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 ballotdelivery 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 technology—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 mechanicallever 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 certification 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 opticalscan 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 ES2000 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.” 2005 Voluntary Voting System Guidelines, Vol. I, ¶ 

1.5.2.1 (p. 10).9

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 HAVAcompliant 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 HAVAcompliant.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, opticalscans, 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 AFLCIO 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 ballotmarking 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 opticalscan 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 ballotmarking 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. Opticalscan 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 opticalscan 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 connected 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 ballotmarking 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.