152 [98 Op. Att’y

ELECTION LAW

VOTING SYSTEMS – STATUTORY CONSTRUCTION – REQUIREMENT

THAT VOTING SYSTEMS NOT CREATE A “SEGREGATED 

BALLOT” FOR VOTERS WITH DISABILITIES

December 18, 2013

Linda H. Lamone

Administrator, State Board of Elections

On behalf of the State Board of Elections (“SBE” or “the State 

Board”), you have requested our opinion regarding the meaning of 

the term “segregated ballot” as it appears in the statutory 

requirements governing the certification of voting systems for use in 

Maryland. Those requirements specify that a voting system, to be 

certified, must meet certain State and federal standards and “provide 

access to voters with disabilities that is equivalent to access afforded 

voters without disabilities without creating a segregated ballot for 

voters with disabilities.” Md. Code Ann., Election Law (“EL”) § 9-

102(f)(1). The requirements set forth in § 9-102 also specify that the 

voting system must be based on the preparation of a voter-verifiable 

paper ballot. Because many voters with disabilities are unable to 

prepare a hand-marked paper ballot, however, the voting systems 

will need to include a computerized ballot-marking device that 

allows the voter to make selections through other non-written means 

and then print a paper copy of the ballot.

The State Board of Elections (“SBE”) has begun the process of 

selecting a new optical scan voting system for use in Maryland 

beginning with the 2016 Presidential Election. The first step in that 

process is the certification of those voting systems that are compliant 

with Maryland’s standards. It is within this context that you ask 

what constitutes a “segregated ballot” under State law. Specifically, 

you ask:

1. Does segregation occur by virtue of the fact 

that the ballot created by the ballot marking 

device is different and distinguishable from the 

hand marked ballots? Or, does segregation 

only occur if ballots are cast, counted, and 

stored in a physically separate and distinct 

manner? 

2. Does the determination of whether a 

segregated ballot has been created depend in 
Gen. 98] 153

part on how the system is intended to be 

deployed and utilized? For example, assume 

the ballot marking device could be deployed in 

a manner such that it is an optional voting 

method for all voters, as opposed to only an 

accessible voting solution for voters with 

disabilities. Would such a deployment and 

utilization affect the analysis of what 

constitutes a segregated ballot?

In our opinion, the General Assembly, by using the term

“segregated ballot,” intended to ensure that the ballots cast by voters 

with disabilities could not be identified as such during the process of 

casting, counting, and, if necessary, re-counting the paper ballots 

cast in an election. As we see it, the State Board has three options 

for certifying voting systems that can be used without creating a 

segregated ballot for voters with disabilities. First, SBE may require 

all voters to use a voting system that is accessible to voters with 

disabilities. This option would not segregate ballots in any way, but 

the cost and inefficiency of such a system—which the statute 

requires SBE to consider—might weigh against it. Second, SBE 

may certify an accessible voting system that generates a ballot that is 

formally identical to those ballots cast by non-disabled voters so 

long as all ballots are cast, counted, and stored together. Finally, 

after considering the legislative history and the definitions and usage 

of the term “segregated,” we conclude that the statute permits SBE 

to certify an accessible voting system that generates a non-identical 

ballot, so long as voting procedures are implemented to ensure that 

non-disabled voters use the accessible system as well and do so in 

sufficient numbers to prevent the resulting ballots from being 

identified as having been cast by voters with disabilities. 

I

Background

As the twentieth century came to a close, Maryland’s voting 

infrastructure comprised a wide variety of voting systems, with each 

county responsible for choosing which type of system to employ. 

See 97 Opinions of the Attorney General 32, 36 n.7 (2012) 

(describing how, by 2000, Maryland counties employed four 

different types of voting systems: punch-card, mechanical lever, 

optical scan, and direct-recording electronic touchscreen). The 

experience of the 1994 gubernatorial election, with its narrow 

margin and vote count problems, highlighted the “myriad of 

administrative problems” associated with Maryland’s patchwork 
154 [98 Op. Att’y

quilt of voting systems. Schade v. Maryland State Bd. of Elections, 

401 Md. 1, 8 (2004). The potential significance of those problems 

was magnified by the 2000 presidential election and the national 

attention it focused on the “unfortunate number” of ambiguous 

ballots produced by punch-card balloting machines. Bush v. Gore, 

531 U.S. 98, 104 (2000); see also 97 Opinions of the Attorney 

General at 34-37.

