# Maryland Attorney General Opinion 97 OAG 032

> Maryland Attorney General Reports · August 23, 2012

URL: https://www.frixlaw.com/law-library/cases/11146237

## Case

- **Court:** Maryland Attorney General Reports
- **Decided:** August 23, 2012
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11146237

## How later opinions describe it (automated extraction)

- observing that “‘the expertise of the agency in its own field should be respected’”
- noting that all absentee votes were “cast” in the election supervisor’s office for purposes of statute allowing absentees to request assistance
- observing that it is for the State Board, and not a reviewing court, to evaluate the need for security measures
- 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”

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11146237. Public record. Not legal advice.