When members of the Maryland Board of Elections convened, they knew they would be asked to make a near-impossible decision.
Offer in-person centers to ensure every possible voter could participate in the June 2 primary, but risk the exposure of election staff and volunteers to a mysterious and deadly viral pandemic?
Or hold an election exclusively with ballots sent by mail, a system that would exclude some of the most disadvantaged voters — people with disabilities, those without housing and people temporarily displaced by the spreading outbreak?
Having listened to stern advice on both sides of the issue, board members came down on the side of public health, opting for a draft plan that does not include in-person polling.
But such a decision would leave Maryland vulnerable to legal challenge, according to the heads of several voting rights groups and the Maryland attorney general’s office.
“I just want to make clear that it is excluding that subset of the population from being able to independently and privately vote,” Andrea Trento, a lawyer from the attorney general’s office who serves as counsel to the state Board of Elections, warned the board Wednesday.
“These are extreme circumstances, and I understand if the board wishes to weigh that sacrifice for the greater good in reaching a policy here," Trento said. "But I want to make it clear that would be the effect.”
Maryland officials are grappling with unprecedented election decisions as the outbreak of the new coronavirus grows exponentially across the state.
Under the current state of emergency declared by Republican Gov. Larry Hogan, he postponed the state’s April 28 presidential primary to June 2. He tasked the state elections board with coming up with a plan by Friday, subject to his approval, to conduct voting.
Distributing ballots by mail, as the board is poised to recommend, sounds easy enough. The board’s draft plan calls for ballots to be mailed to Maryland’s more than 4 million eligible voters. Those ballots could be returned by mail — envelopes with postage would be included — or dropped off at boxes at locations yet to be determined.
At their meeting, board members initially were divided on the question of whether to make in-person voting centers an option for a limited number of people. Every state that conducts mail-in elections routinely offers such centers. They satisfy requirements under the Americans with Disabilities Act and the Help America Vote Act to allow voters who cannot vote by traditional means to vote independently and privately, Trento explained.
Maryland typically offers special machines at in-person voting places called ballot marking devices equipped with earphones and print screens that can produce a marked paper ballot for voters unable to fill one out on their own.
Voting centers also serve people who have trouble receiving mail, he said. The state maintains a list of inactive voters based on mail to their addresses being returned as undeliverable. Ballots sent to those addresses likely would not be received, yet during any election 1% to 4% of those voters participate at the polls, Trento said. Without a physical location to vote, those voters would be excluded, he said.
Furthermore, the ranks of voters unreachable at the addresses for them in the state’s database are likely to grow as the coronavirus outbreak pushes more and more people out of their usual living arrangements.
Board members were receptive to Trento’s argument, and the group contemplated opening a few voting centers on a limited, even an appointment-only, basis.
But Webster Ye, the director of the office of governmental affairs for the Maryland Department of Health, told the board any in-person voting scenario presented a “very high possibility” that staff and volunteers would be infected. That swayed the board, which also decided against offering any in-person voting centers for the April 28 special general election for the 7th Congressional District.
“The more people we have doing this, the more casualties were going to take,” Board Chairman Mike Cogan said of the volunteers and staff who typically work on Election Day. “It’s not the military. We can’t order them to take risks with their health and their lives.”
“We’re giving them the right to vote by sending them the ballots," added board member Malcolm Funn. “If they don’t have the means, that burden shouldn’t be on us at the determent of the health of poll workers.”
Voting rights advocates were sympathetic to the board’s quandary. But disenfranchising even one voter, let alone the thousands likely to be affected by the plan, is unacceptable, said Joanne Antoine, executive director for Common Cause Maryland.
“The idea we want to tell those with disabilities to find a friend to help them — that just shouldn’t be the way that we’re going, even in a crisis,” she said.
Ronza Othman, president of the National Federation of the Blind for Maryland, said Maryland’s thousands of blind citizens would be affected inordinately.
Maryland has a system for people with disabilities to fill out absentee ballots online, she said. But voters still must print a ballot, sign it, address the envelope and mail it. People who are blind and have other disabilities including dexterity issues may be disproportionately affected, she said.
Further, many voters lack access to printers, Othman noted. She said most public locations where they are available are now closed.
“If you’re somebody who lives alone, especially during COVID-19, you can’t find somebody to help, and by law you shouldn’t be required to,” Othman said. “This sets up a system where you are required to.”
Othman said she has heard from numerous members of the blind community who are considering not voting in the primary out of concern for their privacy.
Amy Cruice, legal program manager for the American Civil Liberties Union of Maryland, said her group applauds the state for strongly encouraging voting by mail, but she foresees an absence of in-person voting centers as a “huge concern."
Maryland’s most marginalized populations already are being hit hardest by the virus outbreak, Cruice said, and the state cannot also shut those people out of voting.
The list of people who would use voting centers is long, she said, including people with language barriers, those who didn’t receive a ballot, people displaced by the outbreak and those who cannot easily register to vote before June due to not having a state ID card. The Motor Vehicle Administration has been shuttered since March 20, making it difficult to get an identification card, Cruice noted.
“These people have the right to vote, and many of them cannot vote by mail,” she said.
The board will meet Thursday to finalize the plan before sending it to the governor.
Cruice said she understood the group’s reaction to the health crisis, but she urged the members to reconsider their position.
“We have lots of essential services for a reason," she said. “It’s times like these where we’re going to be challenged, but we have to show everyone that this is an essential part of our democracy.”