In 2001, the General Assembly responded with legislation to 

modernize the conduct of elections in Maryland. The legislation 

mandated a uniform, statewide, voting system for State and federal 

elections and charged a single agency—the State Board—with 

overseeing the operation of that system. Under this new system, 

SBE, “in consultation with the local boards [of elections],” was 

given the authority to “select and certify a voting system for voting 

in polling places and a voting system for absentee voting.” 2001 

Md. Laws, ch. 564; EL § 9-101(b). The State Board, following the 

directive in the 2001 legislation, then certified, selected, and 

procured a “direct recording electronic” or “DRE” unit, which 

provides for the voting and tabulation of votes directly by a 

computerized touchscreen system without the need for paper 

ballots.1 See generally Schade, 401 Md. at 7-9; 97 Opinions of the 

Attorney General at 36-37.

The new DRE system certified by SBE represented an advance 

over the previously-used paper ballot systems in many respects. The 

computerized systems eliminated the need to interpret ambiguous 

handwritten ballots, allowed for easier and more efficient re-counts, 

and in some ways made the voting process more user-friendly. 

Schade, 401 Md. at 8-9. Most relevant to our purposes, the 

touchscreen system included features that enabled many voters with 

disabilities to cast their ballots without assistance, id. at 9, and in a 

manner that made their ballots indistinguishable from non-disabled 

voters. As the Court of Appeals observed in Schade, the 

touchscreen system represented the “first time [that] blind voters 

were able to vote independently and secretly” on the same basis as 

non-disabled voters. Id. at 21.

 

1 Absentee and provisional ballots—which are completed on paper—

were tabulated through the use of an optical-scan system. See, e.g., State 

Board of Elections, Overview of Maryland’s Voting System, 

http://www.elections.state.md.us/voting_system/index.html (last visited 

Dec. 9, 2013).
Gen. 98] 155

Although the touchscreen system represented a step forward in 

many respects, some observers believed that it came at the cost of 

election integrity because the system did not leave a “paper trail” 

that would allow for independent verification of the accuracy of the 

vote tabulation. Because the voter’s selections on the touchscreen 

were recorded by computer and computer alone, the paper ballot 

image that the system was able to generate merely verified the 

computer’s selections, not the voter’s. Id. at 18 n.22. Concerns 

about electronic security and the potential for vote manipulation 

prompted opponents of the new DRE system to file suit to block its 

use in the 2004 presidential election. That litigation

2

culminated in 

Schade, in which the Court of Appeals upheld SBE’s procurement 

of the DRE systems as a reasonable exercise of the “broad 

discretion” delegated to it by the General Assembly. See id. at 38-

39.3

Undaunted, the opponents of the computerized system turned 

to the Legislature and there found success. In 2007, the General 

Assembly enacted legislation directing SBE to certify, for use in 

elections after January 1, 2010, a voting system that would provide a 

“voter-verifiable paper record.” EL § 9-102(d)(1)(vii). A voterverifiable paper record is defined as “a paper ballot” that is either 

“prepared by the voter for the purpose of being read by a precinctbased optical scanner,” “mailed to the applicable local board,” or 

“created through the use of a ballot marking device.” EL § 9-102(a). 

As required by statute, the paper record must be an individual 

document that is “not part of a continuous roll”; it must be 

“sufficiently durable to withstand repeated handling for the purposes 

of mandatory random audits and recounts”; and it must “use[] ink 

that does not fade, smear, or otherwise degrade and obscure or 

obliterate the paper record over time.” EL § 9-102(d)(1)(vii); 2007 

Md. Laws, chs. 547, 548.4 

 

2 The litigation was brought by “a group of registered Maryland 

voters and candidates.” Schade, 401 Md. at 13. SBE defended its 

decision, and the National Federal of the Blind intervened in support of 

SBE. Id. at 15.

