Joel J. Todd
State’s Attorney
Office of the State’s
Attorney for Worcester County
One West Market Street
Suite 208 Court
House
Snow Hill, Maryland 21863
Michael W. Farlow Paul Haskell
Deputy State’s Attorney Deputy State’s Attorney
Circuit Court Division
District Court Division
May 29, 2009
POCOMOKE CITY ELECTION
COMPLAINT INVESTIGATIVE FINDINGS
Background Information
On April
7, 2009, a Town Council election was held in the Town of Pocomoke City, Maryland
for the District 4 Council seat. On that same date, Mrs. Stephanie Burke, one of
the candidates for the contested council seat, complained to the Office of the
State’s Attorney that absentee ballots may have been illegally handled and undue
influence had been practiced over many of the absentee voters. She asked that a
criminal investigation be conducted to determine whether any violations of the
Pocomoke City election laws had occurred, and if so, that said violations be
charged and prosecuted.
More specifically, Mrs. Burke’s complaint was as
follows:
1. That her opponent, either directly or through others,
a.) had solicited for absentee ballots;
b.) had completed portions
of the applications for absentee ballots;
c.) had handled completed absentee
ballots; and
d.) had marked portions of the absentee ballots;
2.
That most of the absentee votes cast were by voters who could have voted
in-person, and therefore should not have been permitted to vote absentee;
3. That the Pocomoke City Board of Supervisors of Elections had failed
in performing their duties by:
a.) not maintaining a current list of
registered voters;
b.) allowing citizens who did not live in the proper
district to vote;
c.) allowing non-registered citizens to vote;
d.) not
accurately maintaining a list of absentee voters to prevent an absentee voter
from physically voting as well; and
e.) “tipping off” persons when absentee
ballots were going to be mailed.
Despite what has been reported in some
local media and alleged in a subsequent complaint of voter irregularity in the
Town of Snow Hill, Maryland, Mr. Edward Lee was not, and is not, the “subject”
of this investigation. In fact, now that the investigation is complete it can be
reported that there is no evidence that Mr. Lee has committed any criminal act,
nor is there any evidence that he has acted inappropriately. While this office
would not normally go to such lengths to point out the absence of evidence as to
a particular person, because of the inaccurate information reported, the
undersigned feels that it is only fair to set the record straight as to this
individual. Additionally, it should be noted that the Mayor, Town Manager and
employees of the Town of Pocomoke City have been, as far as this office can
tell, completely cooperative with this investigation and provided all
information requested.
The purpose of this investigation was to
determine whether any criminal violations were committed by anyone in regard to
the April 14, 2009 municipal election in Pocomoke City, Maryland. This office
has attempted to be completely objective—to gather facts and then make legal
conclusions as opposed to entering the investigation with any preconceived
conclusions.
When the ballots cast election day were counted, the result
was 58 votes for Stephanie Burke and 58 votes for the incumbent Tracey Cottman.
The 184 absentee ballots were then counted. Two of those contained no votes at
all. Of the remaining ballots, 178 were cast in favor of the incumbent Mrs.
Cottman and four in favor of Mrs. Burke.
During the course of this
investigation, this office has issued subpoenas or obtained court orders for the
following information:
1. Copy of the voter registration list and the
certification envelopes that accompanied the absentee ballots;
2.
Application for Absentee Ballot forms
3. Map of Voting District 4
4. Absentee Ballots
5. Original Voter Registration List used the
day of the election together with the envelopes in which they were mailed to the
Board of Supervisors of Elections for Pocomoke City.
Interviewed during
this investigation were the following:
1. Stephanie and William Burke
2. City Clerk Carol Justice
3. Tracey and Bruce Cottman
4. 50 absentee voters from the April 14, 2009 election (the names of
which will be kept confidential)
5. Retired City Clerk Janet Hood
Discussion
The philosophy for the founding of the United States
is best detailed in the Declaration of Independence, signed July 4, 1776 and
drafted by Thomas Jefferson.
