32 [97 Op. Att’y

ELECTION LAW

V OTING S YSTEMS

– S TATUTORY C ONSTRUCTION

– S TATUTE

R EQUIRING C ERTIFICATION O F V OTING S YSTEMS D OES

N OT A PPLY T O A BSENTEE -B ALLOT -M ARKING W IZARD

T HAT I S N OT C ONNECTED T O

, O R A C OMPONENT O F

, T HE V OTING S YSTEM

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, i s developing a ballot-marking technology to be used with SBE’s o nline ballotdelivery system for certain absentee voters. SBE p roposes to make the technology available to military and overs eas civilian voters who are covered by the Uniformed and Oversea s 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 abs entee voters with disabilities for whom the technology is needed to vote privately and independently. You have asked for ou r opinion on whether SBE may implement the ballot-marking techno logy without first certifying it under a State law requi ring the certification of “voting systems.” See Md. Code Ann., Election

Law (“EL”) § 9-102.

It is our opinion that the State Board may implemen t the ballot-marking wizard for military and overseas civ ilian voters without obtaining certification under § 9-102. 2 As explained

1 UOCAVA applies to an “absent uniformed services vo ter” 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 m erchant marine, or their spouses or dependents, who by reason of the m ember’s duty are absent from the place of residence where the servic e member or spouse or dependent is otherwise qualified to vote. Id ., § 1973ff-6(1). The second category includes an “absent uniformed servi ces voter” whose active duty takes the voter overseas, as well as ce rtain U.S. citizens residing outside the United States. Id ., § 1973ff-6(5).

2 Unless otherwise noted, all statutory references r efer to the

current version of the Election Law Article reflect ed in the 2010 Replacement Volume of the Annotated Code of Marylan d and the 2011 Supplement and 2012 Cumulative Supplement.Gen. 32] 33

below, the evaluation and certification process pre scribed in § 9- 102 expressly applies to a “voting system,” which i s defined by statute as “a method of casting and tabulating ball ots 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 sys tem for casting and tabulating ballots or votes”). The pro posed technology—commonly referred to as a ballot-marking “wi zard”— allows voters to mark selections electronically on a downloadable ballot before it is printed, but it does not includ e a capability

either to “cast” or “tabulate” votes. The ballot w izard, therefore, does not itself meet the definition of “voting syst em.” Nor, in our opinion, does the ballot wizard modify a voting sys tem such that certification would be required under § 9-102. Alt hough the ballot-marking wizard performs a function that is p art of the voting process for the absentee voters who opt to u se it, it does

not interface or interact with the State’s certifie d optical-scan voting system. The statute does not unambiguously extend to stand-alone voting devices that, like the ballot-ma rking wizard, do not interact with the voting system that records an d tabulates

votes.

Maryland law does not require any specific evaluati on process for a stand-alone device that is not part o f the voting system. Certification under a voluntary federal pr ogram, which Maryland law has made mandatory for voting systems, is not available for an online ballot-marking tool regardl ess of whether it qualifies as a “voting system” under Maryland la w. Accordingly, an interpretation of § 9-102 that woul d require certification of the ballot tool as a “voting syste m” is not a matter of more, versus less, testing, or of applying a hig her performance standard in preference to a lower one. Instead, th e real consequence of that interpretation would be to proh ibit use of the ballot wizard altogether, regardless of its perform ance or potential benefit to overseas military and absentee voters.

Ballot-marking tools similar to that being develope d by SBE

will be available to absentee voters in other state s and to Maryland military and overseas voters using the Fed eral Write-In Absentee Ballot. Because we do not see that Maryla nd law plainly requires a different result, we believe tha t a reviewing

court would defer to the State Board’s reasonable i nterpretation of the law and regulations it administers and uphold t he SBE’s decision that the ballot wizard may be used for ove rseas 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 propose d use to assist voters with disabilities to vote privately and inde pendently. However, we note that, as to these voters, there may be othe r considerations unrelated either to the ballot-marking tool or Stat e certification

(continued . . .)34 [97 Op. Att’y

I

Background

Development of State Voting Systems Certification

The State Board and its predecessor agency, the Sta te Administrative Board of Election Laws (“SABEL”), ha ve for more than 40 years regulated the specifics of Maryl and’s voting process. SABEL was created in 1969 at a time when mechanicallever voting machines were required statewide for v oting 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 a ll voting machines were required to demonstrate, but State la w included no provision for a central certifying authority or a p rogram 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 introd uced in Montgomery County in the form of electronically tab ulated punch-card ballots. The county’s acquisition of a punch-card system was made contingent on SABEL’s approval of t he “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 device s. . . .” 1975