3 The Court initially announced its decision by Order issued after oral 

argument on September 14, 2004. Schade v. Maryland State Bd. of 

Elections, 383 Md. 208 (2004). The Court later set forth its reasoning in 

an opinion issued on August 24, 2007. See 401 Md. at 25.

4 The General Assembly passed two identical, cross-filed bills—S.B. 

392 and H.B. 18—which were subsequently signed by the Governor.
156 [98 Op. Att’y

Advocates for the disability community opposed the legislation 

in part on the grounds that it would compromise the secrecy of 

disabled voters’ selections. Because many voters with disabilities 

are unable to mark paper ballots, they would have to use “ballot 

marking device[s],” EL § 9-102(a)(3), to make their selections 

without assistance. The advocates expressed the concern that the 

resulting ballots—particularly if cast, counted, and stored 

separately—could be identified as having been cast by a voter with 

disabilities, and they proposed an amendment to address the 

problem. In an effort to alleviate these concerns while still 

providing for a paper trail, the General Assembly adopted the 

proposed amendment drafted by one of the opponents of the 

legislation and enacted the provision we must construe here: 

A voting system selected, certified, and 

implemented under this section shall . . . 

provide access to voters with disabilities that is 

equivalent to access afforded voters without 

disabilities without creating a segregated ballot 

for voters with disabilities.

EL § 9-102(f)(1).

For reasons not relevant to this opinion, SBE is just now 

beginning the process of certifying and selecting a new optical scan 

voting system for use in polling places. A polling-place optical scan 

voting system requires the voter to fill out a paper ballot by using a 

pen or other ink-based marker. That ballot is then fed into a scanner 

that reads and counts the voter’s selections. Voters who have 

disabilities that prevent them from hand-marking paper ballots and 

who wish to vote without the assistance of others must use a ballotmarking device that provides a touchscreen interface for the voter to 

make his or her selections. The ballot is printed, scanned by the 

optical scan voting unit, and then stored in the same ballot box as the 

hand-marked ballots.

You have stated that some ballot-marking devices might 

produce ballots that are different from those that are hand-marked. 

For example, the ballots might show only the voter’s selections and 

not the full contests, the ballots might be a different size from the 

ballots generated by non-disabled voters, or there may be a barcode 

at the top of the ballot. You asked whether any of these differences 

mean that those ballots are “segregated” in violation of § 9-

102(f)(1), or whether segregation occurs only when those ballots are 

cast, counted, and stored in a physically separate and distinct 

manner. In addition, you asked whether making the accessible 
Gen. 98] 157

system available to all voters could prevent segregation of the 

ballots.

II

Analysis

The meaning of the term “segregated ballot” within § 9-

102(f)(1) is a matter of statutory construction, the cardinal rule of 

which is “to ascertain and effectuate the real and actual intent of the 

Legislature.” Lockshin v. Semsker, 412 Md. 257, 274 (2010). 

To ascertain the intent of the General 

Assembly, we begin with the normal, plain 

meaning of the language of the statute. If the 

language of the statute is unambiguous and 

clearly consistent with the statute’s apparent 

purpose, our inquiry as to legislative intent 

ends ordinarily and we apply the statute as 

written, without resort to other rules of 

construction. . . . Where the words of a statute 

are ambiguous and subject to more than one 

reasonable interpretation, or where the words 

are clear and unambiguous when viewed in 

isolation, but become ambiguous when read as 

part of a larger statutory scheme, a court must 

resolve the ambiguity by searching for 

legislative intent in other indicia, including the 

history of the legislation or other relevant 

sources intrinsic and extrinsic to the legislative 

process. . . . In every case, the statute must be 

given a reasonable interpretation, not one that 

is absurd, illogical, or incompatible with 

common sense.

