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Parties prep for legal battles at the polls

Teams of lawyers to scrutinize November voting process after problem primary

Friday, Sept. 22, 2006

Click here to enlarge this photo Christopher Anderson⁄The Gazette Prince George’s Board of Elections members (from left) Doris Jacobs, Francis DiSalvo, Janette Valle Sheehan and Carl Ruble inspect a printout of the results from a voting machine. See story on Page A-6.

‘‘We have lawyers in every jurisdiction that are in place because we believe every voter needs to have access to election ballots,” said Derek Walker, executive director of the Maryland Democratic Party.

Republicans are also lining up a team of attorneys ready to file suit if the state’s controversial touch-screen voting machines malfunction.

‘‘We’re seeing how [with] what occurred on primary day, where there is even more of a need for professional legal counsel to be aware of every and any instance where a voter is disenfranchised or a voter is not able to cast their ballot or if a voter is unsure whether a ballot is cast,” said state GOP spokeswoman Audra Miller.

Some candidates in tightly contested primaries are already weighing legal challenges because of the problems that plagued the primary. Donna F. Edwards trails U.S. Rep. Albert R. Wynn (D-Dist. 4) of Mitchellville in the Democratic primary by about 3,000 votes, with some ballots in Montgomery and Prince George’s counties not yet counted. Edwards has questioned whether other votes were properly computed and threatened to sue.

Jamie Raskin, a lawyer from Takoma Park who unseated Sen. Ida G. Ruben (D-Dist. 20) of Silver Spring last week, has deep concerns about the safety of the electronic voting machines. He said he dispatched a team of lawyers, dubbed an ‘‘Election Protection Squad,” to work the polls on primary day because of his apprehension.

The lack of confidence in the voting system ensures that both parties will have lawyers on standby for the general election, Raskin said.

He remains hopeful, however, that last week’s problems will serve as a lesson learned. ‘‘The election officials are now on notice that the whole country is watching.”

The precedent for legal challenges in Maryland was set in the 1994 gubernatorial race when Parris N. Glendening (D) defeated Republican Ellen R. Sauerbrey by less than 6,000 votes out of the 1.4 million votes cast.

That was ‘‘a field day for attorneys,” said Joseph M. Getty, policy director for Gov. Robert L. Ehrlich Jr. (R), and a former two-term delegate from Carroll County. Many of the issues Sauerbrey raised — voting irregularities, disenfranchisement and potential fraud — mirror this year’s hot topics, he said. ‘‘That certainly signals greater vigilance on both sides for the general election.”

Since 1994, other contests have been decided in court — most notably the 2000 presidential race — where the legal techniques for challenging elections have been refined. ‘‘Instead of waiting until after the election, both sides will have lawyers prior to the election and on Election Day gathering evidence” in case a lawsuit is necessary, Getty said.

‘‘At all levels, candidates are more aware and need to be prepared for legal challenges,” he added, pointing to the Democratic primary in Senate District 23, where Prince George’s County Councilman Douglas J.J. Peters (D-Dist. 4) of Bowie leads Bobby G. Henry Jr., by less than 600 votes. Henry, an attorney whose firm is in Largo, has threatened a lawsuit, citing complaints that some of the votes in Bowie were missing and that his name was omitted from the ballot at one polling site.

Yet Senate President Thomas V. Mike Miller Jr. (D-Dist. 27) of Chesapeake Beach said he doubts that the general election will be decided in court, even though the gubernatorial and U.S. races are being closely watched nationally.

But House Speaker Michael E. Busch (D-Dist. 30) of Annapolis said the ‘‘tension and anxiety” that surrounds this year’s elections has contributed to the legal preparations.

The state Democratic Party said it has fielded hundreds of calls since last week’s primary through a ‘‘voter empowerment hot line” to pinpoint where breakdowns in the system occurred and document any trends that will help ensure a smoother general election.

Walker blamed Ehrlich for holding up the contract for new electronic check-in systems that delayed training of election judges. The machines, called e-poll books, crashed at numerous precincts throughout the day. Those malfunctions took center stage at Wednesday’s Board of Public Works meeting, where Ehrlich called for ditching the high-tech process and reverting to a manual check-in. He also hinted at using paper ballots that can be read by optical scanners.

‘‘We have to err on the side of reliability,” he told reporters after the meeting where state Elections Administrator Linda H. Lamone was asked about last week’s debacle. He said calling lawmakers into a special legislative session to resolve the crisis is an option. ‘‘As embarrassing as that would be in the short term, what would be more embarrassing is a replay of the primary,” Ehrlich said.

Both Miller and Busch agreed that there should be a ‘‘paper backup” to preserve the integrity of the voting process and to reassure Marylanders that their votes will be counted, but rejected the idea of a special session. The days of publicity that followed the primary will prompt elections officials at the state and local levels to make sure the same problems do not recur in November, Miller said. ‘‘People are going to make certain that these slip-ups don’t happen again.”

Lamone, who was appointed by Glendening and has clashed repeatedly with Ehrlich, called last week’s failures ‘‘intolerable” and pledged to hold Diebold Election Systems, the electronic voting system’s Ohio-based manufacturer, accountable for technical errors.

Lamone bristled at the governor’s suggestion to use paper ballots. ‘‘Changes stress the system and we don’t want to stress it any more than it is,” she said.

Instead, she laid out a seven-point plan to fix things, including recruiting more election judges, offering refresher training courses to all poll workers, requiring Diebold to retest all machines publicly and mandating that all poll sites be equipped with land or cellular communication. The state board has also hired an independent firm to determine how a repeat of the primary can be avoided.

Johns Hopkins University computer scientist Avi Rubin, a critic of electronic voting systems who wrote a 2003 report detailing serious security flaws in the Diebold machines, said Lamone’s plan does not go far enough.

‘‘I think that if we don’t get rid of the e-poll books we could have worse problems [in the general election] than we had” in the primary, said Rubin, who was an elections judge in Baltimore County last week and reported several hiccups with the check-in system.

Republican lawmakers accused Lamone of trying to deflect criticism instead of taking responsibility for last week’s failures.

‘‘I think she may be trying to avoid the buck,” said Sen. Allan H. Kittleman (R-Dist. 9) of West Friendship. ‘‘But I think when you are in charge of the election system, you need to take the credit and the blame at the same time.”

Staff Writers Thomas Dennison and Judson Berger contributed to this report.