SHEILA ELLIS H1xsoN Ofiice fie 20"] D,-my-H The Maryland House of Delegates I .3. x. 6 Bladen Street, Room 131 COUHI-V) I 301-838-3469 . 410-841-3469 Cl 1 Fax 301-833-3777 - 410-841-3777 mu 800-492-7122 Ext. 3469 and M63115 Committfifi Q) Oflice 1008 Broadmore Circle be Lflfazry/and aura of Tlelegcztes Sum mg, Mam, 20904 ANNAPOLIS, MARYLAND 21401 June 6, 2013 Ms. Linda H. Lamone Administrator Maryland State Board of Elections 151 West Street, Suite 200 Annapolis, Maryland 21401 Dear Ms. Lamone: We write in regard to the studies of the State's election processes mandated by Chapters 157 and 158 of 2013. We are making some specific requests to ensure that these studies address issues of concern to us and are as useful as possible to the General Assembly's policymaking in future legislative sessions. Each of the required studies is addressed below. Sunday Early Voting While Chapters 157 and 158 expanded the number of early voting days from six to eight, further extending the early voting period to the Sunday before Election Day is worth considering as a way to further boost tumout. Maryland's early voting period remains one of the most limited in the nation. In 2012, the average length of the early voting period among states was 19 days. The Brennan Center for Justice recommends allowing early voting on the weekend before Election Day, because early voting turnout increases as public excitement and media coverage of the election build as Election Day approaches. The elimination of early voting on the weekend before Election Day is widely believed to have contributed to exceptionally long lines at polling places in Florida in 2012, one of only two states with longer lines than Maryland that year. In other states, early voting is especially popular with minority Voters, who also tend to vote disproportionately on the weekend before Election Day. The primary obstacle to extending early voting to the Sunday before Election Day is the potential impact on administrative processes. We are confident that any administrative requirements can be satisfied because many states currently offer early voting through the Sunday before Election Day. Election officials have said that the main administrative challenge is the need to update the electronic pollbooks with the names of voters who voted during the early voting period to prevent anyone who voted early from voting again on Election Day. However, we are not convinced that updating the electronic pollbooks is necessary. Many states that offer early voting on the weekend before Election Day do not do this. These states either provide paper lists of persons who voted early to the check-in judges on Election Day or do not provide an updated list at all. Ms. Linda H. Lamone June 6, 2013 Page 2 We request that the option of not providing an updated list to the check--in judges be considered as part of the study of this issue. A person who voted during early voting and on Election Day in their own name would be certain to be detected and subject to prosecution for voter fraud, and would only gain a single vote. As a result, such incidents must be exceedingly rare. We request that the State Board of Elections (SBE) contact at least two states that do not provide updated lists as part of the study and determine whether double voting has been a significant problem in those states. If double voting is not a problem in practice, there is no need to update the pollbooks and there should be no major administrative impediment to implementing early voting on the weekend before the election. Long Lines at Polling Places Waiting times at Maryland polling places were the third longest in the country in 2012, at an average of 32 minutes. Waiting times at some polling places were much longer. Nationally, the average waiting time was 13 minutes, and only 13% of voters waited more than 30 minutes. Urban and minority voters were more likely to face long lines nationally, and there is reason to believe the same pattern occurred in Maryland. Studies have shown that long lines depress turnout as some voters leave the polling place without casting a ballot because they cannot afford to wait due to work or family obligations. A study of the long lines in Florida in 2012 found that they suppressed Election Day turnout by We do not believe that the long lines in Maryland were due solely to special circumstances such as the length of the ballot or high voter turnout. In 2012, there were seven statewide questions on the ballot. In 2008, there were only two statewide questions, so if the length of the ballot were the determining factor, one would expect the lines to have been much shorter that year. And yet Maryland's average wait time in 2008 was still 24.5 minutes, which was the sixth longest in the country that year. In addition, other states, such as California, that have long ballots, have much shorter wait times than Maryland. The average wait time in California in 2012 was six minutes. Voter tumout also does not appear to be the primary factor creating long lines at the polls. In 2008, voter turnout was 77.6%. In 2012, voter tumout fell to 74%. And yet the length of the average wait at the polls actually increased from 24.5 minutes in 2008 to 32 minutes in 2012. Further, other states, such as Minnesota, that have higher voter turnout than Maryland also have much shorter lines. The conclusion we draw from these facts is that the chronically long lines that are likely preventing thousands of Marylanders from exercising their right to vote are caused by an insufficient number