We hold these truths to be self-evident,
that all men are created equal, that they are endowed by their Creator with
certain unalienable Rights,…. — That to secure these rights, Governments are
instituted among Men, deriving their just powers from the consent of the
governed, — That whenever any Form of Government becomes destructive of these
ends, it is the Right of the People to alter or to abolish it, and to institute
new Government, laying its foundation on such principles and organizing its
powers in such form, as to them shall seem most likely to effect their Safety
and Happiness.
Based upon that philosophy, it is difficult to imagine a
right more important to a citizen of these United States than the right to vote.
Additionally, I believe that it is no accident that the first article in the
Maryland Constitution deals with the elective process. It is through the ballot
box that the citizens now exercise their right to “alter or abolish” their
government and to “institute new Government.” It is for this reason, therefore,
that this office has taken the complaint of Mrs. Burke so seriously. Whether the
election be federal, state, county or municipal, the right to vote is
fundamental to our democratic process and cannot be taken lightly.
During the course of this investigation we have discovered some
irregularities in the elective process in Pocomoke City. I will attempt to
identify those irregularities, but it must be remembered that it is only in the
criminal process that this office has any influence. The Pocomoke City Charter
provides for a criminal penalty to violations of its election laws in §C-43. It
is that section which gives this office jurisdiction to review the complaint at
issue.
Most of the irregularities relate directly to the complaint of
Mrs. Burke. The most obvious irregularity is one which confronted us as we
examined her complaint.
Complaint 2: People were voting absentee
when they were physically available to vote at the polls
It is my desire
to deal with the second part of Mrs. Burke’s complaint first, because it will
shed light on legal issues in general, and the applicability of State law for
the remaining issues as well. This issue is the complaint that most of the
absentee votes cast were by voters who could have voted in-person, and therefore
should not have been permitted to vote absentee. The application for an absentee
ballot by a registered voter of Pocomoke City contains the following language,
which must be signed by the voter in order to get an absentee ballot: “I do
swear or affirm that I am legally qualified to vote in the election to be held,
that I am legally registered to vote in the City of Pocomoke City, Maryland as
stated in this application and that I will be unable to vote in person on
election day. … (emphasis added). The Oath of Absentee Voter, contained on the
ballot envelope, which must be signed before the vote can be counted, states,
similarly “I do hereby swear (or affirm) that I am legally qualified to vote in
the Municipal Election to be held ; … that I will be unable to vote in person on
the day of such election and am entitled to vote by absentee ballot under
Article 33 of the Maryland Code…” (emphasis added)
There are two issues
with this language. First of all, Article 33 of the Annotated Code of Maryland
ceased to exist on January 1, 2003 when it was replaced by the Election Law
Article. It is unclear why the Town of Pocomoke City continues to refer to this,
or any other language from the State Election Law since §1-101(v)(3) of that
Article states that “‘election’ does not include … a municipal election…” On
February 17, 2006, under the State Election Law, absentee ballots became
permissible in all state elections, unless preempted by federal law. Since much
of Maryland’s Election Law does not apply to municipal elections, that change
had no affect on Pocomoke City. The last Pocomoke City Ordinance which affected
election law was Ordinance No. 385, enacted January 2006, and it did not relate
to absentee balloting.
It is even more unclear why that language has
appeared on the ballot application or on the absentee ballot envelope since
March 1, 1999. Paragraph 3.b of Resolution No. 312, approved that date, states
that “Anyone may request an Application for Absentee Ballot…” (emphasis added)
There is no prohibition anywhere in Paragraph 3 that states that in order to be
eligible to vote absentee a voter must be “unable to vote in person.”
Accordingly, there is no merit to this complaint, but it would appear that to
avoid confusion in the future, the language on these forms should be altered.
Complaint 1: Mishandling of Absentee Ballot Applications and Ballots
I. Ballot Applications
Ms. Burke described in great detail her
complaint as to the absentee application and ballot process. Quoting from the
Case Investigation Report of Special Investigator Shawn Sarver, the application
process was described as follows:
They [the Burkes] advised that the
mere number of absentee ballots indicated that there was clearly an issue with
fraud in this election. … Stephanie [Burke] advised that this was accomplished
by a candidate or representative thereof, going door to door with absentee
ballot applications. An application is given to a voter and the candidate either
assists the voter in completing the ballot or completes the majority of it for
them. Then the candidate takes the application and advises the voter that they
will mail the application for them. The candidate then creates a list of the
voters who completed the applications. The candidate mails all of the
applications on the same date to City Hall.
