In case you missed it, I wanted to share with you this piece by The Seventh State’s Adam Pagnucco regarding the fiasco that unfolded earlier this week in our primary elections as well as the historical context of Linda Lamone’s leadership of the State Board of Elections.
Like you, I was deeply disappointed and remain very frustrated by the manner in which the June 2 elections were administered by the State Board of Elections, specifically in Baltimore City. The City of Baltimore, the State of Maryland, and our country are already facing far too many existential challenges without corroded public confidence in the integrity of our democratic process and in the legitimacy of the outcomes.
As you may know, during Wednesday’s Board of Public Works meeting, Lt. Governor Rutherford and I joined together in a bipartisan fashion to call for Administrator Lamone’s resignation. The failure to properly execute the June 2 election, along with the challenges that we are all aware of in previous elections, warrant Administrator Lamone’s resignation or removal from office.
However, as you know, thanks to a 2005 bill enacted by the General Assembly, widely referred to as the “Linda Lamone for Life” law, her termination by the State Board of Elections is made all the more challenging thanks to the passage of this legislation. The law now requires that the Administrator – even if terminated by the State Board of Elections – can remain in office until the Senate advises and consents to a replacement. No other employee of state government enjoys this level of statutory job protection.
The choice that the Senate makes on the future of Linda Lamone is one between efficient stewardship of our elections and gross administrative incompetence. It is a choice between voter empowerment and voter disenfranchisement. It is a choice between a system in which people can have confidence in the integrity of their institutions of government and one in that makes them question the legitimacy of our elections and outcomes. It is my sincere hope that the Senate will come to the same conclusion that I and the vast majority of Marylanders have made: it is time for new, competent leadership at the State Board of Elections.
Imagine a senior state employee appointed by the governor to a politically sensitive position. Now imagine the following hypothetical situation: the employee commits a heinous crime covered by every TV station in the state. Imagine this employee is then convicted and imprisoned. One would think that such an employee – any state employee, really – would be terminated from employment by the state in such a hypothetical circumstance.
You would be right – EXCEPT for one key position in state government: the State Administrator of Elections. Under current state law, that position would continue to be occupied by its current holder for a potentially indefinite period.
That law is commonly known as the “Linda Lamone for Life” law.
It must be repealed.
To understand how this law came to be, let’s go back in time. Linda Lamone, who is the State Administrator of Elections today, was appointed by Governor Parris Glendening to the position in 1997 but Republican Bob Ehrlich was elected governor in 2002. By 2005, Ehrlich had decided to get rid of her. But Lamone had an ace-in-the-hole – Mike Miller, who was then in his prime as Senate President and was determined to protect her. To thwart Ehrlich, Miller pushed through Senate Bill 444 to protect Lamone’s job. Ehrlich vetoed it but General Assembly Democrats overrode the veto, thereby winning one of Maryland’s uglier partisan battles of the last couple decades.
The State board may remove the State Administrator provided that the board is fully constituted with five duly confirmed members. Removal requires the affirmative vote of four duly confirmed members. The State Administrator is authorized to continue to serve subsequent to a valid vote of removal until a successor is confirmed by the Senate of Maryland.
And so it did not matter if Ehrlich’s appointees to the State Board of Elections (SBE) voted to remove Lamone. It did not matter if they got a super-majority for removal. Lamone would continue to serve regardless until the Senate voted for a successor. That meant Lamone was accountable to just one person – the person who scheduled Senate business. You guessed it – that person was Mike Miller.
The bill is so restrictive that the elections administrator could not be removed from office even if all five members of the State Board of Elections vote to fire her, even if she were convicted of first-degree murder, sentenced to death row and stripped of her voting rights. Only when the state Senate approves a replacement could she be removed. Now that’s job security.
Last year, Governor Larry Hogan and Comptroller Peter Franchot complained to Lamone about long lines in the previous general election. Franchot said, “This was a black eye for Maryland around the country.” Hogan added, “They were making fun of us on the national television about how bad the Maryland election was being administered… You are the Maryland state election administrator.” Lamone blamed the local election boards, responding, “I have no control.”