Id. at 274-76 (citations omitted). 

The statute itself does not resolve the issue; it neither defines 

the term “segregated ballot” nor suggests by its structure or context 

a specific meaning. Rather, as your questions suggest, the term 

could be read to imply difference, and require that the ballot created

by the ballot-marking device be indistinguishable from hand-marked 

ballots, or it could imply separation, and require only that ballots 

cast by disabled voters not be counted or stored separately from all 

others. Neither meaning is clear from the text. To resolve the 

statutory ambiguity, we will look to the usage of the term 
158 [98 Op. Att’y

“segregated ballot” in other authorities, the dictionary definition of 

“segregated,” and the legislative history of § 9-102(f)(1). 

A. The Use of “Segregated Ballot” in Other Contexts and the 

Dictionary Definition of “Segregated”

There are no reported cases in Maryland or other jurisdictions 

that construe the term “segregated ballot.” However, one Maryland 

case and a few authorities in other jurisdictions have used the term 

in passing. The Maryland case used the term “segregated ballot” to 

describe absentee ballots that had been set aside because they lacked 

the statutorily-required application to submit such a ballot. See 

Pelagatti v. Board of Supervisors of Elections for Calvert County, 

343 Md. 425, 433 n.8 (1996) (observing that “of the 19 segregated 

ballots found to be lacking applications, 14 were for O’Donnell, 3 

were for Pelagatti, and 2 were for neither candidate”). The only two 

reported cases from other jurisdictions use the term in a similar way 

to describe ballots that, because of some irregularity, have been set 

aside. See Finkelstein v. Stout, 774 P.2d 786, 793 (Alaska 1989) (on 

remand, requiring lower court to deduct the “nine segregated 

ballots” that were determined to be illegal and had been “counted 

but not commingled” with the other ballots); Powers ex rel. LaBelle 

v. Monahan, 132 A.2d 97, 99 (R.I. 1957) (describing contention that 

“the board of canvassers erred in rejecting the three segregated 

ballots” that were in dispute because of stray markings). These few 

cases suggest that the term “segregated ballot” denotes separation, 

rather than difference.5

We also looked for the term “segregated ballot” in the federal 

election laws and regulations as well as those of other states. Maine 

has the only state or federal statute or regulation that uses the term, 

 

5 A number of other cases, even though they do not use the term 

“segregated ballot,” refer in passing to ballots that must be “segregated” in 

some way. As best as we can tell, all of these cases also use the word 

“segregated” to mean some form of separation and not a mere difference 

between ballots. See, e.g., Rossello-Gonzalez v. Acevedo-Vila, 483 F.3d 1, 

4 (1st Cir. 2007) (noting that three disputed ballots were “segregated” 

from the others); Unger v. Superior Court, 37 Cal. 3d 612, 633 (1984) 

(“Candidates for the ‘judicial,’ ‘school’ and ‘county and township’ offices 

should be segregated from the partisan offices on the ballot.”); State ex. 

Rel. Lukovich v. Johnston, 150 Tex. 174, 178 (1951) (“‘Where illegal 

votes can be segregated, only those votes should be thrown out, and the 

entire vote need not be impeached, but where it is impossible to separate 

improperly marked ballots from the others the votes of a whole district 

may be excluded.’” (quoting 29 C.J.S. Elections 193)). 
Gen. 98] 159

and uses it in the sense of being separate from other ballots. The 

Maine statute describes ballots that, because they have been 

“spoiled” by the voter, must be “segregate[d] . . . with any other 

spoiled ballots in an envelope labeled ‘Spoiled ballots.’” 21-A 

M.R.S. § 693 (2013) (requiring the election official to “package and 

return the envelope of segregated ballots” in accordance with other 

provisions). Like the cases discussed above, the Maine statute does 

not interpret the term “segregated ballot,” does not use it in a 

regulatory manner, and does not evaluate it within the context of the 

voting rights of people with disabilities. Nevertheless, its usage of 

the term is consistent with the cases that use the term to denote 

separation rather than difference.6 

We turn next to the “ordinary, popular understanding of the 

English language” reflected in the dictionary to ascertain the 

meaning of the term “segregated.” Kramer v. Liberty Prop. Trust, 

408 Md. 1, 21 (2009) (internal quotation marks omitted). The 

Merriam-Webster Dictionary defines the term as:

a. set apart or separated from others of the 

same kind or group ‹a segregated account in 

a bank›;

b. divided in facilities or administered 

separately for members of different groups 

or races ‹segregated education›;