Md. Laws, ch. 877, § 2 (codified at former Article 33, § 16A-1 (1976 Repl. Vol.)). Because a punch-card system do es not operate in the same way as a mechanical lever syste m, many Code provisions regulating the lever machines were unsuited to the new system. For this reason, presumably, the G eneral Assembly also directed SABEL to promulgate rules an d regulations governing the use of the new punch-card system, including procedures for using the system in pollin g places on Election Day and canvassing votes following the ele ction. Id ., §

16A-1(d). 4

requirements that may limit the State Board’s abili ty to offer the device to non-UOCAVA voters. Specifically, there is a que stion whether

State law alone would authorize the electronic tran smission of absentee

ballots to non-UOCAVA voters, or whether other Stat e or federal law relating to voters with disabilities would support that practice. These separate and very different issues are beyond the s cope of your question regarding certification of the ballot wizard, and s o we do not address them in this opinion.

4 “‘Canvass’ means the entire process of vote tallyi ng, vote tabulation, and vote verification or audit, culmina ting in the production

and certification of the official election results. ” EL § 11-101(c)(1). In the context of absentee voting, “the ‘canvass’ incl udes 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 definitio n 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 certificati on gave SABEL broad discretion to decide what kind of evalu ation to conduct and what level of system performance to dem and. For example, the 1978 statute required only that SABEL “assure that elections are conducted with equipment best designe d 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 ac curately; and (4) [p]rotect all other rights of voters and candidates .” Former Article 33, § 16B-2(a) (1983 Repl. Vol.). These ba sic standards have been retained in current law, though others ha ve been

added. 5

In 1998, the General Assembly undertook a reorganiz ation

and revision of Article 33 in accordance with the

recommendations of the Commission to Revise the Ele ction

Code. 1998 Md. Laws, ch. 585 (then codified at for mer Article 33, § 9-102(d) (1997 Repl. Vol., 1999 Supp.)). SABEL was replaced by the newly created State Board of Electi ons, which was given enhanced supervisory authority with respe ct 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 technol ogy in election administration, including the development of a plan for a

any envelope accompanying an absentee ballot and th e 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, in cluding the commercial availability of the system and its compo nents and replacement parts, the efficiency of the system, th e likelihood of mechanical breakdown, its ease of understanding and convenience for the voter, the timeliness of its tabulation and rep orting 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 curren t law, in substantially the same form, as “considerations” fo r certification. See

EL § 9-102(e); see also infra note 10.36 [97 Op. Att’y

comprehensive computerized elections management sys tem.” Id

., § 2-102(b)(7). The 1998 Act also added to the Stat e’s certification program the requirement that voting syste ms be evaluated against voluntary federal standards. 6 Id ., § 9-102(c)(2).

Although the 1998 Act enhanced the State Board’s au thority in some respects, it did not require the statewide use of a single voting system, with the result that, as of 2000, vo ters in Maryland were using at least four different technologies to record and

tabulate their votes, as well as a number of differ ent models for each type of voting system. 7 After the 2000 presidential election, and the problems revealed by the Florida recount an d 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 system s technology used in Maryland. Executive Order 01.01 .2000.25. Legislation enacted in the following session direct ed the State

Board, in consultation with the local boards of ele ction, to select a uniform statewide voting system for use in polling places and a system for use in canvassing absentee ballots. 200 1 Md. Laws, ch. 564. The statute also added a requirement that the voting system be capable of creating a paper record of vot es cast in the event of a recount and included provisions regardin g the

6 The Act included as a standard for certification t hat the voting system has been: “(i) [e]xamined by an independent testing laboratory that is approved by the National Association of Sta te Election Directors; and (ii) [s]hown by the testing laborato ry to meet the performance and test standards for electronic votin g systems established by the Federal Election Commission. . . .” Former Article 33, § 9-102(c)(2)(i)-(ii) (1997 Repl. Vol., 1999 Su pp.).

