WYMZIE, STEPHANIE BURKE LOSES ELECTION COMPLAINT

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;

That the Pocomoke City Board of Supervisors of Elections had failed in performing their duties by:

not maintaining a current list of registered voters;
allowing citizens who did not live in the proper district to vote;
allowing non-registered citizens to vote;
not accurately maintaining a list of absentee voters to prevent an absentee voter from physically voting as well; and
“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:

Copy of the voter registration list and the certification envelopes that accompanied the absentee ballots;

Application for Absentee Ballot forms

Map of Voting District 4

Absentee Ballots

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:

Stephanie and William Burke

City Clerk Carol Justice

Tracey and Bruce Cottman

50 absentee voters from the April 14, 2009 election (the names of which will be kept confidential)

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
( As discussed earlier, this investigation revealed that one of the absentee ballots was left blank because that voter felt intimidated by the presence of Mrs. Cottman as the voter filled out the ballot. The voter then attempted to vote at the polls but was denied the right to do so because of the 'A’ on the precinct register beside the voter’s name.