Maryland Attorney General Opinion 98 OAG 152

152] [98 Op. Att’y

ELECTION LAW

VOTING SYSTEMS – STATUTORY CONSTRUCTION – REQUIREMENT
THAT VOTING SYSTEMS NOT CREATE A “SEGREGATED
BALLOT” FOR VOTERS WITH DISABILITIES

December 18, 2013

Linda H. Lamone
Administrator, State Board of Elections

On behalf of the State Board of Elections (“SBE” or “the State
Board”), you have requested our opinion regarding the meaning of
the term “segregated ballot” as it appears in the statutory
requirements governing the certification of voting systems for use in
Maryland. Those requirements specify that a voting system, to be
certified, must meet certain State and federal standards and “provide
access to voters with disabilities that is equivalent to access afforded
voters without disabilities without creating a segregated ballot for
voters with disabilities.” Md. Code Ann., Election Law (“EL”) § 9-
102(f)(1). The requirements set forth in § 9-102 also specify that the
voting system must be based on the preparation of a voter-verifiable
paper ballot. Because many voters with disabilities are unable to
prepare a hand-marked paper ballot, however, the voting systems
will need to include a computerized ballot-marking device that
allows the voter to make selections through other non-written means
and then print a paper copy of the ballot.
The State Board of Elections (“SBE”) has begun the process of
selecting a new optical scan voting system for use in Maryland
beginning with the 2016 Presidential Election. The first step in that
process is the certification of those voting systems that are compliant
with Maryland’s standards. It is within this context that you ask
what constitutes a “segregated ballot” under State law. Specifically,
you ask:

1. Does segregation occur by virtue of the fact
that the ballot created by the ballot marking
device is different and distinguishable from the
hand marked ballots? Or, does segregation
only occur if ballots are cast, counted, and
stored in a physically separate and distinct
manner?
2. Does the determination of whether a
segregated ballot has been created depend in
Gen. 152] 153

part on how the system is intended to be
deployed and utilized? For example, assume
the ballot marking device could be deployed in
a manner such that it is an optional voting
method for all voters, as opposed to only an
accessible voting solution for voters with
disabilities. Would such a deployment and
utilization affect the analysis of what
constitutes a segregated ballot?
In our opinion, the General Assembly, by using the term
“segregated ballot,” intended to ensure that the ballots cast by voters
with disabilities could not be identified as such during the process of
casting, counting, and, if necessary, re-counting the paper ballots
cast in an election. As we see it, the State Board has three options
for certifying voting systems that can be used without creating a
segregated ballot for voters with disabilities. First, SBE may require
all voters to use a voting system that is accessible to voters with
disabilities. This option would not segregate ballots in any way, but
the cost and inefficiency of such a system—which the statute
requires SBE to consider—might weigh against it. Second, SBE
may certify an accessible voting system that generates a ballot that is
formally identical to those ballots cast by non-disabled voters so
long as all ballots are cast, counted, and stored together. Finally,
after considering the legislative history and the definitions and usage
of the term “segregated,” we conclude that the statute permits SBE
to certify an accessible voting system that generates a non-identical
ballot, so long as voting procedures are implemented to ensure that
non-disabled voters use the accessible system as well and do so in
sufficient numbers to prevent the resulting ballots from being
identified as having been cast by voters with disabilities.
I
Background
As the twentieth century came to a close, Maryland’s voting
infrastructure comprised a wide variety of voting systems, with each
county responsible for choosing which type of system to employ.
See 97 Opinions of the Attorney General 32, 36 n.7 (2012)
(describing how, by 2000, Maryland counties employed four
different types of voting systems: punch-card, mechanical lever,
optical scan, and direct-recording electronic touchscreen). The
experience of the 1994 gubernatorial election, with its narrow
margin and vote count problems, highlighted the “myriad of
administrative problems” associated with Maryland’s patchwork
154] [98 Op. Att’y

