The state attorney general's office is appealing a federal judge's ruling ordering Maryland to use an absentee ballot-marking technology for the disabled that the Board of Elections had refused to certify as secure.
The state will ask the 4th U.S. Circuit Court of Appeals in Richmond, Va., to throw out District Judge Richard D. Bennett's decision this month. Bennett found that the election board's refusal to implement the program violated the federal Americans with Disabilities Act.
The attorney general's office filed a notice of intent to appeal Monday but did not spell out its objections to the ruling. Alan Brody, a spokesman for the office, said the state is not requesting a stay of Bennett's ruling. The decision not to seek a stay means this year's election will go forward with the system in place, according to Brody.
Nikki Baines Charlson, deputy administrator of the elections board, said the system has been installed and is being used now by disabled absentee voters.
"We will continue to use it until the court tells us otherwise," Charlson said. She referred further questions to the attorney general's office.
The program is intended to allow the blind or those with trouble walking who download absentee ballots from a website to fill them out without assistance from another person. The marked ballots then must be delivered to the local elections board by mail.
The staff of the state elections board recommended this spring that board members certify the marking tool as safe and effective, but a diverse coalition of ballot-security advocates raised concerns that the system would open the door to widespread hacking.
Michael Greenberger, a University of Maryland law professor who founded its Center for Health and Homeland Security, told the board the tool would make Maryland's voting system the most vulnerable to fraud in the country.
In April, the five-member board could not muster the four-vote super-majority needed to approve the tool.
The decision prompted the National Federation of the Blind, which had worked with the staff to develop and test the tool, to sue the state in May. Bennett ordered the board to implement the program for the Nov. 4 general election In his ruling, Bennett acknowledged that there were risks in using the tool but ruled that the potential benefits to disabled voters outweighed those concerns.
Susan Greenhalgh, election specialist for the ballot security advocacy group Verified Voting Foundation, welcomed the decision to appeal.
Greenhalgh said Maryland's ballot-marking tool was vulnerable to an attack that would allow a hacker to change a blind voter's choices and that the voter would be unable to detect the change.
"The judge ignored that. He just missed those facts," she said.
Greenhalgh expressed dismay that the state isn't seeking a stay.
"I don't think that this tool is safe and private, and it's not ready to be deployed," she said.
Chris Danielson, a spokesman for the federation for the blind, said the group is prepared for the next step.
"To the extent the state appeals it, we will vigorously defend the ruling on appeal," he said.