The issue under this
complaint is a) whether a candidate or her representative has the right to
receive absentee ballot applications; b) to pass them out to prospective voters;
c) to assist them in filling out those applications; d) to collect the ballots;
e) to compile a list of those voters who filled out applications; f) and then to
mail the applications for the voters.
Pocomoke Resolution No. 312 is
entitled “A RESOLUTION OF THE MAYOR AND COUNCIL OF POCOMOKE CITY, MARYLAND TO
REPEAL RESOLUTION NO. 173 AND TO REENACT CERTAIN PROVISIONS OF THAT RESOLUTION
TO CLARIFY AND ESTABLISH PROCEDURES INVOLVED WITH THE MUNICPAL ELECTIONS OF
POCOMOKE CITY, MARYLAND”
Paragraph 3 of that resolution deals with
absentee voting. Subparagraph b states as follows:
Anyone may request an
Application for Absentee Ballot by telephone, facsimile, or in person at City
Hall during normal business hours. All Applications for Absentee Ballot will be
numbered. Photocopies will not be accepted. When an application is issued, a
record will be kept at City Hall of the application number and to whom it was
issued. If requested, applications will be issued by facsimile. (emphasis added)
The word “anyone” is defined by the American College Dictionary as “any
person; anybody.” The resolution does not use the words ‘any voter’ but
‘anyone’. Under the plain meaning approach of statutory interpretation, that
seems to indicate that any person may request an application for an absentee
ballot. That interpretation is complicated, however, by the fact that the
resolution goes on to state “an” application. Both ‘an’ and ‘application’ are in
the singular and not the plural. The paragraph goes on to speak in the singular
and not plural. It is not until the last sentence of the paragraph that
“applications” is used in the plural sense.
Our investigation has
revealed that records were kept by the City Clerk as required by this paragraph.
Numbers were assigned to the applications before being issued to the candidate
seeking those applications and as required, they recorded to whom the
applications were issued. It is clear that the City Clerk perceived no problem
with the request of the candidates for absentee application ballots and it is
unclear how the candidates could or should have known anything to the contrary.
This paragraph of the resolution is overly vague, and hence unenforceable from a
criminal standpoint.
There is nothing in Paragraph 3 of Resolution No.
312 that expressly prohibits anyone from performing any of the remaining actions
complained of insofar as the ballot applications are concerned. Reading the
remaining paragraphs of Resolution No. 312 it is clear that the Town Council was
aware of how to prohibit these actions because they did so expressly when
providing for the actual absentee ballots, as opposed to the applications for
the same. The fact that these matters were expressly prohibited by the Town
Council when dealing with the ballots and did not do so when dealing with the
ballot applications is indicative that they did not intend to do so. Therefore,
I can see no evidence of criminal wrongdoing insofar as the handling of the
applications for absentee ballots is concerned.
II Absentee Ballots
The Case Investigation Report of Special Investigator Sarver goes on to
detail Mrs. Burke’s complaint regarding the absentee ballots themselves:
The candidate is then ‘tipped off’ when the actual ballots are about to
be mailed from City Hall to the voter. The candidate then follows the list they
made of voters who completed applications for absentee ballots and goes from
address to address asking the voter if they received their absentee ballot in
the mail. When the voter produces the ballot and certification envelope, the
candidate assists the voter in completing the certification envelope and waits
until the voter completes the ballot. The candidate then tells the voter that
he/she will mail the ballot for them and takes the absentee ballot and
certification envelope from the voter. The candidate then mails all of the
absentee ballots on the same date. The Burkes advised that the fraud comes in
when the candidate shows up with more than one person to intimidate older or
more shy voters, the candidate completes the certification or actually marks the
ballot for the voter, the candidate has access to the ballot and could
substitute a real ballot with one the candidate has marked …
Mrs.
