Segregated Ballots for Voters with Disabilities? An Analysis of Policies and Use of the ExpressVote Ballot Marking Device

Abstract

When the Help America Vote Act (HAVA) was enacted in 2002, it meant that, for the first time, people with disabilities were given the right to vote privately and independently. Post-HAVA, most states switched to direct recording electronic (DRE) voting machines, which allowed for people with disabilities to use the same machines, with alternate input/output modalities (e.g., blind voters could use the audio option and a set of headphones to ensure privacy). However, in the light of potential hacking threats (or even just the fear of hacking threats), many states are now moving back to hand-marked paper ballots such as optical scan ballots. Voters with print-related disabilities, unable to use an optical scan ballot by hand, are now forced to use a separate system, called a ballot marking device (BMD), to mark up paper ballots. Some BMDs, such as the ExpressVote^®, produce a ballot that is different in size and content from the hand-marked ballot used in the jurisdiction. If only a small number of people with disabilities are using this BMD in each polling place, this allows for the possibility of determining which votes were cast by people with disabilities, and if only one ballot was cast using the BMD in a precinct, it might eliminate the secrecy of the ballot for that voter. This article presents a case study of Maryland, describing how ballot secrecy may have been violated in the 2016 and 2018 elections. The article also presents empirical data from the 19 other states (and Washington DC) where the ExpressVote BMD is used, on their policies related to the use of the BMD.