7 For the 2000 presidential elections, four differen t types of voting systems and six different models were in use at pol ling places in Maryland. Montgomery County used a punch-card syst em; 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 sy stems. See

, e.g

., Department of Legislative Services, Office of Polic y Analysis, “Review of Election Administration in Maryland,” at 25-26 (Nov. 2001). For absentee voters, Montgomery and Allegan y Counties used a punch-card system; Dorchester County used paper bal lots; and Baltimore City and the twenty remaining counties us ed one of six different models of optical scan systems, from thre e different vendors.

See Special Committee on Voting Systems and Election Pr ocedures 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 u nfortunate number of ballots which are not punched in a clean, comple te way by the voter. After the current counting, it is likely legislativ e bodies nationwide will examine ways to improve the mechanisms and machiner y for voting.”).Gen. 32] 37

allocation of costs to acquire and operate the voti ng 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 tw o systems had been acquired and deployed statewide.

Maryland’s Current Voting Systems Requirements

The current version of § 9-101(b) of the Election L aw Article requires that “[t]he State Board, in consul tation with the local boards, shall select and certify a voting sys tem for voting in polling places and a voting system for absentee vot ing.” 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 pa per-based voting system that “records votes, counts votes, an d produces a tabulation of the vote count from votes cast on pap er 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 S tate Board has a duty to “periodically review and evalua te alternative voting systems” for certification. State Board reg ulations 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 Stat e.” COMAR 33.09.03.02A. The vendor is required to identify t he voting system by “specify[ing] clearly the specific equipm ent, hardware,

firmware, and software for which certification is s ought.” Id

., 33.09.03.02B(1).

9 The 2005 Voluntary Voting System Guidelines are a set of federally developed “specifications and requirement s against which voting systems can be tested to determine if the sy stems 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_guideline s.aspx (last visited Aug. 16, 2012). The 2005 guidelines are the third iteration of voluntary federal standards and were developed by the Electio n Assistance Commission pursuant to the Help America Vote Act. Id. The 2005 guidelines include accessibility standards, which t he General Assembly has adopted under certain circumstances. See

, e.g.

, EL § 9-102(f)(3) and (h)(1). Previous versions of the voluntary fed eral standards were developed by the Federal Election Commission and is sued as “voting system standards” in 1990 and 2002.38 [97 Op. Att’y

Section 9-102(d) sets out the standards that the St ate Board must apply when reviewing a voting system for certi fication:

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 re quirements of

the Americans with Disabilities Act, 42 U.S.C. §§ 1 2101 to

10 In addition to these performance or system-capabil ity standards,

the statute also directs the State Board to conside r other factors in making its certification decision, including the co mmercial availability of the system, cost of implementation, likelihood o f malfunction, efficiency of the system, convenience and ease of u nderstanding for the voter, timeliness of tabulating and reporting of el ection returns, the accessibility of the system for voters with disabil ities, and “any other

factor that the State Board considers relevant.” E L § 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 standa rds

contained in § 9-102 allow SBE considerable discret ion to decide what sort of evaluation is appropriate and what lev el of performance will be deemed acceptable. The notable exception is the requirement in subsection (d)(2), which makes c onformance testing by an accredited laboratory to federal voti ng system standards a necessary precondition to State certifi cation.

Provisions of Federal Law Relating to Voting System s

The Help America Vote Act of 2002 (“HAVA”) was the federal response to the widespread dissatisfaction with voting system performance in the 2000 presidential electio ns. That legislation required states to upgrade their voting systems to meet certain minimum requirements, provided federal gran ts for that purpose, and created the U.S. Election Assistance C ommission (“EAC”) to administer the grant program and to prov ide technical guidance to help states comply with the Act. The f ederal minimum standards imposed by HAVA apply to all voti ng 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 pla ces must notify voters of overvotes and the consequences of overvot ing and afford voters the opportunity to correct overvotes and ver ify 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 prog ram about the effect of overvoting and giving instructions on how to cor rect 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 al l states for purposes of state compliance with its requirements as to overvotes, auditing capability, and accessibility s tandards. However, the statute does not impose testing or cer tification requirements on any state, even for the limited pur pose of determining whether a state’s voting system is HAVA

compliant. 12

Section 202 of HAVA directs the EAC to adopt volunt ary voting system guidelines and to provide for the tes ting and certification of voting system hardware and softwar e. 42 U.S.C. § 15371(a). The guidelines provide a baseline agains t which voting systems can be tested. See supra , n.9. EAC certification, in turn, gives an assurance that a voting system, if deploye d and operated correctly, will perform to this standard. However, conformance