Burke’s allegation that the candidate who collected and turned in the
applications was “tipped off” by someone in City Hall has actually been
confirmed by Tracey Cottman who stated to S/I Sarver that City Clerk Carol
Justice would tell them what day she was going to process the applications and
send out the ballots. Mrs. Cottman would then go the homes of the people from
whom she had collected applications when the mail containing their ballots was
delivered. Ms. Justice has confirmed that she “tipped off” Mrs. Cottman. While
she did not give Mrs. Cottman specific names of voters to whom she had mailed
ballots, she did tell Mrs. Cottman that ballots had been issued to the voters
from whom Mrs. Cottman had collected applications.
This violates at
least the spirit of Paragraph 3.d of Resolution No. 312 which states, in the
second to last sentence, “The list of absentee ballots issued shall not be made
available to the public.” This Resolution was issued in accordance with §C-42 of
the Pocomoke City Charter: “The Council shall have the power to provide by
ordinance or resolution…for the prevention of fraud in connection [with
elections]…” (emphasis added). The Pocomoke City Charter at §C-43 makes this
conduct a misdemeanor.
Did Ms. Justice, however, actually violate the
specific terms of this paragraph as opposed to its intent? Clearly the Town
Council intended to prevent fraud in the voting practices of Pocomoke City in
adopting Resolution No. 312 Paragraph 3.d. Their own employee, however, has
allegedly made the above detailed admission. While this alleged conduct may have
been inappropriate, unprofessional, and perhaps even unethical, it is not clear
that her alleged action constitutes making “available to the public” the list of
absentee ballots. There is no evidence from either Mrs. Cottman or Ms. Justice
that any names were given to Mrs. Cottman by Ms. Justice. Again, while this
alleged behavior violates the spirit of the resolution, we are dealing with
statutory interpretation from a criminal law perspective. It appears that this
matter could more appropriately be handled as a personnel issue by the town
government rather than the criminal justice system. As far as Mrs. Cottman is
concerned, the paragraph prohibits the dissemination of this material, and not
the receipt of it. She, therefore, has violated neither the spirit nor the
letter of that part of the paragraph.
The paragraph goes on, however to
state as follows: “Candidates will not be allowed to inspect completed absentee
ballots.” The investigation by S/I Sarver has revealed, and in fact Mr. and Mrs.
Cottman have admitted to him, that they “had sealed a number of [absentee
ballots] as some of the voters requested they seal the envelopes for them.” Case
Investigation Report, Supplement 2, S/I Shawn Sarver. They went on to indicate
that “some voters would just sign the signature line on the certification and
check the ballot before handing all of the documents back to them to be sealed
and mailed.” Id. While they both adamantly denied marking even a single ballot,
they admitted to Sarver that they had filled out the address portion on the
“Oath of Absentee Voter” contained within the sealed ballot. They indicated that
they felt that was acceptable, but admitted that marking the actual ballot would
have been unethical.
Early in this document, it is stated that 50 voters
were interviewed by this office. Those 50 voters were selected because of
apparent differences in handwriting on the oaths attached to the absentee
ballots. It appeared to the investigator that parts of the ballot may have been
filled out by one person, and parts of it filled out by a second. Of those 50
voters, 26 were asked whether their ballots were sealed or unsealed when given
to the Cottmans. Eleven of them stated that they were unsealed. Additionally, of
those 26, 12 of them indicated that they only signed the Oath of Absentee Voter,
and the address was filled in by the Cottmans. [This, of course, means that the
oath those voters signed was inaccurate, in that it stated that they, the voter,
marked the ballot secretly, then enclosed it and sealed it in the Ballot
Envelope.]
Some of these voters indicated that they felt intimidated by
having a candidate with them when they filled in their ballot. One of the blank
ballots was, according to that voter, left blank because they did not want to
have to fill in the ballot with the candidate present.
The issue here,
however, is whether the last sentence of Resolution 312 Paragraph 3.d, which if
violated constitutes a misdemeanor criminal offense, applies to a candidate,
i.e. Tracy Cottman. The answer to that question is ‘no’. Resolution No. 312
applies to the Pocomoke City government, the Board of Supervisors of Elections,
the City Clerk, and any other town employee involved in the election process.
