Schade v. Board of Elections

• Decision Date: 24 August 2007
• Docket Number: No. 64, September Term, 2004.,64, September Term, 2004.
• Parties: Linda SCHADE, et al. v. MARYLAND STATE BOARD OF ELECTIONS, et al.
• Court: Court of Special Appeals of Maryland

930 A.2d 304

401 Md. 1

Linda SCHADE, et al. v. MARYLAND STATE BOARD OF ELECTIONS, et al.

No. 64, September Term, 2004.

Court of Appeals of Maryland.

August 24, 2007.

Ryan P. Phair (Laura A. Thomas, Kathryn R. DeBord and John P. Gonsoulin of Kirkland & Ellis L.L.P. of Washington, D.C.; John B. Isbister, Daniel S. Katz and Richard D. Rosenthal of Tydings & Rosenberg L.L.P. of Baltimore, MD), all on brief, for appellants.

Stephen Vaughan, Esq., Schmeltzer, Aptaker & Shepard, P.C., Washington, D.C.; Cindy Cohn, Esq., San Francisco, CA, for Consent Motion for leave to file a brief for amicus curiae by the Electronic Frontier Foundation, Common Cause, People for

the American Way Foundation, Center for Constitutional Rights, America's Families United, Verified Voting Foundation and Votersunite! in Support of Plaintiffs' Appeal of Denial of Motion for Preliminary Injunction, for Appellants.

Michael D. Berman, Deputy Chief Civil Litigation (J. Joseph Curran, Jr., Attorney General of Maryland, and Judith A. Armold, Assistant Attorney General, Daniel F. Goldstein (Shelly Marie Martin of Brown, Goldstein & Levy L.L.P., Baltimore, MD)), on brief for Appellees.

Argued before BELL, C.J., and RAKER, WILNER^*, CATHELL^*, HARRELL, BATTAGLIA and GREENE, JJ.

BELL, C.J.

The instant matter finds its genesis in a challenge brought by several registered Maryland voters and candidates for public office, collectively, "the appellants," to the decision of the Maryland State Board of Elections ("the State Board"), one of the appellees,¹ to purchase and certify, pursuant to Maryland Code (2003) §§ 9-101² and 9-102³ of the Election Law Article ("EL"), the Diebold AccuVote-TS ("Diebold") direct recording electronic ("DRE") voting system for use in the November 2, 2004 elections. Specifically, the appellants, plaintiffs below, citing vulnerabilities in the system's security and accuracy, sought injunctive relief in the form of the decertification⁴ of the DRE voting machines, or, in the alternative, the addition of a voter-verified paper audit trail of all ballots cast, which would permit an independent audit of the machines. The question presented on this appeal is whether the Circuit Court for Anne Arundel County erred in finding that the State Board acted reasonably in purchasing and certifying the Diebold voting system, thus denying the appellants' request for a preliminary injunction. In addressing this issue we consider whether the Circuit Court applied the correct standard in assessing the security and accuracy of Maryland's voting system and whether it properly exercised sound discretion in examining the factors necessary to support a preliminary injunction.

I.

Electronic voting machines have been used in Maryland since 1996, when Baltimore City became the first jurisdiction to procure and deploy a DRE voting system.⁵ Precipitated in part by the 1994 Gubernatorial Election, in which, in a very close election for governor, there had been problems with vote counting accuracy and conducting recounts, Maryland began looking for ways to improve its voting process. As part of the State's election reform, a series of commissions were appointed to study the elections process in Maryland. As a result of that examination, it was suggested that elections in Maryland needed to be modernized and that uniformity should be the benchmark for any such efforts. In addition, a revision to the then antiquated election code was recommended.

In response, the General Assembly mandated the "maximiz[ation of] the use of technology in election administration, including the development of a plan for a comprehensive computerized elections management system[,]" EL § 2-102(b)(7),⁶ and, on December 4, 2000, Governor Glendening, pursuant to Executive Order 01.01.2000.25, formed a Special Committee on Voting Systems and Election Procedures in Maryland ("the Special Committee"). The Special Committee issued a report in February 2001, recommending that Maryland adopt, in an attempt to eliminate a myriad of administrative problems which existed as a result of the differing systems that were being used at the time by the various counties around the State, a uniform statewide voting system for both the polling places and for absentee voting. It preferred, citing their reliability, accuracy and security, a DRE voting system for all polling places and an optical scan voting system for absentee ballots.