12 Because the EAC certification program uses the HAV A definition of “voting system,” see 2005 Voluntary Voting System Guidelines, Vol. I, p. A-19, that definition also serves to ide ntify what functions should be reviewable under the voluntary federal ce rtification program. However, apart from the capability to “cast and cou nt votes,” none of the other functions in the HAVA definition is expre ssly referenced in Maryland’s definition, though some of them (such as reporting of

election results and creation of an audit trail) ar e included by implication insofar as no system can be certified b y the State Board without these capabilities. See EL § 9-102.Gen. 32] 41

testing under the EAC program is purely voluntary f or the states, as is the selection of which voting system guidelin es, if any, a state’s voting system should meet. Neither HAVA no r any other federal law mandates the testing or certification o f voting

systems.

The EAC certification program is limited in other r espects as well. Most importantly for our purposes, EAC certi fication is not available for individual components of a voting sys tem. 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 of ficial recognition that a voting system (in a specific con figuration or configurations) has been tested to and has met an i dentified set of Federal voting standards.”). Although federal voti ng system guidelines do include testing standards for differe nt parts or subsystems of a voting system and for testing inter faces between components, the certification attests only to the o verall performance of the specific configuration or config urations 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 indi vidual system components or untested configurations.”). And beca use 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 milita ry 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 ba llots to UOCAVA voters electronically and by mail for any el ection for

federal office, 42 U.S.C. § 1973ff-1(a)(7), and all ow those voters to designate which transmission method they would p refer. Id ., § 1973ff-1(f)(1). “To the extent practicable,” each state must ensure that its transmission procedures “protect th e security and integrity of absentee ballots” and that “the privac y 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 offe rs 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 deli very will be notified by e-mail that his or her absentee ballot is ready and will42 [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). F rom 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 app ropriate local board of elections for review, inspection, and tabu lation 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 sys tem, which requires heavier paper and printed “timing marks” t o 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-r eady 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 “duplicat e” 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 de veloped for the Federal Voting Assistance Program (“FVAP”), a unit within the Department of Defense that was establish ed 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 Probl em,” 34 Fordham Urb. L.J. 935 (April, 2007). The FVAP soli cited grant proposals under 10 U.S.C. § 2358 to develop and imp lement technologies to make voting more accessible for UOC AVA

voters. See 10 U.S.C. § 2358(a)(2)(B) (authorizing the Secretar y of Defense to engage in research and development pr ojects of “potential interest to the Department of Defense”). In 2011, SBE applied for and received a grant of $653,719 to dev elop an online voter-registration system for use by UOCAVA voters and to make

certain enhancements to the State’s online ballot-d elivery system, including the development of a ballot-marking wizar d. See “DoD Awards Grants for State & Local Military/Overseas V oting Systems” (Nov. 3, 2011), available at http://www.fvap.gov/ global/news/2011news/nr29-2011.html (last visited A ug. 14,

2012); see also Maryland State Board of Elections, Technical Proposal, “Online Voter Registration & Ballot Marki ng and Counting: An Adaptable and Open Source Solution” (“ GrantGen. 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 wi zard would give military and overseas civilian voters the opti on to download the ballot from the SBA’s website, make voting sele ctions on the voter’s computer, review a summary screen showing t hose selections, and print out a ballot with the selecti ons marked. Grant Proposal at 7. The wizard would notify the v oter 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 ball ot, canvassers scan the barcode to generate a duplicate ballot, as opposed to duplicating the ballot by hand, as is the current p ractice. Id . at 7- 9. The Grant Proposal explains the expected benefi ts 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 pr oposal was to create a “generic, system neutral interface” that c ould 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 o f the Election Law Article extend to the State Board’s pr oposed use of a ballot-marking wizard is, at its heart, an issue of statutory construction. In construing a statute, the “cardin al rule” is to ascertain and give effect to the actual intent of t he 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 un ambiguous language of the statute” and will not “construe a s tatute with forced or subtle interpretations that limit or exte nd 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 cri teria. “Voting system” is elsewhere defined as “a method of castin g 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 “cas ting and tabulating” votes, whether it be based on punch-car ds, opticalscans, or any other type of platform that would lat er be developed. This reading is confirmed by the historical develop ment of the State certification program, where State-level cert ification began as a legislative response to the problem of managin g the use in different counties of new and various voting system technologies in place of the comparative uniformity that had exi sted previously, when all counties used mechanical-lever systems in accordance with the rules set out in the Maryland C ode.