Clearly Tracey Cottman, as a member of the Town Council, is part of the town
government, but she was not working in her capacity as a member of the Town
Council when she was on the campaign trail. She was working in her capacity as a
candidate—a private citizen. Therefore absent any evidence that she was working
in her official capacity, the resolution does not apply to Mrs. Cottman.
As to the Burkes’ contention that “the fraud comes in when the candidate
shows up with more than one person to intimidate older or more shy voters, the
candidate completes the certification or actually marks the ballot for the
voter, the candidate has access to the ballot and could substitute a real ballot
with one the candidate has marked,” while it appears to be true that some of the
voters expressed that they felt uncomfortable and/or intimidated by having Mrs.
Cottman present when they voted, there is no evidence that they asked Mrs.
Cottman to leave, or that it was the intent of Mrs. Cottman to intimidate them.
Additionally, there is no provision in the Pocomoke City election law which
prohibits this conduct by a candidate. Finally, as to this point, there is no
evidence that any ballots were substituted. To the contrary, because all of the
absentee ballots were numbered by the city, and there is no evidence that those
numbers were provided to the Cottmans, it would have been difficult to make a
substitution. The Pocomoke City Board of Elections has attempted, by way of its
Oath of Absentee Voter, to make sure that all voters have voted without the
intimidating influence of another. If a voter chooses to sign that oath when it
is not true, it is unclear how the Board of Supervisors of Elections can be
expected to police the process.
Complaint 3: Pocomoke City Board of
Supervisors of Elections failed in performing their duties
A. “Tipping
Off” candidates
This issue was discussed in Complaint 1, above and will
not be discussed any further.
B. Not maintaining a current list of
registered voters
Pocomoke City Charter §C-32 provides that voters are
to register to vote with the Board of Supervisors of Elections in Pocomoke City.
§C-33 provides for an appeal process to the Council if a person feels aggrieved
by decision not to permit him or her to vote. Resolution No. 312 paragraph 1
provides additional details on voter eligibility, proof of residency and the
like. All of this has been supplanted by Subtitle 4 of the Election Law Article,
Annotated Code of Maryland. By state law, municipal voter registration lists are
now compiled by the County election office. That list may then be supplemented
by the Town, (§3-403 (g)).
This matter was specifically discussed with
City Clerk Carol Justice.
I then asked Justice who was in charge of
maintaining the registry by removing the names of dead and relocated voters.
Justice advised that she would remove the names of those voters who she knew had
moved or died and the election board would do the same. Justice stated that she
and the election board workers were familiar with most of the residents and
would adjust the list if they learned of a death or move. Justice stated that
she would contact the Worcester County Board of Elections with the names of any
voters they were not sure of and the Worcester County Board of Elections would
check their registry to provide an address. Case Investigation Report,
Supplement 1, S/I Sarver
This statement attributed to Ms. Justice
mirrors the dictates of §C-32 of the Pocomoke City Charter. Additionally, as a
part of this investigation, S/I Sarver unsuccessfully attempted to find evidence
that people no longer alive had voted or that people who had moved out of the
town limits of Pocomoke City had voted. He checked with the Office of the
Register of Wills for Worcester County to see if estates had been opened for any
of the people who had voted in the recent election. Additionally, he checked, to
no avail, the obituary lists to see if he could find the names of any of those
who had voted in Pocomoke City. There is no evidence that there is any merit to
this allegation.
C. Permitting citizens to vote who had no right to
vote
For the purposes of this discussion, I am combining subparagraphs
b, c, and d from complaint 3 on the first page of these investigative findings.
1. Allowing Citizens from a different voting district to vote in this
district
Election Law Article § 3-403 provides that district lines for
municipal elections are to be agreed upon by the County Election office and the
town. Once agreed upon, those district lines are the appropriate lines. A
grievance policy exists to challenge these lines if a voter feels aggrieved or
disenfranchised.
This investigation has not uncovered any information
which would indicate that citizens who lived in a different voting district were
permitted to vote for this district council seat. Accordingly, there is no
evidence that there is any merit to this allegation.