 

6 Although Maine’s is the only state code that uses the term 

“segregated ballot,” many state codes use the word “segregated” to refer 

to ballots more generally, and each uses it to mean separation. 

Specifically, most of the statutes use the word to describe the manner in 

which some ballots must be physically separated from others. See, e.g., 

Ala. Code § 17-10-2(a)(4) (provisional ballots cast pursuant to court order 

extending the time for closing the polls must be “segregated from other 

provisional ballots into a separate sealed container”); Idaho Code Ann. 

§ 34-308 (requiring mail ballots to be segregated by precinct); S.D. 

Codified Laws § 12-21-27 (providing that, if challenged, a “ballot shall be 

adequately identified by the board as an exhibit and segregated by the 

board as a disputed ballot”); Va. Code Ann. § 24.2-629 (requiring that a 

voting system “segregate ballots containing write-in votes from all 

others”). Those statutes that do not use the word “segregated” to refer to 

the physical separation of ballots use it to refer to the separation of items 

on a ballot. See, e.g., N.M. Stat. Ann. § 1-9-20 (requiring that a voting 

system generate ballots for primary elections that “segregate the 

choices . . . by party affiliation”).
160 [98 Op. Att’y

c. restricted to members of one group or one 

race by a policy of segregation ‹segregated

schools›

Webster’s Ninth New Collegiate Dictionary 1063 (1989). All three 

definitions connote separation rather than difference and, like the 

authorities discussed above, they suggest that the General Assembly 

likely envisioned something more than the mere difference between 

ballots in using the term “segregated ballot.” But they do not alone 

provide a clear answer. For that we turn to the legislative history, 

which indicates more clearly the Legislature’s intent.

B. The Legislative History

The bills that were enacted as Chapters 547 and 548 did not 

originally use the term “segregated ballot.” See H.B. 18, S.B. 392, 

First Reader (2007). As explained above, the legislation’s primary 

purpose was to provide an original paper record of a voter’s choices. 

The lead sponsor of the House bill, Delegate Sheila Hixson, stated 

publicly that a paper trail would “give people a trust in their vote, 

that it really counted.” New Bill Would Create Voting Paper Trail

by 2010, Associated Press (March 21, 2007), available at 

safevotingmd.org/news/2007/pdfs-docs/3-21-acap-ap-fox21wjz.pdf. 

In addition, the advocates of a voting system with a voter-verified 

paper record emphasized their preference for a software-independent 

paper ballot that could be hand-counted during mandatory routine 

audits and, if necessary, during a recount. See Hearing on H.B. 18 

Before the House Ways and Means Comm., 2007 Leg., Reg. Sess. 

(Feb. 1, 2007) (testimony of Stan Boyd, SAVE Our Votes); Hearing 

on S.B. 392 Before the Senate Educ., Health, and Envt’l Affairs 

Comm., 2007 Leg., Reg. Sess. (Feb. 22, 2007) (testimony of 

Progressive Maryland).

Although the bills were focused on providing a paper trail, they 

did include some provisions to protect the voting rights of people 

with disabilities:

(a) a voting system selected, certified, and 

implemented under this section shall:

(1) provide access to voters with 

disabilities that:

(i)is equivalent to the access afforded to 

voters without disabilities;
Gen. 98] 161

(ii) facilitates the casting of secret 

ballots by voters with disabilities; and

(iii) fully complies with the Americans 

with Disabilities Act, P.L. 101–336, and the 

Help America Vote Act, P.L. 107–252; and

(2) allow a voter to cast, inspect, verify, 

and correct the selections by both visual and 

nonvisual means.