quilt of voting systems. Schade v. Maryland State Bd. of Elections,
401 Md. 1, 8 (2004). The potential significance of those problems
was magnified by the 2000 presidential election and the national
attention it focused on the “unfortunate number” of ambiguous
ballots produced by punch-card balloting machines. Bush v. Gore,
531 U.S. 98, 104 (2000); see also 97 Opinions of the Attorney
General at 34-37.
In 2001, the General Assembly responded with legislation to
modernize the conduct of elections in Maryland. The legislation
mandated a uniform, statewide, voting system for State and federal
elections and charged a single agency—the State Board—with
overseeing the operation of that system. Under this new system,
SBE, “in consultation with the local boards [of elections],” was
given the authority to “select and certify a voting system for voting
in polling places and a voting system for absentee voting.” 2001
Md. Laws, ch. 564; EL § 9-101(b). The State Board, following the
directive in the 2001 legislation, then certified, selected, and
procured a “direct recording electronic” or “DRE” unit, which
provides for the voting and tabulation of votes directly by a
computerized touchscreen system without the need for paper
ballots.1 See generally Schade, 401 Md. at 7-9; 97 Opinions of the
Attorney General at 36-37.
The new DRE system certified by SBE represented an advance
over the previously-used paper ballot systems in many respects. The
computerized systems eliminated the need to interpret ambiguous
handwritten ballots, allowed for easier and more efficient re-counts,
and in some ways made the voting process more user-friendly.
Schade, 401 Md. at 8-9. Most relevant to our purposes, the
touchscreen system included features that enabled many voters with
disabilities to cast their ballots without assistance, id. at 9, and in a
manner that made their ballots indistinguishable from non-disabled
voters. As the Court of Appeals observed in Schade, the
touchscreen system represented the “first time [that] blind voters
were able to vote independently and secretly” on the same basis as
non-disabled voters. Id. at 21.

1
Absentee and provisional ballots—which are completed on paper—
were tabulated through the use of an optical-scan system. See, e.g., State
Board of Elections, Overview of Maryland’s Voting System,
http://www.elections.state.md.us/voting_system/index.html (last visited
Dec. 9, 2013).
Gen. 152] 155

Although the touchscreen system represented a step forward in
many respects, some observers believed that it came at the cost of
election integrity because the system did not leave a “paper trail”
that would allow for independent verification of the accuracy of the
vote tabulation. Because the voter’s selections on the touchscreen
were recorded by computer and computer alone, the paper ballot
image that the system was able to generate merely verified the
computer’s selections, not the voter’s. Id. at 18 n.22. Concerns
about electronic security and the potential for vote manipulation
prompted opponents of the new DRE system to file suit to block its
use in the 2004 presidential election. That litigation2 culminated in
Schade, in which the Court of Appeals upheld SBE’s procurement
of the DRE systems as a reasonable exercise of the “broad
discretion” delegated to it by the General Assembly. See id. at 38-
39.3
Undaunted, the opponents of the computerized system turned
to the Legislature and there found success. In 2007, the General
Assembly enacted legislation directing SBE to certify, for use in
elections after January 1, 2010, a voting system that would provide a
“voter-verifiable paper record.” EL § 9-102(d)(1)(vii). A voter-
verifiable paper record is defined as “a paper ballot” that is either
“prepared by the voter for the purpose of being read by a precinct-
based optical scanner,” “mailed to the applicable local board,” or
“created through the use of a ballot marking device.” EL § 9-102(a).
As required by statute, the paper record must be an individual
document that is “not part of a continuous roll”; it must be
“sufficiently durable to withstand repeated handling for the purposes
of mandatory random audits and recounts”; and it must “use[] ink
that does not fade, smear, or otherwise degrade and obscure or
obliterate the paper record over time.” EL § 9-102(d)(1)(vii); 2007
Md. Laws, chs. 547, 548.4

2
The litigation was brought by “a group of registered Maryland
voters and candidates.” Schade, 401 Md. at 13. SBE defended its
decision, and the National Federal of the Blind intervened in support of
SBE. Id. at 15.
3
The Court initially announced its decision by Order issued after oral
argument on September 14, 2004. Schade v. Maryland State Bd. of
Elections, 383 Md. 208 (2004). The Court later set forth its reasoning in
an opinion issued on August 24, 2007. See 401 Md. at 25.
4
The General Assembly passed two identical, cross-filed bills—S.B.
392 and H.B. 18—which were subsequently signed by the Governor.
156] [98 Op. Att’y