2. Allowing
Non-Registered Citizens to Vote
There is no evidence that any
non-registered citizens were permitted to vote. Accordingly, there is no merit
to this allegation.
3. Not Accurately Maintaining a List of Absentee
Voters to Prevent an Absentee Voter from Physically Voting as Well
Pocomoke City was provided with a “Precinct Register” by the Worcester
County Election Office. This register contained the names of all of the
registered voters for the voting district at issue. Once an absentee ballot was
issued to a voter, an “A” was placed on the precinct register by the name of
that voter. This register was then provided to the precinct workers so that if a
person who had received an absentee ballot attempted to vote in person, the
precinct worker would know that they were disqualified. This is consistent with
Resolution No. 312.3.g: “If a voter has been issued an absentee ballot, then
that person will not be allowed to vote in person at the polling place.”
The practice at the polling place was for the precinct worker to place
his/her initials beside the name of a voter who voted in person. A cursory
examination of the Precinct Register shows that none of the names of registered
voters contained both an ‘A’ and initials of a precinct worker, indicating that
no voter cast ballots both ways. A more detailed examination of the record,
however, reveals an irregularity.
The record is clear that 116 people
voted at the polls. As expected, 116 names had initials placed beside them on
the Precinct Register. Curiously, while the record is clear that 184 absentee
ballots were returned, there are only 167 ‘A’s on the Precinct Register.
Therefore, it would have been possible for 17 voters to cast ballots in person,
as well as by absentee.
As part of the investigation, this office was
able to retrieve all of the absentee ballot envelopes returned to Pocomoke
City’s post office box which were subsequently opened and counted on election
night. The investigator was then able to determine who the additional 17 voters
were. Reviewing those names on the Precinct Register the record is clear that
none of the additional 17 absentee ballots had initials beside their names. It
can be concluded, therefore, that nobody who voted by way of absentee ballot
also voted at the polling place on election day.
The issue then becomes
whether the person or persons responsible for marking the ‘A’ on the Precinct
Register and failed to do so for these 17 voters have committed a criminal
violation. The Pocomoke City Charter provides at §C-43 that:
“Any person
who (a) fails to perform any duty required of him under the provisions of this
Title or any ordinances passed thereunder, (b) in any manner willfully or
corruptly violates any of the provisions of this Title or any ordinances passed
thereunder, or (c) willfully or corruptly does anything which will or will tend
to affect fraudulently any registration, nomination or City election, shall be
deemed guilty of a misdemeanor.”
There is nothing to indicate that the
person[s] who failed to mark the Precinct Register with an ‘A’ when the absentee
ballots were mailed from the town to the voter had any mens rea or criminal
intent. Keep in mind that there is no evidence that the failure to mark the ‘A’
on the Precinct Register was done so willfully or corruptly. It is quite likely
that the employee simply forgot to make the required notation. It is not
difficult to imagine a scenario where an office worker is mailing ballots,
answering telephones, and dealing with citizens at a counter when that citizen
visits an office for official business. It is difficult to imagine that the town
intended to criminalize a negligent act on the part of one of its employees.
While every citizen has the right to a fair election, and every candidate has
the right to expect neutrality on the part of the election board, there can be
no expectation for any system to be perfect.
Issue discovered during the
investigation but not included in complaint: numbering of the absentee ballots.
In Pocomoke City, when a person returns an application for an absentee
ballot to the Board of Elections Supervisors, the Board then places a Voter I.D.
Number on that application, fills in the appropriate District Number and assigns
a Ballot Number, in accordance with Resolution No. 312.3.d. A blank absentee
ballot, together with a ballot envelope, and a self-addressed stamped envelope
is then provided to the voter, in accordance with Resolution No. 312.3.e.
The problem is that the ballot itself is marked with the ballot number.
This contradicts another provision of Resolution No. 312. At paragraph f, the
resolution provides for how the absentee ballots are to be approved when
returned to the Board of Elections Supervisors:
The Board of Elections
Supervisors (and appointed election workers) will open the ballot envelopes
checking to be sure that the envelopes are signed, that there are not
distinguishing marks on the ballot, that only one box has been checked, etc. The
Board of Elections Supervisors has the authority to disqualify an absentee
ballot for failure to sign oath, making distinguishing or identifying marks on
the ballot, or checking more than one box. (emphasis added).