(b) at least one voting system in each polling 

place shall provide access for voters with 

disabilities and afford them the opportunity for 

private and independent inspection, 

verification, and correction of their ballots.

S.B. 392, First Reader (proposed EL § 9-108). Despite the existence 

of these protections, advocates for the disabled opposed the bills 

during committee hearings, expressing concern that the proposed 

requirements would not allow for disabled voters to “vote privately 

and independently.” Hearing on S.B. 392 (written testimony of the 

Maryland Disability Law Center). For many disabled voters, the 

DRE units then in use provided for complete voter equality, such 

that a return to a voting system based on paper ballots represented a 

step backwards.

Although the disability community was unable to defeat the 

legislation, it was able to obtain an amendment to the disability 

protections in the bill to prohibit the use of a “segregated ballot.” 

Specifically, the amendment required that a certified voting system 

not only must provide “access to voters with disabilities that is 

equivalent to access afforded voters without disabilities,” but must 

do so “without creating a segregated ballot for voters with 

disabilities.” EL § 9-102(f)(1).

The testimony of the advocates for the disabled indicates that 

the ultimate goal of the amendment was to ensure that the paper 

ballot voting system would be implemented in a way that protected 

the privacy of the selections made by disabled voters. Some of that 

testimony, however, suggests that the advocates’ preferred means 

for achieving that goal was to require a single voting system for all 

voters. As the National Federation of the Blind of Maryland stated 

in its testimony on H.B. 18 before the House Ways and Means 

Committee:
162 [98 Op. Att’y

[T]his bill must be written not only to 

guarantee nonvisual access, but it must also 

guarantee that this nonvisual access must be an 

integral part of the system used by all voters. 

It is not acceptable to install a separate voting 

system for blind voters. Therefore, we 

recommend that . . . the definition of 

“equivalent access” should specifically 

prohibit ballot segregation, i.e., the ballots cast 

by voters using the accessibility features must 

not be segregated and counted separately from 

the ballots cast by the voters who do not use 

these features. If . . . ballot segregation is not 

expressly prohibited, blind voters will lose the 

assurance of casting secret ballots.

Hearing on H.B. 18 (written testimony of National Federation of the 

Blind of Maryland); see also Hearing on S.B. 392 (written testimony 

of The Freedom Center, Inc.) (“It is not acceptable to force people 

with disabilities to vote differently than everyone else . . . .”). 

Although requiring all voters to use the same voting system 

plainly would guarantee a non-segregated ballot, we see no evidence 

that the General Assembly intended through its use of the term 

“segregated ballot” to require that result. The Legislature could 

have expressly required the use of identical voting systems for all 

voters but did not do so. Instead, it required only that “[a]t least one 

voting system in each polling place on election day shall provide 

access for voters with disabilities in compliance with [§ 9-102(f)].” 

EL § 9-102(g)(1). Similarly, the Legislature could have prohibited 

the use of a segregated voting system. Instead it used the term 

“segregated ballot,” which, as reflected in the dictionary definitions, 

cases, and statutes discussed above, refers most naturally to ballots 

that are or can be handled separately from others. 

Based on the legislative history and the usage of the term in 

other authorities, we conclude that the prohibition on “segregated 

ballot[s]” was intended to enable disabled voters to vote privately 

and secretly, such that the votes they cast cannot be identified as 

having been cast by a disabled voter. A difference between ballots 

does not make them “segregated” per se, but if the ballot used by 

disabled voters—and, as discussed below, only disabled voters—has 

a different appearance from those ballots used by non-disabled 

voters, it would be identifiable as a ballot cast by a disabled voter. 

Even if the distinct ballots are scanned by the same optical scan unit 

and stored in the same ballot box with all other ballots, the ballots 
Gen. 98] 163

used by voters with disabilities would remain distinguishable and 

thus capable of being “segregated,” particularly in a recount. By the 

same token, even if all ballots were identical, those cast by disabled 

voters would still be distinguishable and, thus, “segregated,” if they 

were counted and stored separately. Thus, it is neither difference 

nor separation by itself that controls, but a combination of the two. 