of voting units and administrative policies and practices that are under the control of election officials. As you know, in 2012, 20 of 24 counties failed to deploy at least one voting unit for every 200 registered voters, as required by regulation. Even if factors such as equipment shortages, ballot length, or voter turnout have an effect on lines, these are contingencies that can be foreseen and should be adequately planned for, as other states evidently do. Ms. Linda H. Lamone June 6, 2013 Page 3 Chapters 157 and 158 require SBE to "propose target maximum wait times" for voters at polling places and early voting centers. We see no reason why Maryland should not aspire to at least equal the national average wait time in the last election of 13 minutes at polling places and 20 minutes at early voting centers. We request that the plan for reducing wait times required by Chapters 157 and 158 provide a detailed analysis of requirements for meeting this standard. We further request that the following specific options for reducing wait times be considered: 0 Open early voting centers at 7:00 a.m. As you know, polling places on Election Day currently open at 7:00 a.m. According to the Census Bureau's American Community Survey, the average Maryland resident commutes 32 minutes and leaves for work between 7:00 and 7:30 a.m. Almost half work outside the county (or state) where they live. Therefore, early voting hours that begin at 8:00 a.m. deny early morning participation to most voters who commute long distances to work outside their counties of residence (or outside of Maryland, especially in the Washington, DC suburbs). Please examine the feasibility of opening the early voting centers at 7:00 a.m. on each weekday that early voting is offered. 0 Provide emergency paper ballots to voters at polling places where wait times exceed the maximum target wait time. As noted above, a lack of voting units was likely a factor in the long wait times experienced by many Maryland voters last year. Giving voters the option of marking a paper ballot instead of waiting for a limited number of DRE machines to be available would shorten lines. Other jurisdictions that use DRES do this. An objection might be made that voters might not have privacy while marking their emergency paper ballots. But voters who choose to use the online ballot marking tool already have the option of waiving their right to a secret ballot for the sake of convenience. There is no reason voters in the polling place should not be given the same choice if an excessively long line might otherwise prevent them from voting at all. 0 Determine the optimal number of voting units needed to serve the electorate. Other jurisdictions should be able to provide useful data on this question. This information should be used to determine the number of voting booths needed when the State transitions to an optical scan voting system. (Although, as noted above, voters should be given the option of not using a voting booth when marking their ballots if lines get too long.) 0 Measure wait times at polling places and make that information publicly available on the Internet. The State should systematically measure wait times at polling places to assess whether stated goals are being met, identify trouble spots, and gauge the effectiveness of the specific strategies employed to reduce wait times. Ms. Linda H. Lamone June 6, 2013 Page 4 Due in significant part to the efforts of SBE and the local boards of elections, Maryland leads the nation in a variety of initiatives to make voting more accessible. We must not continue to lag behind other states in providing all our voters with the opportunity to cast a ballot in a timely manner. For too many of our citizens, too long a delay in exercising the franchise has amounted to denial of the franchise. That must not be allowed to continue. Accessibility Evaluation of Online Ballot Marking Tool As you know, an important reason for the adoption of online ballot marking technology was its potential to make the absentee voting process more accessible to voters with disabilities. As part of the accessibility and usability evaluation of the online ballot marking tool that SBE is required to conduct under Chapters 157 and 158, we request that SBE engage qualified usability experts as well as voters with a wide range of disabilities to determine whether the online ballot marking tool (1) provides "access to voters with disabilities that is equivalent to access afforded voters without disabilities without creating a segregated ballot for voters with disabilities" and (2) will "ensure the independent, private casting, inspection, verification, and correction of secret ballots by voters with disabilities." As you know, this language is found in 9-102 of the Election Law Article, which sets forth requirements for voting systems. We believe it is important for the online ballot marking tool to be shown to satisfy the same accessibility standards that the State's polling place voting system is required to meet so that voters with disabilities may have equal access whether they choose to vote absentee or in person. We request that the accessibility and usability evaluation specifically address whether the online ballot marking tool ensures the "independent, private casting" of "secret ballots" by voters with disabilities. Voters' own computers may be infected with spyware that could detect and disclose their selections. Voters with certain types of disabilities may not be able to place the printed ballot in an envelope for