performed by the voting system) is that such an

interpretation would cover the absentee ballot-delivery system as

well. That system performs a ballot-presentation function, and

arguably a ballot-definition function also, for all UOCAVA voters

who choose to receive their ballots electronically, whether or not

the ballot wizard is used to facilitate use of the ballot-delivery

system. Accordingly, if it were true that any technology that

carries out a covered function requires State certification, as some

have proposed, it follows that the online ballot-delivery system

would be subject to that process too. We are unaware of any state

having adopted so expansive an interpretation of its certification

requirements, and we do not believe Maryland law commands

Gen. 32] 55

this result either. For these reasons, we do not think the

commenters’ proposed reading of § 9-102 best reflects the

language or structure of the statute.

With respect to commenters’ concern about the protection of

the voting system, the full certification regime prescribed in § 9-

102, including testing under the EAC program, is designed to

provide assurance about the security and reliability of the entire

voting system and is, presumably, appropriately thorough to suit

that purpose. Because even small modifications to the voting

system have the potential to affect the system in unknown ways,

re-testing and re-certification are also necessary following

virtually any change to the system or a system component by the

vendor. But where a device with no interaction or potential to

affect the voting system is proposed, we believe a court would

likely defer to the State Board’s interpretation of § 9-102 to not

demand the same re-certification process.18

The conclusion that the process outlined in § 9-102 is not

mandated for the ballot wizard does not mean that no evaluation

or testing is necessary; even in the absence of certification, the

State Board may not act unreasonably in implementing the

technology. See, e.g., Fritszche v. Maryland State Bd. of

Elections, 397 Md. 331, 341 (2007) (agency action must be

supported by facts, within the scope of delegated authority, and

not arbitrary, capricious, or unreasonable). The State Board must

make the determination to move forward with the ballot wizard

upon the basis of substantial evidence—evidence, we understand,

that SBE is currently compiling through an ongoing testing

process. SBE must also ensure that “security and integrity are

maintained in the casting of ballots, canvass of votes, and

reporting of election results,” EL § 1-201(6), and that each ballot

is “easily understandable,” “present[s] all candidates and

questions in a fair and non-discriminatory manner,” “permit[s] the

voter to easily record a vote on questions and on the voter’s

choices among candidates,” “protect[s] the secrecy of each voter’s

choices,” and “facilitate[s] the accurate tabulation of the choices

of the voters.” EL § 9-203. These statutory standards continue to

apply in the absence of certification, with the State Board

delegated the authority to determine, in the exercise of its

18

Notably, the circumstances under which SBE may decertify a

previously certified voting system do not include the loss of federal

certification. See EL § 9-103(a)(2) (requiring de-certification “if the

State Board determines that the system no longer merits certification”

or the voting system will no longer, as required by § 9-102(d)(1)(i)

through (iii), protect the “secrecy of the ballot” or the “security of the

voting process,” or will no longer “count and record all votes

accurately”).

56 [97 Op. Att’y

reasonable judgment, the form and extent of testing necessary to

meet those standards.

It is important in this respect to acknowledge that State and

federal law both include special provision for UOCAVA voters in

light of the unique challenges these voters face. A known

problem for all absentee voters, as compared to voters who are

able to cast ballots in polling places, is a higher rate of “residual

votes”—i.e., the total number of votes that cannot be counted for

a specific contest, whether because of overvoting, undervoting, or

failure to properly record the voter’s intent. See Voluntary Voting

System Guidelines, Appendix A: Glossary, at A-16, available at

http://www.nist.gov/itl/vote/upload/VVSG-Volume-IAppendixA.pdf

(last visited Aug. 16, 2012). SBE’s ballot wizard is meant to

address this problem by preventing overvotes and undervotes and

by reducing the incidence of errors during the ballot-duplication

process. Thus, provided SBE acts reasonably in testing the ballot

wizard and deciding whether it is safe to deploy, making that tool

available to UOCAVA voters appears to us to be consistent with

the statute and legislative intent. Given SBE’s statutory duty to

“maximize the use of technology in election administration,” EL

§ 2-102(b)(7), and the goal of the Election Article to emphasize

“citizen convenience,” EL § 1-201(5), we believe that the better

interpretation of § 9-102 is not one that effectively precludes the

use of a tool that could improve the accuracy with which absentee

votes are counted.

III

Conclusion

In summary, it is our opinion that, in the absence of

governing case authority, the State Board may reasonably

conclude that the ballot-marking wizard it proposes for UOCAVA

voters does not itself constitute, or modify, a “voting system”

such that it is subject to the certification requirements of § 9-102

of the Election Law Article.

Douglas F. Gansler

Attorney General

Adam D. Snyder*

Chief Counsel

Opinions & Advice

* Jeffrey L. Darsie contributed significantly to the preparation of

this opinion.

Editor’s Note:

Since the issuance of this Opinion, the California State

Legislature passed Assembly Bill 1929, which is discussed on

Gen. 32] 57

pages 44 and 45 of this Opinion. Governor Brown signed the

measure into law on September 28, 2012, and it was “chaptered”

by the Secretary of State as Chapter 694, Statutes of 2012.