We understand a “segregated ballot” to be a ballot that has been 

made distinguishable from other ballots, whether by its form or 

handling, and resulting in a loss of privacy for the voter.

C. SBE’s Options in Certifying Accessible Voting Systems that 

Do Not Produce a “Segregated Ballot”

We believe that SBE has several options for certifying voting 

systems consistent with the statute’s mandate that they provide 

“equivalent” access “without creating a segregated ballot.” EL § 9-

102(f)(1). First and perhaps most directly, SBE could certify any 

accessible voting system that meets the other requirements of the 

statute so long as all voters—disabled and non-disabled alike—cast 

their ballots through the use of that system. Under that approach, all 

ballots would be completed using a ballot-marking device and, thus, 

would be identical in appearance and impossible to be segregated.

We do not believe, however, that requiring all voters to use the 

same accessible voting system is the only way to avoid the creation 

of a segregated ballot. Indeed, it is our understanding that acquiring 

ballot-marking devices for all voters—including those who do not 

need them—would result in increased costs and inefficiency, factors 

that the statute specifically requires the State Board to consider in 

certifying an election system. See EL § 9-102(e)(3), (4). In light of 

SBE’s duty to consider those factors, we believe that the State Board 

could certify a voting system specifically for use by disabled voters 

so long as the election process as a whole is designed to prevent the 

creation of a segregated ballot. 

As we see it, there are at least two other ways in which SBE 

may certify an accessible voting system for use within an 

appropriately designed voting process. First, the State Board could 

certify a voting system dedicated to use by disabled voters so long as 

the system produces a ballot that (a) is identical in form to those cast 

by non-disabled voters, and (b) is cast, counted, and stored with 

other ballots. Although this approach would not necessarily address 

the concerns raised by all of the advocates for the disability 

community, it would achieve what appears to be principal goal of 

the “segregated ballot” amendment, namely, to make it impossible 
164 [98 Op. Att’y

to identify a ballot as having been cast by a disabled voter.7 

Second, SBE could certify an accessible voting system that 

produces a ballot that is different in appearance from handwritten 

ballots so long as non-disabled voters are required to use the system 

in numbers sufficient to make it impossible to draw the conclusion 

that a ballot produced by the system was, or was likely to have been, 

cast by a disabled voter. If the accessible system is used in this way, 

it does not matter that the ballot is a different size, has a barcode at 

the top, orshows only the voter’s selections and not the full contests. 

Provided that enough non-disabled voters use the same system, there 

would be no way to determine whether a specific ballot was cast by 

a disabled or non-disabled voter. Because the accessible system 

would be used by disabled and non-disabled voters alike, we believe 

that such a system would not result in the creation of a “segregated 

ballot” within the meaning of the statute.

We caution that, in order to proceed with this last option, it 

would not be sufficient simply to give non-disabled voters the option

of using the accessible voting system. If using the accessible voting 

system requires more time and is more complicated—as we 

understand may be the case for some systems—a non-disabled voter 

may be unlikely to choose that option. And, if election judges are 

less comfortable with the operation of the accessible voting system, 

they might be reluctant to direct additional, non-disabled voters to 

that system. Consequently, if SBE elects to proceed in this fashion, 

it must establish randomized polling-place procedures to ensure that 

a significant number of non-disabled voters will use the accessible 

voting system.