The
procedure witnessed election night by S/I Sarver was completely appropriate. The
first envelope, which contained the absentee ballot number was opened and placed
in one stack. The Ballot Envelope was then reviewed, and if found to have the
oath of absentee voter signed and filled out, was placed into another stack.
Finally the absentee ballot itself was reviewed, and if only one box was signed,
was placed into a third stack. After all of the envelopes were opened, the stack
of qualified absentee ballots was then counted.
If the purpose of
assigning a ballot number is, as stated by Resolution No. 312.3.d “to track how
many ballots have been issued and returned in order to prevent the reproduction
of absentee ballots”, then the ballot number on the ballot envelope would
accomplish that purpose. There should be “no identifying mark” on the ballot
itself. In this election, the “identifying mark” was placed on the absentee
ballot not by the voter, but by the Board of Elections Supervisors itself. The
Board has the authority to disqualify each and every absentee ballot cast in the
April 7 municipal election, accordance with Resolution No. 312, because of its
own action.
Clearly, the ballot number enables a party to identify not
only who the voter was, but how the voter voted. That, in fact, is how S/I
Sarver was able to identify the blank votes cast and then to interview those
voters. If a voter can be identified and interviewed for investigative purposes,
it is possible that they could be identified and interviewed for any other
legitimate or nefarious purpose.
Sarver’s report goes into some detail
in an attempt to resolve this issue:
I asked Justice if she had received
any training in election procedure from anyone and she advised she had not.
Justice further stated that the city clerk before her, Janet Hood, had performed
many elections during her tenure and had followed Justice through her first
election so she could see how and what the city clerk did. S/I Sarver, Case
Investigation Report, Supplement 1
I contacted the retired city clerk,
Janet Hood. I contacted her to ascertain approximately when the numbering of the
ballots began. Hood stated that she thought it began in the 1990’s but could not
remember exactly. I asked Hood why the ballot numbering started but she advised
she did not recall. Hood stated that she taught Justice to number the ballots
when she trained Justice to preside over the elections. S/I Sarver, case
Investigation Report, Supplement 2
This is an issue which must be
remedied before the next Pocomoke City municipal election. Countless military
people have died over the course of this nation’s history to protect the
constitutional rights of the rest of us. Chief among those rights is the right
to a secret ballot and a fair election. If the town employees and volunteers
working for the Board of Elections Supervisors need additional training, and it
seems apparent that they do, then that training must be provided. To foster
participation in the democratic process, all citizens, as well as non-victorious
candidates, should have the ability to have confidence in the outcome of the
election process.
There is a common-law criminal offense in Maryland
known as “Misconduct in Office”. This offense provides that a public officer
(such as a member of the Board of Elections Supervisors) who, acting within
their official capacity, corruptly commits an unlawful act, corruptly fails to
perform an official act required by his/her duties, or fails to do an act as a
result of a corrupt purpose rather than as a result of the exercise of official
discretion, is guilty of a common-law misdemeanor criminal offense.
In
the case at hand, on this issue, Justice only did what she was taught to do by
her predecessor. Ms. Hood is neither a public officer nor did she have any roll
in this election. As to the members of the Board of Elections Supervisors, due
to lack of knowledge on their part, I find no “corrupt” act or failure to act.
However, this document may constitute notice to them, and if not corrected
before the next municipal election, the conclusion could be different.
Whether the Board of Elections Supervisors chooses to disqualify the
absentee ballots in the most recent election because of the identifying marks
they placed on the ballots is up to them. Whether the election results should be
overturned because 17 voters had the ability to vote twice, even though there is
no evidence that they did vote twice, is up to the Board of Elections
Supervisors.
The role of this Office is to determine, based upon the
facts revealed by the extensive investigation of S/I Sarver and the law of
Pocomoke City and the State of Maryland whether there is probable cause to
believe that any crime was committed. It is my conclusion that there is not.
Respectfully submitted,
Joel J. Todd
State’s
Attorney
for Worcester County, Maryland