mailing without assistance from another person. This compromises both the privacy of the ballot and the voter's ability to independently cast the ballot. And the secrecy of the ballot is further compromised because ballots marked online are returned in a single envelope containing both the oath and the voted ballot, revealing the choices of individual voters to election officials during the canvass. Independent Consultant Report on Security of Voting Technology While amendments to Chapters 157 and 158 made several changes to the operation of online voter services to address serious security problems, we remain concerned about other potential threats that the legislation did not specifically address. That is why Chapters 157 and 158 require SBE to engage an independent consultant to make further recommendations for improving the security of online voter services. We request that the consultant make recommendations in response to the following questions: Ms. Linda H. Lamone June 6, Page 5 2013 How can online voter services be protected firom a denial of service attack and how could SBE recover fiom such an attack one occurred? Most concerns to date about the security of online voter services have centered on the possibility of these systems being manipulated to commit fraud. Less attention has been paid to the possibility of the systems being shut down at a critical time by a denial of service attack. If the online absentee ballot request and delivery system were shut down in the last week before an election, for example, potentially thousands of voters could effectively be denied the opportunity to vote. It may be too late to send ballots by mail, and voters who request absentee ballots in many cases do so because they carmot make it to the polls. A similar risk does not exist with absentee ballots delivered by postal mail, which is less susceptible to widespread shut downs. What could SBE do in this situation to prevent mass disenfranchisement? How could fraudulent activity in online voter services be detected and what should be done if fraud is detected? Distinguishing between legitimate and fraudulent activity in online voter services may be difficult. How could SBE know with certainty that certain transactions are fraudulent without contacting each individual affected voter to verify whether they made a suspect transaction? SBE would not want to nullify a transaction without knowing for certain that it is fraudulent because doing so could seriously inconvenience or disenfranchise a legitimate voter. Moreover, many cyberattacks are not detected until after considerable damage has been done. If many suspect transactions occurred shortly before the voter registration deadline or shortly before an election, how could SBE sort through potentially thousands of transactions in a timely manner to determine which are legitimate while at the same time completing all its other pressing election preparation tasks? What additional measures can be taken to prevent fraud from occurring in online voter services? The existence of criminal penalties for voter fraud is not sufficient to ensure the security of online voter services. Many election procedures, not least the entire system of voter registration, exist to proactively prevent fraud from occurring by making it more difficult. We do not protect the integrity of our elections by simply relying on the deterrent effect of criminal laws against fraud that a person could be prosecuted for violating. If simply making an act illegal were adequate, we would not have a whole array of programs and policies designed to protect public safety and security. The need for preventive measures is especially acute with online voter services because the Internet allows a malevolent actor to attack anonymously on a large scale with relative ease from anywhere in the world. Perpetrators may be difficult to identify and prosecute. As you know, few resources are devoted to investigating and prosecuting election-related crimes. A great deal of damage could be done before an attack is detected and halted. An attacker could weigh the high probability of substantially interfering with an election against the low probability of punishment and conclude that it is well worth the risk. Therefore strong defenses against attack are essential. Ms. Linda H. Lamone June 6, 2013 Page 6 Specific recommendations for addressing many of the concerns discussed above were made by three cybersecurity experts in a letter of September 25, 2012, to the members of SBE. We request that the consultant's report address each recommendation contained in that letter and its attachment and provide an assessment of why it should or should not be implemented. One of the most effective methods for assessing the sufficiency of cybersecurity measures is penetration testing by a red team. We request that you give serious consideration to directing the consultant to perform such testing. We appreciate your attention to these matters and look forward to continuing to work with you to improve the accessibility and security of Maryland elections. Sincerely, owns. Imp ow: arm. Sheila E. I-Iixson Jon S. Cardin Chair, Ways and Means Committee Chair, Election Law Subcommittee cc: Ms. Bobbie S. Mack, Chairman, State Board of Elections Mr. David J. McManus, Jr., Vice Chairman, State Board of Elections Ms. Rachel T. McGuckian, State Board of Elections Mr. Patrick H. Murray, State Board of Elections Mr. Charles E. Thomann, State Board of Elections Ms. Rebecca Mules, Deputy Legislative Officer, Governor's Office