By Glynis Kazanjian
A blind voter who had a “horrific” experience voting during the primary election has filed a new complaint against the state election board, adding to the list of grievances in a lawsuit initiated by the National Federation of the Blind in May.
One of the original plaintiffs, Janice Toothman, is seeking an unspecified amount of damages for what she says was a bungled voting experience that left her without the ability to vote privately or independently. Toothman, 52, is deaf and blind with a limited ability to hear.
Toothman said in her efforts to vote, she was unable to hear sound in the headset provided by a precinct in Bowie. Election officials offered to read ballot selections to Toothman, but Toothman rejected the offer saying it took away her right to vote in the same way as individuals without disabilities — a right guaranteed through the American for Disabilities Act.
Voting card not properly programmed
Election officials eventually determined Toothman’s voting card was not properly programmed as a “non-visual ballot,” an observation Toothman originally offered. Toothman’s voting card was updated which allowed for sound in the headset, but Toothman said she had difficulty hearing due to background noise in the voting station and the low volume of the head set.
“Ms. Toothman voted based on her occasional ability to hear and recognize candidates’ name,” said Jessica Weber, an attorney with Brown Goldstein and Levy, the law firm representing the plaintiffs. “This is not how Ms. Toothman wishes to vote; she wants to vote privately and independently and with the confidence that she is casting her vote correctly.”
Damages sought to encourage equal opportunity
Weber said one of the purposes of seeking compensatory damages was to prevent situations like this from happening again.
In the court filing, Toothman, and other disabled voters, are suing the State Board of Elections for denying individuals with disabilities an equal opportunity to cast absentee ballots through the use of an online ballot marking tool, a device that was available only to overseas and military voters. (This paragraph was revised 8/12/2014. See note at end of story.)
Online ballot marking to be discussed at Thursday meeting
The next state board meeting is set for 2 p.m. Thursday in Annapolis, and blind and disabled voters opposed to the online ballot marking tool are scheduled to address the board.
The state election board failed to certify the device last April so that all voters, including the disabled, could mark their ballots online. An informal voice vote showed the board lacked the four votes out of five needed to certify.
Board members dissented after considering a security assessment conducted on the online ballot marking tool, combined with testimony from some Internet security experts who say the electronic delivery system is still highly vulnerable to fraud.
“I think we should do this incrementally,” State Election Board Vice Chairman David McManus, a Republican, said at the April meeting. “I am not convinced the delivery system is safe. If the delivery works in the primary and the general, I could change my mind. The Internet is a very vast complicated system.”
Since the April meeting, the make-up of the board has changed. Democrat Rachel McGuckian, one of the dissenting votes, has since resigned and now serves on the State Ethics Commission. McGuckian was replaced by Janet Owens, the former county executive of Anne Arundel County.
Online ballot marking could be considered for general election
Some voting advocates believe there is a movement to certify the online tool for use in the general election, despite the security concerns of some board members and IT security experts. A supermajority of four votes would still be required.
One of the attorneys representing the National Federation of the Blind is a partner at the law firm Brown Goldstein and Levy, the same law firm that represented State Election Administrator Linda Lamone earlier this year in a lawsuit related to controversial campaign finance guidelines issued by Lamone for the 2014 primary election.
Weber said her firm looked into the potential conflict of interest in suing a former client and determined there was none.
EDITOR’S NOTE: In its original version, this article incorrectly stated the online ballot marking tool is currently available to military and overseas voters. It is not.
While military and overseas voters had access to the online ballot marking tool for the 2012 elections, a law was passed in 2013 that required certification of the ballot marking system which could also be used by all voters. Advice given to the state board by the Office of the Attorney General included an explanation of the need to certify the system for all voters including military and overseas. Therefore, military and overseas voters – and all voters – may not utilize the online ballot marking tool until it receives certification.