The Special Committee indicated that there were several advantages to a DRE system, including, inter alia, the machines are programmed to prevent overvotes, reduced cost, no questionable marks resulting in the need to guess at voter intent during a recount, no need for the printing of paper ballots, the blind and visually impaired voters would be able to cast their votes without assistance, and ballots can be programmed in multiple languages. The Special Committee also noted the potential difficulties with the implementation of a DRE system: compared to optical scan systems, such a system may cost more for some local jurisdictions because of the sophisticated technology and the need for multiple units per precinct, rigorous, comprehensive testing would have to be performed in order to insure the accuracy and security of the system's software, and additional personnel would have to be hired or available to the State and Local Boards of Elections. Some specific recommendations of the Special Committee included that the system:

"Provide the voter the highest degree of secrecy as practicable when casting his or her vote[;]"

"Be capable of creating a paper record of all votes in order that an audit trial [sic][be] available in the event of a recount[;]"

"Allow, during the pre-election testing of voting systems, a random number of ballots or votes to be tested to ensure accurate tabulation[;]" and

"Be available for leasing rather than purchasing in order to take advantage of anticipated technological advances. . . ."

The Maryland General Assembly adopted some of the Special Committee's most significant recommendations at its 2001 session, enacting Chapter 564, Laws of Maryland 2001, which added portions of the language now embodied in EL, Title 9, Subtitle 1.⁷ That enactment required that the uniform statewide voting system be fully implemented by July 1, 2006.⁸ Adhering to the directives of the General Assembly, the State Board issued a Request for Proposals to purchase DRE voting machines for use in all Maryland polling places. The State Board also hired an evaluation agent with expertise in voting systems and created an ad hoc committee, the Election System Evaluation Committee ("ESEV"), to assist in examining the proposals and ultimately with the selection of a vendor. At the conclusion of its investigations, after meeting with various vendors and evaluating the DRE voting machines, the ESEV declined to endorse any of the vendors and recommended that the State invoke its right to reject all proposals and not move forward with the purchase of electronic voting machines altogether.

Ultimately, the State Board purchased the Diebold system for use in Maryland polling places. The voting system was to be implemented in three phases: Phase I included deployment of the DRE machines in four counties — Allegany, Dorchester, Montgomery, and Prince George's — for the 2002 elections; Phase II included implementation in 17 (eventually 19) counties for the 2004 elections;⁹ and Baltimore City was to receive the system in 2006 as part of Phase III. The Diebold machines were used successfully in the four "Phase I" counties during the 2002 elections,¹⁰ thus confirming for the State Board that it should continue with Phase II of the system's implementation. Therefore, the State Board purchased Diebold machines for the remainder of the counties, other than Baltimore City, for the 2004 March Primary Election. This decision by the State Board was not without a great deal of controversy.

The first criticism of the State Board's actions was contained in a report, entitled "Analysis of an Electronic Voting System" ("the Hopkins Report"), published by Dr. Aviel Rubin, a professor at Johns Hopkins University, and his colleagues. Claiming to have reviewed the source code used in the Diebold machines, the Hopkins Report questioned the security of the newly acquired machines, identifying several theoretical¹¹ problems in the source code that could permit someone to alter the election results. The report also emphasized the need for a voter-verified audit trail in order to secure the integrity of the entire election process.

In response to the Hopkins Report, attempting to assess whether the theories proposed by Dr. Rubin were valid, Governor Ehrlich ordered an independent risk assessment of the Diebold machines. Accordingly, the Department of Budget and Management engaged Science Applications International Corporation ("SAIC"), an independent consultant, to examine the Diebold machines as implemented, at the conclusion of which SAIC released a report. While on the one hand criticizing Dr. Rubin, claiming that he did not have a complete understanding of the system, including the procedural controls and general voting environment, SAIC's report also identified a series of vulnerabilities in Maryland's voting system and elections process as a whole, noting several areas in which improvements could be made. The report went on to make recommendations for the mitigation of these vulnerabilities. Taking into consideration SAIC's report, the State Board crafted a "Voting System Security Action Plan," specifying the steps it would take to improve the security of elections in Maryland.

Subsequently, the Department of Legislative Services, in an attempt to conduct its own analysis of the security issues raised by the Hopkins and SAIC reports concerning the Diebold system, hired RABA Technologies, LLC ("RABA"), an Information Technology security consulting firm. The RABA group was led by Dr....