Given this apparent purpose to include the complete array of developing technologies, it is unremarkable that ne ither the definition of “voting system,” nor the certificatio n statute itself, undertakes to list the particular functions or comp onents that must be included in a voting system. The multiplicity o f voting systems in place at the time would have made it exc eedingly difficult to identify which components are necessar ily embraced by the term “voting system.” Instead, the State de finition identifies a voting system only with regard to the core functions that would be expected of any technology used to co nduct an election: the casting and tabulating of votes.

In practice, the specification of which components are considered part of the voting system is a responsib ility of the manufacturer that requests State or EAC certificati on becauseGen. 32] 45

certification attaches only to the particular confi guration of

hardware and software that the manufacturer or vend or 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 l ess 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 certificat ion available under § 9-102 is for the entire voting system operating as a system

.

The legislative intent to create an evaluation proc ess reserved for complete voting systems is reflected i n the capabilities, performance standards, and other cons iderations 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 qual ify as a voting system or be used as a component in a voting system

. 13

Consistent with this understanding of the basic sco pe 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 perf orm either of the core functions of a voting system und er Maryland law: the “casting or tabulating” of votes. “Cast, ” in the voting sense, means “[t]o formally deposit (a ballot) or s ignal one’s choice (in a vote),” Black’s Law Dictionary 246 (9t h 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)). Eve n in its more common meaning, the word “cast” connotes motion. M erriam Webster’s Collegiate Dictionary (10th ed. 1993) (“t o cause to move or send forth by throwing”). Although diction ary

13 Federal law reflects a similar understanding that the word “system” implies some level of integration or commo n operation. For example, the 2005 federal guidelines define an “ele ctronic voting system” to be “one or more integrated devices that utilize an electronic component for one or more of the following function s: ballot presentation, vote capture, vote recording, and tab ulation. . . .” Voluntary Voting System Guidelines, Appendix A: Glo ssary, at A-10 (defining “electronic voting system,” (emphasis add ed)), available at http://www.nist.gov/itl/vote/upload/VVSG-Volume-IAp pendixA.pdf (last visited Aug. 16, 2012).46 [97 Op. Att’y

definitions do not resolve the interpretive issue b efore us, we believe that, on balance, they marginally favor a r eading 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 se lections on a ballot and casting a ballot is clearly delinea ted. HAVA, for example, requires that voters be afforded an opport unity to “verify . . . the votes selected” and correct any e rrors 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 (d efining

“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 distin ction 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 deposi ting of the ballot in the custody of the election officials which cons titutes 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 allowin g absentees to request assistance).

The term “casting” is also frequently used to encom pass 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 pri vate 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 “elec tors who deposit their absentee ballots at a polling loc ation during the absentee-voting period have cast their ballots unde r 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 ball ot without officially submitting it for counting does not, by itself, amount to “casting” a ballot or vote. Marking is precisely w hat the proposed

ballot wizard does, and no more.

The difference between the vote recording and tabul ating that a voting system performs and the ballot markin g that a UOCAVA voter performs through the use of the wizard is not merely linguistic; marking selections on an absente e ballot and officially recording one’s vote are distinct proces ses. The proposed ballot wizard lacks any capability for sen ding, receiving, or officially recording voted ballots. Nor does the online ballot-delivery system enable voters to subm it their ballots electronically for direct tabulation by another dev ice or system. AGen. 32] 47

technology that included either of these two abilit ies might well bridge the gap between the two processes and thereb y constitute a method for casting a ballot or vote. But the ballo t wizard does neither. Voters using the online wizard can only c ast 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 proce ss. Instead of the current system of hand-marking the absentee’s s elections onto the ballot card so that it can be fed into the opti cal-scan system, election workers handling a paper ballot marked wit h the wizard will scan the barcode to automatically generate the duplicate ballot card. But using either method to mark the d ownloaded ballot, the duplicate card is checked against the v isible marks the voter made on the paper ballot, which remains the o fficial record of his or her vote. If the ballot generated from t he barcode does

not match the visible record the voter has marked o n the original paper she has submitted—where, for example, a voter using the ballot wizard later uses a pen to change her select ion after printing

the ballot—the visible record is used to create the duplicate and the barcode is disregarded. In this respect, the b arcode is but a

scrivener’s tool, an administrative convenience for streamlining and regularizing the intermediate process of copyin g the absentee voter’s choices into a system-readable format. At no point does

the use of the barcode affect either the voter’s se lections or the voting system itself.