Our audit disclosed that improvements were needed to SBE’s existing processes and controls to ensure the integrity of the Statewide voter registration records. Specifically, SBE did not perform periodic documented reviews of the voter registration system to ensure that access capabilities were properly restricted. Furthermore, SBE’s oversight processes were not adequate to ensure that local boards of election appropriately corrected voter registration data based on the results of internal reviews of voter registration activity and the reports of possible ineligible voters that it received from external sources.
In addition, SBE systems, including the online voter registration website and the electronic pollbook system used for voter check-in, were at risk since controls were inadequate to ensure that only properly authorized program changes were placed into production for these systems.
Lamone concedes nothing to her critics. Why should she? They are powerless to hold her accountable. None of their jobs are protected by state law! Here is video of Lamone arguing with press over the doomed Diebold machines, eventually walking out of an interview.
Not all election problems are Lamone’s fault. The state and county boards of elections work together to hold elections in every cycle. Some mistakes are made by county boards. There are also occasional problems with vendors that even well-run boards have to confront.
But there is a national context to SBE’s recent problems that is inescapable. Because of the COVID-19 crisis, many states around the country – probably including Maryland – will be using mostly vote-by-mail elections in November. President Donald Trump and the Republican Party, fearing massive turnout from hostile voters, are doing everything possible to discredit vote-by-mail elections. The huge number of issues in Maryland’s primary with late ballots, ballots not received, ballots sent to departed voters and of course Baltimore’s Council District 1 race will be exploited by Republicans – and maybe even hostile foreign powers – to erode faith in the voting process. That’s why it’s absolutely crucial to hold top election officials accountable when things go wrong.
And in order to do that, the Linda Lamone for Life law must be repealed.
Yes, we do have a problem with the Baltimore City elections. A very big problem, in fact. Namely, voter disenfranchisement through gross administrative incompetence and widespread, citywide irregularities.
Inexcusable delays in the disbursement of ballots.
Inaccurate, misleading information on those same ballots.
Firsthand accounts, of which there are far too many to reference here, of Marylanders enduring unacceptable barriers to their constitutional right to vote.
Such as ballots that were never received in the mail.
Unacceptably long lines at the limited number of polling stations that were actually open. And people being told at the polls that they had already voted when, in fact, that wasn’t the case.
Bizarre and obviously mistaken vote totals being posted to the our state’s official board of elections website that caused undue public confusion.
And this morning, more than 12 hours after the polls were supposed to have closed in Baltimore City, the residents and business owners of this city in crisis had no timely updates on the outcome of the races for mayor, council president, city comptroller and various city council seats.
All we can be sure of today is that people who had the right to vote didn’t receive a ballot. People who didn’t have the right to vote DID. And that, regardless of whatever outcomes are eventually posted by our state and city elections boards, they will be subjected to widespread skepticism if not credible legal challenges.
Our city, state and country are already facing far too many existential challenges without corroded public confidence in the integrity of our democratic process and in the legitimacy of the outcomes. Yet that’s what is happening today, yet again, in our state.
It’s time for an end to the endless excuses. It’s time for a new culture of accountability and competence. It’s time for our longtime state elections administrator, Linda Lamone, and our city’s election director, Armstead Jones, to resign from their respective positions.
Simultaneously, Lieutenant Governor Boyd Rutherford called on State Board of Elections administrator Linda Lamone to resign. He said the following at this morning’s meeting of the Board of Public Works.
Yesterday was primary day in Maryland. There were reports of several challenges associated with it. There is some information that’s coming out today with regard to some challenges in Baltimore City. I have not had a chance to review it but with regard to the ballots in the first councilmanic district, that is just another example of the challenges that have been occurring with the State Board of Elections. And I did say earlier in a radio interview that I really think it’s time for the administrator at the Board of Elections to step down. I think it’s time for new leadership there and to be done early, before we – with enough time to correct all of these issues before we get to November’s general election. And so I call on the Senate to work with us to find new leadership and I encourage the administrator to step down.