Advocates for the disability community opposed the legislation
in part on the grounds that it would compromise the secrecy of
disabled voters’ selections. Because many voters with disabilities
are unable to mark paper ballots, they would have to use “ballot
marking device[s],” EL § 9-102(a)(3), to make their selections
without assistance. The advocates expressed the concern that the
resulting ballots—particularly if cast, counted, and stored
separately—could be identified as having been cast by a voter with
disabilities, and they proposed an amendment to address the
problem. In an effort to alleviate these concerns while still
providing for a paper trail, the General Assembly adopted the
proposed amendment drafted by one of the opponents of the
legislation and enacted the provision we must construe here:
A voting system selected, certified, and
implemented under this section shall . . .
provide access to voters with disabilities that is
equivalent to access afforded voters without
disabilities without creating a segregated ballot
for voters with disabilities.
EL § 9-102(f)(1).
For reasons not relevant to this opinion, SBE is just now
beginning the process of certifying and selecting a new optical scan
voting system for use in polling places. A polling-place optical scan
voting system requires the voter to fill out a paper ballot by using a
pen or other ink-based marker. That ballot is then fed into a scanner
that reads and counts the voter’s selections. Voters who have
disabilities that prevent them from hand-marking paper ballots and
who wish to vote without the assistance of others must use a ballot-
marking device that provides a touchscreen interface for the voter to
make his or her selections. The ballot is printed, scanned by the
optical scan voting unit, and then stored in the same ballot box as the
hand-marked ballots.
You have stated that some ballot-marking devices might
produce ballots that are different from those that are hand-marked.
For example, the ballots might show only the voter’s selections and
not the full contests, the ballots might be a different size from the
ballots generated by non-disabled voters, or there may be a barcode
at the top of the ballot. You asked whether any of these differences
mean that those ballots are “segregated” in violation of § 9-
102(f)(1), or whether segregation occurs only when those ballots are
cast, counted, and stored in a physically separate and distinct
manner. In addition, you asked whether making the accessible
Gen. 152] 157

system available to all voters could prevent segregation of the
ballots.
II
Analysis
The meaning of the term “segregated ballot” within § 9-
102(f)(1) is a matter of statutory construction, the cardinal rule of
which is “to ascertain and effectuate the real and actual intent of the
Legislature.” Lockshin v. Semsker, 412 Md. 257, 274 (2010).
To ascertain the intent of the General
Assembly, we begin with the normal, plain
meaning of the language of the statute. If the
language of the statute is unambiguous and
clearly consistent with the statute’s apparent
purpose, our inquiry as to legislative intent
ends ordinarily and we apply the statute as
written, without resort to other rules of
construction. . . . Where the words of a statute
are ambiguous and subject to more than one
reasonable interpretation, or where the words
are clear and unambiguous when viewed in
isolation, but become ambiguous when read as
part of a larger statutory scheme, a court must
resolve the ambiguity by searching for
legislative intent in other indicia, including the
history of the legislation or other relevant
sources intrinsic and extrinsic to the legislative
process. . . . In every case, the statute must be
given a reasonable interpretation, not one that
is absurd, illogical, or incompatible with
common sense.
Id. at 274-76 (citations omitted).
The statute itself does not resolve the issue; it neither defines
the term “segregated ballot” nor suggests by its structure or context
a specific meaning. Rather, as your questions suggest, the term
could be read to imply difference, and require that the ballot created
by the ballot-marking device be indistinguishable from hand-marked
ballots, or it could imply separation, and require only that ballots
cast by disabled voters not be counted or stored separately from all
others. Neither meaning is clear from the text. To resolve the
statutory ambiguity, we will look to the usage of the term
158] [98 Op. Att’y

“segregated ballot” in other authorities, the dictionary definition of
“segregated,” and the legislative history of § 9-102(f)(1).
A. The Use of “Segregated Ballot” in Other Contexts and the
Dictionary Definition of “Segregated”
There are no reported cases in Maryland or other jurisdictions
that construe the term “segregated ballot.” However, one Maryland
case and a few authorities in other jurisdictions have used the term
in passing. The Maryland case used the term “segregated ballot” to
describe absentee ballots that had been set aside because they lacked
the statutorily-required application to submit such a ballot. See
Pelagatti v. Board of Supervisors of Elections for Calvert County,
343 Md. 425, 433 n.8 (1996) (observing that “of the 19 segregated
ballots found to be lacking applications, 14 were for O’Donnell, 3
were for Pelagatti, and 2 were for neither candidate”). The only two
reported cases from other jurisdictions use the term in a similar way
to describe ballots that, because of some irregularity, have been set
aside. See Finkelstein v. Stout, 774 P.2d 786, 793 (Alaska 1989) (on
remand, requiring lower court to deduct the “nine segregated
ballots” that were determined to be illegal and had been “counted
but not commingled” with the other ballots); Powers ex rel. LaBelle
v. Monahan, 132 A.2d 97, 99 (R.I. 1957) (describing contention that
“the board of canvassers erred in rejecting the three segregated
ballots” that were in dispute because of stray markings). These few
cases suggest that the term “segregated ballot” denotes separation,
rather than difference.5
We also looked for the term “segregated ballot” in the federal
election laws and regulations as well as those of other states. Maine
has the only state or federal statute or regulation that uses the term,