The conclusion that a ballot wizard is not a “votin g system” is generally consistent with the way others, includ ing the EAC, regard the technology. In response to a question f rom the State

Administrator of Elections on how the EAC would vie w 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 vo ting system as defined in the V[oluntary] V[oting] S[ystem] G[uide lines] and therefore are not considered eligible for testing a nd certification under the EAC program.” Memorandum of Brian Hancoc k, Director, EAC Testing and Certification Division, t o 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 o f the current lack of a quorum of Commissioners.” Memorandum of Brian Ha ncock, Director, EAC Testing and Certification Division, t o 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 c onclusion when she determined that a technology similar to SBE’s b allot wizard

did amount to a voting system. The California Secreta ry 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, Californ ia, 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 interpre tations. Putting aside whether the ballot wizard “casts” bal lots, it clearly does not “tabulat[e]” them, something Maryland’s de finition 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 sof tware, 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 i s very different from Maryland’s. In California, every co unty may choose its own voting system whereas, in Maryland, the State Board selects a single statewide system that must b e used “in all

counties.” EL § 9-101(c); see generally Letter of Debra Bowen, Secretary of State, California, to Bryan Finney, Pr esident, 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 vo ting 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 rea ding of the California statute, legislation has been introd uced to clarify the difference between a “ballot marking system” an d a “voting system,” and to specify that the term “voting syste m” does not include the type of ballot-delivery and ballot-mark ing 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_190 1-1950/ab_ 1929_bill_20120628_amended_sen_v95.pdf (last visite d 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 marki ng 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 capabi lities ( e.g

., the ability to store voting selections or tabulate votes) and requires the Secretary of State to establish new pr ocedures for the review and approval of such systems. See California AssemblyGen. 32] 49

Bill 1929, Third Reading, § 5 (proposing to amend t he California Elections Code by adding §§ 19260 to 19275). 15

A number of other jurisdictions already appear to o ffer ballot-marking tools to assist UOCAVA voters in com pleting 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, lik e Delaware, that have voting system certification requirements analo gous 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 sche mes make comparisons difficult and of relatively limited hel p in our analysis. Still, it seems fair to conclude that so me other states

have, at a minimum, viewed online absentee ballot s ystems 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 onli ne blank ballot delivery and online marking system would make Maryl and the only one of the 24 states with similar tools with s uch a requirement; to date, no other State has required t heir system pass pre-certification requirements.”). That appears to be the effect of the proposed legislation in California. We think t he 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-20 00 Voting System

For similar reasons, we conclude that the ballot wi zard does not modify Maryland’s voting system such that its u se would trigger the certification requirement. Maryland vo ters use one of two certified voting systems—a touchscreen system f or voting in polling places and an optical-scan system for absen tee 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 Gener al Assembly session would have expressly authorized the develop ment of an on-line ballot-marking tool and the fax or internet transmi ssion of ballots for military or overseas voters and voters with disabil ities 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 legislativ e 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 du ring the absentee ballot canvass. Canvass procedures contro l the handling

of returned ballots, COMAR 33.11.04, and determinat ions about whether the ballots are accepted or rejected, COMAR 33.11.05.

To record and tabulate votes, election officials ma nually feed ballot cards into the AccuVote unit, the scanning a pparatus that

records and counts votes and tabulates the results. COMAR 33.10.11.01B. Thus, apart from the unit’s programm ing, 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-20 00 system and would not interface at any point with the optic al-scan unit. The configuration of the ES-2000 system would remai n 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 crea ted from the ballot wizard is never introduced into the optical-scan sy stem, but is instead separated from the vote-recording and tabul ation processes by intermediate procedures needed to dupl icate 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 o f the opticalscan system. 17 For these reasons, we do not think that use of th e ballot wizard would represent a modification or add ition to the ES-2000 absentee system.

16 A pdf annotator is a type of commercially availabl e software that enables the user to electronically mark documents p rovided in the commonly used portable document format, or “pdf,” u sing either a touchscreen or keyboard.

17 Commenters expressed concern about the security of the ballot wizard and the possibility that malware or other co mputer viruses present on the absentee voter’s computer might caus e the wizard to misidentify the voter’s selections. It is our unde rstanding 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 addre ss here, it is an aspect of that decision that is properly left to the agenc y 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 20 09, the State Board required certification of the polling-place u se 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 recor d and met the relevant HAVA accessibility standards. 2007 Md. La ws, chs.