Getting rid of Lamone is easier said than done and the Governor has no power to do it. As I wrote eleven years ago, when former Governor Bob Ehrlich tried to oust Lamone, the General Assembly changed state law to make it virtually impossible to fire her without the consent of the Senate. The Gazette wrote at the time, “The bill is so restrictive that the elections administrator could not be removed from office even if all five members of the State Board of Elections vote to fire her, even if she were convicted of first-degree murder, sentenced to death row and stripped of her voting rights. Only when the state Senate approves a replacement could she be removed. Now that’s job security.”
Only one thing is certain: the fallout from Baltimore’s botched Council District 1 election is just beginning. What will happen next?
Baltimore City Council Member Zeke Cohen was riding high. A first term incumbent in District 1 (Southeast Baltimore/Canton/Fells Point), Cohen was running for reelection and was endorsed by most of the major progressive institutional players in city politics.
Cohen’s challenger, Paris Bienert, was a credible candidate but her endorsement list was no match for the incumbent.
For the cycle, Cohen outraised Bienert by $322,837 vs $170,795 through May 17, a nearly 2-1 edge. Cohen also outspent Bienert by $194,015 vs $124,069. Cohen was so confident of victory that he reported a cash balance of $206,174 on May 17.
So this looks like a big win for the incumbent, yeah?
Last night, Cohen tweeted the following after seeing early results showing Bienert getting 98% of the vote.
Cohen called out the county board of elections and the results came down.
Another person caught this aberrant result. (I redacted the person’s identity from the tweet.)
Even Bienert didn’t believe it. She told the Baltimore Sun, “I’m very excited by these numbers, but I do think there’s been a misreporting.”
All of this will remind folks of the botched city election of four years ago, when activists alleged “irregularities, including late-opening polling stations; alleged conflicts of interest among campaign staffers who worked as election judges; polling-machine memory sticks that were missing for about 24 hours; and problems with resources, including shortages of ballots and ballpoint pens at some centers.” Future federal convict Catherine Pugh wound up winning the race for Mayor.
I am hearing that the State Board of Elections will address the matter today. For now, this tweet on Cohen’s thread says it all.
Last night, the State Board of Elections’ county status page showed Baltimore City as sending in partial vote-by-mail results. Below is what that page looks like now. The city is the only jurisdiction shown as not sending any results despite the early returns posted last night.
Ballots arrived at an irregular pace this year. Then, when they came, the ballots had the original primary date of April 28th printed on them. What happened?
Snafus with SeaChange, the vendor used to print and to mail the ballots, explain many of the problems. According to Deputy State Administrator Nikki Charleson at the Maryland State Board of Elections, “the vendor did not meet the schedule for Montgomery or Baltimore City” and ballots were “mailed out later than planned.”
Ballots for Baltimore City, the locale with a number of hot local contests, were supposed to have been mailed on May 8 but SeaChange did not start posting them until significantly later. In a press release, the State Board blamed SeaChange explicitly not only for missing the deadline but misleading Maryland election officials:
On May 7, SeaChange informed SBE that ballots for Baltimore City were printed and would be mailed on May 8 and confirmed on May 11 that some Baltimore City ballots had been mailed. SBE relied on this incorrect information when communicating with the public, advocacy organizations and candidates. While some files were late, it was the misleading information provided by SeaChange that led to the unmet expectations and the confusion over the ballot delivery process.
Will there be a lawsuit? Refund? Unquestionably, this should be investigated by the General Assembly. Mistakes happen, especially during a crisis but the state shouldn’t be misled by its vendors. Lying isn’t a symptom of coronavirus.
Similarly, ballots for Montgomery did not get sent until after the scheduled date. In many households, a ballot arrived for one adult but not for another. The mailing of ballots for a single local jurisdiction on different dates probably explains this strange pattern.