5
A number of other cases, even though they do not use the term
“segregated ballot,” refer in passing to ballots that must be “segregated” in
some way. As best as we can tell, all of these cases also use the word
“segregated” to mean some form of separation and not a mere difference
between ballots. See, e.g., Rossello-Gonzalez v. Acevedo-Vila, 483 F.3d 1,
4 (1st Cir. 2007) (noting that three disputed ballots were “segregated”
from the others); Unger v. Superior Court, 37 Cal. 3d 612, 633 (1984)
(“Candidates for the ‘judicial,’ ‘school’ and ‘county and township’ offices
should be segregated from the partisan offices on the ballot.”); State ex.
Rel. Lukovich v. Johnston, 150 Tex. 174, 178 (1951) (“‘Where illegal
votes can be segregated, only those votes should be thrown out, and the
entire vote need not be impeached, but where it is impossible to separate
improperly marked ballots from the others the votes of a whole district
may be excluded.’” (quoting 29 C.J.S. Elections 193)).
Gen. 152] 159

and uses it in the sense of being separate from other ballots. The
Maine statute describes ballots that, because they have been
“spoiled” by the voter, must be “segregate[d] . . . with any other
spoiled ballots in an envelope labeled ‘Spoiled ballots.’” 21-A
M.R.S. § 693 (2013) (requiring the election official to “package and
return the envelope of segregated ballots” in accordance with other
provisions). Like the cases discussed above, the Maine statute does
not interpret the term “segregated ballot,” does not use it in a
regulatory manner, and does not evaluate it within the context of the
voting rights of people with disabilities. Nevertheless, its usage of
the term is consistent with the cases that use the term to denote
separation rather than difference.6
We turn next to the “ordinary, popular understanding of the
English language” reflected in the dictionary to ascertain the
meaning of the term “segregated.” Kramer v. Liberty Prop. Trust,
408 Md. 1, 21 (2009) (internal quotation marks omitted). The
Merriam-Webster Dictionary defines the term as:
a. set apart or separated from others of the
same kind or group ‹a segregated account in
a bank›;
b. divided in facilities or administered
separately for members of different groups
or races ‹segregated education›;

6
Although Maine’s is the only state code that uses the term
“segregated ballot,” many state codes use the word “segregated” to refer
to ballots more generally, and each uses it to mean separation.
Specifically, most of the statutes use the word to describe the manner in
which some ballots must be physically separated from others. See, e.g.,
Ala. Code § 17-10-2(a)(4) (provisional ballots cast pursuant to court order
extending the time for closing the polls must be “segregated from other
provisional ballots into a separate sealed container”); Idaho Code Ann.
§ 34-308 (requiring mail ballots to be segregated by precinct); S.D.
Codified Laws § 12-21-27 (providing that, if challenged, a “ballot shall be
adequately identified by the board as an exhibit and segregated by the
board as a disputed ballot”); Va. Code Ann. § 24.2-629 (requiring that a
voting system “segregate ballots containing write-in votes from all
others”). Those statutes that do not use the word “segregated” to refer to
the physical separation of ballots use it to refer to the separation of items
on a ballot. See, e.g., N.M. Stat. Ann. § 1-9-20 (requiring that a voting
system generate ballots for primary elections that “segregate the
choices . . . by party affiliation”).
160] [98 Op. Att’y