547, 548. If no system meeting both requirements were commercially available, a statutory contingency pla n allowed for an alternative procurement. 2009 Md. Laws, ch. 428

. Opticalscan systems without a ballot-marking device to ass ist voters with disabilities did not meet the accessibility standar ds. And though accessible ballot-marking devices had been develope d, no opticalscan system had been certified to the Voluntary Vot ing System Guidelines with the ballot-marking device included as a component of the system. The question arose, there fore, whether the contingency had been met or whether the optical -scan system and the marking device together were a “commerciall y available” voting system, despite the lack of federal certific ation for that configuration of system components. See generally SBE

Memorandum to Offerors, “Determination of Commercia l Availability & Cancellation of Solicitation #D38B92 00010 (May

11, 2009).

With advice from this Office, SBE concluded that certification of the ballot-marking device was requ ired under § 9- 102 and therefore no qualifying system was availabl e. Id . In that situation, the ballot-marking device had to be rega rded as part of the voting system for both legal and technical reas ons. As a strictly legal matter, State law required a voting system that met accessibility standards. EL § 9-102(f), (g). Ther efore, if the ballot-marking device was necessary for the system to meet those standards, the ballot-marking device had to be cons idered as part of the system for certification purposes. Moreover , from a more technical perspective, the proposed use of the ball ot-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 int eracted with the optical-scan system to this extent and its perf ormance and accuracy, and the quality of the marks on the ballo t card would directly impact the performance of the optical-scan system.

By contrast, the ballot-marking wizard does not its elf mark selections on the ballot card—the casting mechanism used by the ES-2000 system—and so does not have the same potent ial to modify or affect the performance of that system. M orever, 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 marke d selections at her leisure and to make any corrections she finds n ecessary.52 [97 Op. Att’y

These important differences, in terms of system per formance and accuracy, illustrate the principle that a ballot-ma rking tool may be considered part of a voting system if it is integra ted into or connected with that system. See

, e.g. , COMAR 33.09.01.01B(4)(b)(ii) (defining “voting system” to include a “voting mach ine, 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 ne ed for testing

and certification as to these core functions would arise where the ballot-marking tool is integrated into the voting s ystem 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 i ntegrated, and the facts support its determination, we conclude th at 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 compo nent of a complete voting system, it views the proposed ballo t-marking wizard as separate from, and thus not a part or com ponent of, the certified optical-scan system. See generally

, Letter of Linda

Lamone, Administrator, SBE, to Sen. Brian Frosh (Fe b. 6, 2012). Certainly, other readings are possible; the statute offers no clear rule on how to define the limits of a system, excep t 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 ho w to define those limits becomes more technical than legal, req uiring the exercise of expertise about voting systems, their c omponents, 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 w e believe that a reviewing court would afford SBE’s interpretation o f “voting system” considerable deference.

“‘[A]n administrative agency’s interpretation and a pplication 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 interpr etation of the

statute it administers “is all the more warranted w hen, as here, the regulation concerns ‘a complex and highly technical regulatory program,’ in which the identification and classific ation 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) (quotingGen. 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 o f the certification provisions is entitled to deference f inds support in Schade v. Maryland State Bd. of Elections . There, the Court of Appeals concluded that SBE’s certification of a vot ing system

was entitled to deference because the certification decision was “a matter of policy or quasi-legislative in nature,” a nd because “the statutory requirements . . . give the State Board b road discretion to weigh various factors and ultimately decide on a system. . . .”

401 Md. at 38-39. Within the context of the certif ication of voting systems, the Court stated, the State Board w as “no doubt, in a better position to carry out the charge delega ted 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 wi zard neither

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

deference that it afforded the certification decisi on in Schade . In

addition to the “broad discretion” described in Schade , the Legislature delegated to the State Board the interp retive responsibility to promulgate regulations construing the certification process and its applicability to voti ng 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 v oting-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 dele gated,” 401

Md. at 39, we believe that the technical decision a t 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 app lication 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 disagreemen t with the State Board’s understanding of § 9-102. In the ir view, when technology is used to mark ballots, it is so intert wined with the voting process that it necessarily becomes a part o f the voting system. In addition, they note that the wizard per forms functions that fall within the HAVA definition of “voting sys tem” and also that there are federal guidelines that address ball ot marking. Finally, they express a concern that if § 9-102 is not construed to54 [97 Op. Att’y

require certification, the protection it offers to voters would be

undermined.