When I communicated with the Montgomery County Board of Elections, I also learned that there was a problem with absentee ballots. Although, everyone was effectively an absentee voter due to the adoption of universal vote-by-mail, voters who requested absentee ballots were on a separate electronic list and were not mailed ballots simultaneously with other voters.
Charlson explained that the vendor, SeaChange, had served as a subcontractor for printing ballots in 2018 as well as the special primary and general election in the Seventh Congressional District this year. She said that the state did not experience any problems that warranted not engaging SeaChange again at that time.
Why Did the Ballots Say April 28th?
The original primary was scheduled for April 28th. Given the timing of the Governor’s executive order mandating both the change of election date and vote by mail, the ballots were already finalized with many already printed. As a result, the State Board did not deem it feasible to reprint ballots with the new date, though notices were included to highlight that they remained valid notwithstanding the later date.
Who Should Receive Ballots?
Although it’s a primary, you should still receive a ballot if there is a school board race in your jurisdiction even if you’re not registered with a party. All school boards in Maryland are nonpartisan, so voters who are not affiliated with a party can participate in the primaries for these contests.
All active registered voters should receive ballots. Active is defined quite broadly and may include people who haven’t voted for a number of elections. People who have moved or died may still be considered “active voters” unless the Board discovered that they were no longer eligible because their mail was returned or through a number of other checks undertaken by the Board. In short, the state errs heavily on the side of keeping someone on the rolls and it is unlikely that you have been wrongly purged from the voter rolls.
If you didn’t receive a ballot, you should contact your local Board of Elections and consider voting at one of the open polling places on Election Day, June 2nd, as time is short for another ballot to get mailed and arrive. Remember that all ballots postmarked by June 2nd will be counted as long as they arrive before 10am on June 12.
It’s tempting to dispense with precinct election results when a jurisdiction switches to vote by mail (VBM). But Maryland shouldn’t do it.
Voting Rights Act Compliance
The most important reason by far is to assure that redistricting plans around the state comply with the federal Voting Rights Act (VRA). Some mistakenly think that the VRA is longer in force since the Supreme Court’s decision in Shelby v Holder (2013) suspended federal preclearance of new voting and election laws previously required under Section 5 of the VRA for covered jurisdictions.
Section 2 nevertheless remains in force and continues to prohibit discriminatory redistricting practices. In any case, Maryland has never been a covered jurisdiction that had to submit its election practices to federal scrutiny under Section 5.
Precinct election results are critical evidence for both bringing and defending redistricting cases under Section 2 of the VRA. Matching race and ethicity data with precincts election results allows the application of statistical methods to estimate turnout rates and candidate support levels by race and ethnicity. These estimates are critical for both bringing and defending challenges under Section 2.
There is really no substitute for this approach. Polling data is unavailable for all but statewide contests and even then it cannot be broken down reliably to legislative or county council district levels. Consequently, precinct election data remains vital to make it possible for courts to adjudicate Section 2 cases properly.
In order to win a redistricting challenge under Section 2, plaintiffs must satisfy a three-prong test outlined by the U.S. Supreme Court in Thornburg v Gingles (1986). The minority must be: (1) sufficiently large and geographically compact to constitute a majority in a single-member district; (2) politically cohesive; and (3) racial-bloc voting usually defeats the minority’s preferred candidate.
The last two prongs rely on having estimates of voting behavior by race. In the absence of precinct election results, these will be impossible to generate. While results from earlier years will remain available, results from the most recent elections are considered the most valuable since they are closest to the current situation.
State defense attorneys might welcome making it more difficult to bring voting rights challenges. But it hardly seems the right approach for a state committed to racial equality and compliance with federal law. Choosing not to produce precinct election results for this reason could even become evidence of racially discriminatory intent.