c. restricted to members of one group or one
race by a policy of segregation ‹segregated
schools›
Webster’s Ninth New Collegiate Dictionary 1063 (1989). All three
definitions connote separation rather than difference and, like the
authorities discussed above, they suggest that the General Assembly
likely envisioned something more than the mere difference between
ballots in using the term “segregated ballot.” But they do not alone
provide a clear answer. For that we turn to the legislative history,
which indicates more clearly the Legislature’s intent.
B. The Legislative History
The bills that were enacted as Chapters 547 and 548 did not
originally use the term “segregated ballot.” See H.B. 18, S.B. 392,
First Reader (2007). As explained above, the legislation’s primary
purpose was to provide an original paper record of a voter’s choices.
The lead sponsor of the House bill, Delegate Sheila Hixson, stated
publicly that a paper trail would “give people a trust in their vote,
that it really counted.” New Bill Would Create Voting Paper Trail
by 2010, Associated Press (March 21, 2007), available at
safevotingmd.org/news/2007/pdfs-docs/3-21-acap-ap-fox21wjz.pdf.
In addition, the advocates of a voting system with a voter-verified
paper record emphasized their preference for a software-independent
paper ballot that could be hand-counted during mandatory routine
audits and, if necessary, during a recount. See Hearing on H.B. 18
Before the House Ways and Means Comm., 2007 Leg., Reg. Sess.
(Feb. 1, 2007) (testimony of Stan Boyd, SAVE Our Votes); Hearing
on S.B. 392 Before the Senate Educ., Health, and Envt’l Affairs
Comm., 2007 Leg., Reg. Sess. (Feb. 22, 2007) (testimony of
Progressive Maryland).
Although the bills were focused on providing a paper trail, they
did include some provisions to protect the voting rights of people
with disabilities:
(a) a voting system selected, certified, and
implemented under this section shall:
(1) provide access to voters with
disabilities that:
(i) is equivalent to the access afforded to
voters without disabilities;
Gen. 152] 161

(ii) facilitates the casting of secret
ballots by voters with disabilities; and
(iii) fully complies with the Americans
with Disabilities Act, P.L. 101–336, and the
Help America Vote Act, P.L. 107–252; and
(2) allow a voter to cast, inspect, verify,
and correct the selections by both visual and
nonvisual means.
(b) at least one voting system in each polling
place shall provide access for voters with
disabilities and afford them the opportunity for
private and independent inspection,
verification, and correction of their ballots.
S.B. 392, First Reader (proposed EL § 9-108). Despite the existence
of these protections, advocates for the disabled opposed the bills
during committee hearings, expressing concern that the proposed
requirements would not allow for disabled voters to “vote privately
and independently.” Hearing on S.B. 392 (written testimony of the
Maryland Disability Law Center). For many disabled voters, the
DRE units then in use provided for complete voter equality, such
that a return to a voting system based on paper ballots represented a
step backwards.
Although the disability community was unable to defeat the
legislation, it was able to obtain an amendment to the disability
protections in the bill to prohibit the use of a “segregated ballot.”
Specifically, the amendment required that a certified voting system
not only must provide “access to voters with disabilities that is
equivalent to access afforded voters without disabilities,” but must
do so “without creating a segregated ballot for voters with
disabilities.” EL § 9-102(f)(1).
The testimony of the advocates for the disabled indicates that
the ultimate goal of the amendment was to ensure that the paper
ballot voting system would be implemented in a way that protected
the privacy of the selections made by disabled voters. Some of that
testimony, however, suggests that the advocates’ preferred means
for achieving that goal was to require a single voting system for all
voters. As the National Federation of the Blind of Maryland stated
in its testimony on H.B. 18 before the House Ways and Means
Committee:
162] [98 Op. Att’y

[T]his bill must be written not only to
guarantee nonvisual access, but it must also
guarantee that this nonvisual access must be an
integral part of the system used by all voters.
It is not acceptable to install a separate voting
system for blind voters. Therefore, we
recommend that . . . the definition of
“equivalent access” should specifically
prohibit ballot segregation, i.e., the ballots cast
by voters using the accessibility features must
not be segregated and counted separately from
the ballots cast by the voters who do not use
these features. If . . . ballot segregation is not
expressly prohibited, blind voters will lose the
assurance of casting secret ballots.
Hearing on H.B. 18 (written testimony of National Federation of the
Blind of Maryland); see also Hearing on S.B. 392 (written testimony
of The Freedom Center, Inc.) (“It is not acceptable to force people
with disabilities to vote differently than everyone else . . . .”).
Although requiring all voters to use the same voting system
plainly would guarantee a non-segregated ballot, we see no evidence
that the General Assembly intended through its use of the term
“segregated ballot” to require that result. The Legislature could
have expressly required the use of identical voting systems for all
voters but did not do so. Instead, it required only that “[a]t least one
voting system in each polling place on election day shall provide
access for voters with disabilities in compliance with [§ 9-102(f)].”
EL § 9-102(g)(1). Similarly, the Legislature could have prohibited
the use of a segregated voting system. Instead it used the term
“segregated ballot,” which, as reflected in the dictionary definitions,
cases, and statutes discussed above, refers most naturally to ballots
that are or can be handled separately from others.
Based on the legislative history and the usage of the term in
other authorities, we conclude that the prohibition on “segregated
ballot[s]” was intended to enable disabled voters to vote privately
and secretly, such that the votes they cast cannot be identified as
having been cast by a disabled voter. A difference between ballots
does not make them “segregated” per se, but if the ballot used by
disabled voters—and, as discussed below, only disabled voters—has
a different appearance from those ballots used by non-disabled
voters, it would be identifiable as a ballot cast by a disabled voter.
Even if the distinct ballots are scanned by the same optical scan unit
and stored in the same ballot box with all other ballots, the ballots
used by voters with disabilities would remain distinguishable and
Gen. 152] 163