Although we see merit in these arguments, ultimatel y 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 ba llot-marking tool. Instead, that definition focuses on “casting and tabulating

ballots or votes,” EL § 1-101(xx), which is somethi ng the ballotmarking wizard does not do. Furthermore, the text of § 9-102 itself does not address the question of how the Sta te Board should evaluate any particular voting-related device, exce pt in the context of a complete voting system. The absence f rom § 9-102 of any provision for testing separate devices sugge sts that this is a case the Legislature has simply not provided for, r ather 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 n ot been changed subsequently to conform to the federal defi nition. 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 feder al definition including within its reach a number of s pecific aspects of voting. The two definitions also operate very d ifferently in this context; § 9-102 imposes certification testing for devices covered by the term “voting system,” whereas HAVA imposes n o certification process whatsoever and fairly minimal performance requirements. Thus, using the broadest possible de finition of “voting system” for purposes of HAVA would pose lit tle 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 tec hnology. In sum, we would hesitate to regard the federal defini tion as a gloss

on the State definition.

A further problem with interpreting § 9-102 to auto matically 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-deli very system as well. That system performs a ballot-presentation f unction, 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 tech nology that carries out a covered function requires State certi fication, as some have proposed, it follows that the online ballot-de livery system would be subject to that process too. We are unawa re of any state having adopted so expansive an interpretation of it s certification requirements, and we do not believe Maryland law co mmandsGen. 32] 55

this result either. For these reasons, we do not t hink the commenters’ proposed reading of § 9-102 best reflec ts the language or structure of the statute.

With respect to commenters’ concern about the prote ction of the voting system, the full certification regime pr escribed in § 9- 102, including testing under the EAC program, is de signed to provide assurance about the security and reliabilit y of the entire voting system and is, presumably, appropriately tho rough to suit that purpose. Because even small modifications to the voting system have the potential to affect the system in u nknown ways, re-testing and re-certification are also necessary following virtually any change to the system or a system comp onent 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 n o evaluation or testing is necessary; even in the absence of cer tification, the State Board may not act unreasonably in implementin g 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 a uthority, and not arbitrary, capricious, or unreasonable). The S tate Board must

make the determination to move forward with the bal lot 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 i ntegrity are maintained in the casting of ballots, canvass of vo tes, and reporting of election results,” EL § 1-201(6), and that each ballot is “easily understandable,” “present[s] all candida tes and questions in a fair and non-discriminatory manner,” “permit[s] the voter to easily record a vote on questions and on t he voter’s choices among candidates,” “protect[s] the secrecy of each voter’s

choices,” and “facilitate[s] the accurate tabulatio n of the choices of the voters.” EL § 9-203. These statutory stand ards continue to apply in the absence of certification, with the Sta te Board delegated the authority to determine, in the exerci se of its

18 Notably, the circumstances under which SBE may dec ertify a previously certified voting system do not include t he loss of federal

certification. See EL § 9-103(a)(2) (requiring de-certification “if th e State Board determines that the system no longer me rits 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 recor d 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 UOCA VA voters in light of the unique challenges these voters face. A known problem for all absentee voters, as compared to vot ers 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-IAp pendixA.pdf (last visited Aug. 16, 2012). SBE’s ballot wizard is meant to address this problem by preventing overvotes and un dervotes and by reducing the incidence of errors during the ball ot-duplication process. Thus, provided SBE acts reasonably in tes ting the ballot wizard and deciding whether it is safe to deploy, m aking that tool available to UOCAVA voters appears to us to be cons istent with the statute and legislative intent. Given SBE’s st atutory duty to “maximize the use of technology in election adminis tration,” EL § 2-102(b)(7), and the goal of the Election Article to emphasize

“citizen convenience,” EL § 1-201(5), we believe th at the better interpretation of § 9-102 is not one that effective ly 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 reaso nably conclude that the ballot-marking wizard it proposes for UOCAVA voters does not itself constitute, or modify, a “vo ting system” such that it is subject to the certification requir ements 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 th e preparation of this opinion.

Editor’s Note :

Since the issuance of this Opinion, the California State Legislature passed Assembly Bill 1929, which is dis cussed onGen. 32] 57

pages 44 and 45 of this Opinion. Governor Brown si gned the measure into law on September 28, 2012, and it was “chaptered” by the Secretary of State as Chapter 694, Statutes of 2012.