Fortunately, VBM is not a barrier to producing precinct election results. It is little different than distributing early vote back to precincts. Undoubtedly, it takes more effort but longstanding VBM states do it. Maryland can look to these models for guidance as they continue to prepare for a different Fall election than expected.
Beyond the Voting Rights Act issues, precinct election results remain extremely valuable for fraud detection. Political scientists and statisticians have developed methods to sniff out outcomes that are highly unlikely absent fraud. They are equally useful for undercutting irresponsible and baseless fraud claims from the Left or the Right.
The failure of the Motor Vehicle Administration (MVA) to transfer data on some voters who changed their registration information to the State Board of Elections (SBE) has attracted lots of attention from the press and members of the General Assembly. Here is a key question: did it actually change the outcomes of any elections? New data allows us to examine this issue.
Recently, SBE sent the General Assembly the number of voters affected by the MVA registration change issue by party, precinct, state legislative district and Congressional district. We show the total number of voters affected by state legislative district below. (Note: The data does not include all potentially impacted voters because SBE cannot map all addresses on file with MVA to addresses in the voter registration list.)
Now what happened to these voters? These are folks who tried to change their voter registration address or party affiliation at MVA and, unfortunately, the changes were not passed on to SBE. One of five events would have happened to these voters.
Possibility 2: They could have voted through a provisional ballot which was subsequently accepted.
Possibility 3: They could have voted through a provisional ballot which was subsequently rejected.
Possibility 4: They could have been told at the polling place that they must cast a provisional ballot and then left without voting.
Possibility 5: They may not have tried to vote at all.
Right now, we don’t know the distribution in each one of the above five event categories. We do know that the number of affected voters who voted provisionally was 3,538 but we don’t know how many of those ballots were rejected. Possibility 4 – leaving the polling location without voting – is the most unknowable of all and also the most disturbing. It’s also a very real possibility as illustrated by Maryland Matters’ report of this exchange at a General Assembly hearing between SBE Administrator Linda Lamone and two state legislators.
Del. Eric G. Luedtke (D-Montgomery) seemed concerned that while the estimated overall turnout statewide was about 25 percent, among the affected voters – roughly 8,700 affected voters who used either provisional or regular ballots – the turnout was less than 10 percent.
“Is it reasonable to say that this may have had a deterrent effect on voters, or are you concerned that it could have had a deterrent effect on voters?” Luedtke asked.
“Yes,” Lamone replied.
“That’s a key issue for us,” Luedtke said.
Sen. Paul G. Pinsky (D-Prince George’s), vice chairman of the Education, Health and Environmental Affairs Committee, asked Lamone if she knew of any studies that showed the use of a provisional ballot was “dissuasive.”
“I have seen some discussion of that, senator,” she said. “I haven’t seen the numbers, but I have seen some discussion that people believe that it’s less than a vote – it’s not a real ballot.”
Under further questioning by Pinsky, Lamone agreed that voters could have been put off by the prospect of using a provisional ballot.
“There could be some number of voters out there who didn’t vote because of this error?” Pinsky asked.
“That’s correct,” Lamone replied.
Did any primary election results change because of this mistake? We will never be able to answer that question, but we can identify some elections that were close enough so that an impact was possible. Below are eight races across the state in which the number of voters affected by the MVA issue was at least five times the winning margin held by the victor.
Going forward, there are two areas of concern. First, there must not be a recurrence of this issue in the general election. And second, now that the state has passed automatic voter registration, a law that mandates the passing of voter information between numerous state agencies and SBE, the potential for the kinds of problems seen at MVA is now greatly magnified. Imagine the chaos that would result from MANY thousands of voters showing up to the polls thinking they had registered but then finding out that SBE did not have their information. It would make the MVA issue look tiny and would have the potential to affect a whole lot more elections.
In an email to numerous Boards of Elections officials and others, Paul Aumayr, the Director of the State Board of Elections Voting Systems Division, has stated that the board will not be reprinting ballots to accommodate Valerie Ervin’s decision to run for Governor. We reprint the email below.