thus capable of being “segregated,” particularly in a recount. By the
same token, even if all ballots were identical, those cast by disabled
voters would still be distinguishable and, thus, “segregated,” if they
were counted and stored separately. Thus, it is neither difference
nor separation by itself that controls, but a combination of the two.
We understand a “segregated ballot” to be a ballot that has been
made distinguishable from other ballots, whether by its form or
handling, and resulting in a loss of privacy for the voter.
C. SBE’s Options in Certifying Accessible Voting Systems that
Do Not Produce a “Segregated Ballot”
We believe that SBE has several options for certifying voting
systems consistent with the statute’s mandate that they provide
“equivalent” access “without creating a segregated ballot.” EL § 9-
102(f)(1). First and perhaps most directly, SBE could certify any
accessible voting system that meets the other requirements of the
statute so long as all voters—disabled and non-disabled alike—cast
their ballots through the use of that system. Under that approach, all
ballots would be completed using a ballot-marking device and, thus,
would be identical in appearance and impossible to be segregated.
We do not believe, however, that requiring all voters to use the
same accessible voting system is the only way to avoid the creation
of a segregated ballot. Indeed, it is our understanding that acquiring
ballot-marking devices for all voters—including those who do not
need them—would result in increased costs and inefficiency, factors
that the statute specifically requires the State Board to consider in
certifying an election system. See EL § 9-102(e)(3), (4). In light of
SBE’s duty to consider those factors, we believe that the State Board
could certify a voting system specifically for use by disabled voters
so long as the election process as a whole is designed to prevent the
creation of a segregated ballot.
As we see it, there are at least two other ways in which SBE
may certify an accessible voting system for use within an
appropriately designed voting process. First, the State Board could
certify a voting system dedicated to use by disabled voters so long as
the system produces a ballot that (a) is identical in form to those cast
by non-disabled voters, and (b) is cast, counted, and stored with
other ballots. Although this approach would not necessarily address
the concerns raised by all of the advocates for the disability
community, it would achieve what appears to be principal goal of
164] [98 Op. Att’y

the “segregated ballot” amendment, namely, to make it impossible
to identify a ballot as having been cast by a disabled voter.7
Second, SBE could certify an accessible voting system that
produces a ballot that is different in appearance from handwritten
ballots so long as non-disabled voters are required to use the system
in numbers sufficient to make it impossible to draw the conclusion
that a ballot produced by the system was, or was likely to have been,
cast by a disabled voter. If the accessible system is used in this way,
it does not matter that the ballot is a different size, has a barcode at
the top, or shows only the voter’s selections and not the full contests.
Provided that enough non-disabled voters use the same system, there
would be no way to determine whether a specific ballot was cast by
a disabled or non-disabled voter. Because the accessible system
would be used by disabled and non-disabled voters alike, we believe
that such a system would not result in the creation of a “segregated
ballot” within the meaning of the statute.
We caution that, in order to proceed with this last option, it
would not be sufficient simply to give non-disabled voters the option
of using the accessible voting system. If using the accessible voting
system requires more time and is more complicated—as we
understand may be the case for some systems—a non-disabled voter
may be unlikely to choose that option. And, if election judges are
less comfortable with the operation of the accessible voting system,
they might be reluctant to direct additional, non-disabled voters to
that system. Consequently, if SBE elects to proceed in this fashion,
it must establish randomized polling-place procedures to ensure that
a significant number of non-disabled voters will use the accessible
7
Although we understand that a ballot generated by a ballot-marking
device might never be identical to those filled out by hand, the
manufacturers of accessible voting systems appear to be making strides
toward that goal. See Letter from Howard Cramer, Executive V.P. of
Govt. Relations, Dominion Voting, to Adam D. Snyder, Chief Counsel,
Opinions and Advice, Office of Attorney General (Aug. 29, 2013) (noting
that Dominion has developed “a library of random individual types of oval
marks that mimic the oval marks filled in by hand”). We believe it would
be within SBE’s “broad discretion” over voting system certification,
Schade, 401 Md. at 38-39, to determine whether a particular
distinguishing feature makes the ballot produced by a ballot-marking
system sufficiently distinguishable from other ballots that it would
constitute a prohibited “segregated ballot” even when mixed with other
ballots before counting. See 97 Opinions of the Attorney General at 39
(observing that “the standards in [EL] § 9-102 allow SBE considerable
discretion to decide what sort of evaluation is appropriate and what level
of performance will be deemed acceptable”).
Gen. 152] 165