 

7 Although we understand that a ballot generated by a ballot-marking 

device might never be identical to those filled out by hand, the 

manufacturers of accessible voting systems appear to be making strides 

toward that goal. See Letter from Howard Cramer, Executive V.P. of 

Govt. Relations, Dominion Voting, to Adam D. Snyder, Chief Counsel, 

Opinions and Advice, Office of Attorney General (Aug. 29, 2013) (noting 

that Dominion has developed “a library of random individual types of oval 

marks that mimic the oval marks filled in by hand”). We believe it would 

be within SBE’s “broad discretion” over voting system certification, 

Schade, 401 Md. at 38-39, to determine whether a particular 

distinguishing feature makes the ballot produced by a ballot-marking 

system sufficiently distinguishable from other ballots that it would 

constitute a prohibited “segregated ballot” even when mixed with other 

ballots before counting. See 97 Opinions of the Attorney General at 39 

(observing that “the standards in [EL] § 9-102 allow SBE considerable 

discretion to decide what sort of evaluation is appropriate and what level 

of performance will be deemed acceptable”).
Gen. 98] 165

We are not in a position to say how many ballots cast by nondisabled voters would be sufficient to render the ballots cast by 

disabled voters indistinguishable as such; that decision is properly 

left to SBE. We believe that the “broad discretion” afforded SBE to 

select a voting system, Schade, 401 Md. at 38-39, encompasses the 

discretion to devise polling-place procedures that will ensure that the 

system it selects is operated in a manner consistent with the statute. 

See EL § 9-102(i)(2) (requiring SBE to promulgate regulations that 

“specify the procedures necessary to assure that the standards of this 

title are maintained”). As the Court observed in Schade, “[t]he State 

Board is, no doubt, in a better position to carry out the charge 

delegated to it than any other entity . . . .” 401 Md. at 39; see also 

id. at 38-39 (SBE’s decision regarding the selection and certification 

of voting systems is “a matter of policy or quasi-legislative in 

nature” and is subject to an arbitrary and capricious standard of 

review). It is our opinion that, so long as SBE develops and 

implements polling-place procedures that result in non-disabled 

voters using the accessible voting system in sufficient numbers to 

make the ballots cast by disabled voters unidentifiable as such, the 

State Board may certify and select any accessible voting system that 

meets the other requirements of the Election Law without creating a 

“segregated ballot.”8

 

8 We note that SBE regulations may already provide a model for 

determining how many non-disabled voters would have to use the 

accessible voting system in order to mask the votes cast by disabled 

voters. Those regulations provide that, to “preserve the secrecy of 

provisional ballots and absentee ballots,” the local election boards must 

withhold from the “initial” canvasses “[a]t least five absentee ballots of 

each ballot style to be canvassed” during the provisional ballot canvass or 

the second absentee ballot canvass. COMAR 33.11.04.04A. It is our 

understanding that the purpose of holding back five ballots during the 

initial canvass is to ensure that the one or two ballots that typically come 

in during the second canvass cannot readily be attributed to the voters who 

cast them. Because the regulation provides for five ballots to mask one or 

two later ballots, it suggests that a substantial majority of the ballots cast 

on an accessible voting system should be cast by non-disabled voters. 

Whether a similar approach is workable here is, again, something best left 

to SBE to decide.
166 [98 Op. Att’y

III

Conclusion

In summary, it is our opinion that the General Assembly, by 

prohibiting the use of a “segregated ballot,” intended to prevent the 

certification of a voting system that, for voters with disabilities, 

creates ballots that are physically set apart or can be easily 

distinguished from the ballots cast by other voters. We conclude 

that SBE has three options for certifying voting systems that would 

not result in creation of a segregated ballot. The State Board could 

require all voters to use accessible machines. Alternatively, SBE 

could certify an accessible voting system for the sole use of disabled 

voters so long as (a) that system produces ballots that are identical to 

the ballots produced by non-accessible machines, and (b) all ballots, 

from whatever machine, are cast, counted, and stored together. Or, 

SBE could certify any accessible system so long as it establishes 

polling-place procedures to ensure that enough non-disabled voters 

will use the accessible system that the ballots of disabled voters 

cannot be identified as such. Any one of these approaches would 

enable SBE to protect the privacy of disabled voters. Which 

approach to take, and how to implement that approach, is within 

SBE’s statutory discretion to determine.

Douglas F. Gansler

Attorney General

Sandra Benson Brantley

Assistant Attorney General

Adam D. Snyder

Chief Counsel, Opinions & Advice