voting system.
We are not in a position to say how many ballots cast by non-
disabled voters would be sufficient to render the ballots cast by
disabled voters indistinguishable as such; that decision is properly
left to SBE. We believe that the “broad discretion” afforded SBE to
select a voting system, Schade, 401 Md. at 38-39, encompasses the
discretion to devise polling-place procedures that will ensure that the
system it selects is operated in a manner consistent with the statute.
See EL § 9-102(i)(2) (requiring SBE to promulgate regulations that
“specify the procedures necessary to assure that the standards of this
title are maintained”). As the Court observed in Schade, “[t]he State
Board is, no doubt, in a better position to carry out the charge
delegated to it than any other entity . . . .” 401 Md. at 39; see also
id. at 38-39 (SBE’s decision regarding the selection and certification
of voting systems is “a matter of policy or quasi-legislative in
nature” and is subject to an arbitrary and capricious standard of
review). It is our opinion that, so long as SBE develops and
implements polling-place procedures that result in non-disabled
voters using the accessible voting system in sufficient numbers to
make the ballots cast by disabled voters unidentifiable as such, the
State Board may certify and select any accessible voting system that
meets the other requirements of the Election Law without creating a
“segregated ballot.”8

8
We note that SBE regulations may already provide a model for
determining how many non-disabled voters would have to use the
accessible voting system in order to mask the votes cast by disabled
voters. Those regulations provide that, to “preserve the secrecy of
provisional ballots and absentee ballots,” the local election boards must
withhold from the “initial” canvasses “[a]t least five absentee ballots of
each ballot style to be canvassed” during the provisional ballot canvass or
the second absentee ballot canvass. COMAR 33.11.04.04A. It is our
understanding that the purpose of holding back five ballots during the
initial canvass is to ensure that the one or two ballots that typically come
in during the second canvass cannot readily be attributed to the voters who
cast them. Because the regulation provides for five ballots to mask one or
two later ballots, it suggests that a substantial majority of the ballots cast
on an accessible voting system should be cast by non-disabled voters.
Whether a similar approach is workable here is, again, something best left
to SBE to decide.
166] [98 Op. Att’y

III
Conclusion
In summary, it is our opinion that the General Assembly, by
prohibiting the use of a “segregated ballot,” intended to prevent the
certification of a voting system that, for voters with disabilities,
creates ballots that are physically set apart or can be easily
distinguished from the ballots cast by other voters. We conclude
that SBE has three options for certifying voting systems that would
not result in creation of a segregated ballot. The State Board could
require all voters to use accessible machines. Alternatively, SBE
could certify an accessible voting system for the sole use of disabled
voters so long as (a) that system produces ballots that are identical to
the ballots produced by non-accessible machines, and (b) all ballots,
from whatever machine, are cast, counted, and stored together. Or,
SBE could certify any accessible system so long as it establishes
polling-place procedures to ensure that enough non-disabled voters
will use the accessible system that the ballots of disabled voters
cannot be identified as such. Any one of these approaches would
enable SBE to protect the privacy of disabled voters. Which
approach to take, and how to implement that approach, is within
SBE’s statutory discretion to determine.
Douglas F. Gansler
Attorney General
Sandra Benson Brantley
Assistant Attorney General

Adam D. Snyder
Chief Counsel, Opinions & Advice