Schade v. Maryland State Board of Elections

⁵ BELL, C.J. The instant matter finds its genesis in a challenge brought by several registered Maryland voters and candidates for public office, collectively, “the appellants,” to the decision of the Maryland State Board of Elections (“the State Board”), one of the appellees, 1 to purchase and certify, pursuant to Maryland Code (2003) §§ 9-101 2 and 9-102 3 of the Election ⁷ Law Article (“EL”), the Diebold AccuYote-TS (“Diebold”) direct recording electronic (“DRE”) voting system for use in the November 2, 2004 elections. Specifically, the appellants, plaintiffs below, citing vulnerabilities in the system’s security and accuracy, sought injunctive relief in the form of the decertification 4 of the DRE voting machines, or, in the alternative, the addition of a voter-verified paper audit trail of all ballots cast, which would permit an independent audit of the machines. The question presented on this appeal is whether the Circuit Court for Anne Arundel County erred in finding that the State Board acted reasonably in purchasing and certifying the Diebold voting system, thus denying the appellants’ request for a preliminary injunction. In addressing this issue we consider whether the Circuit Court applied the correct standard in assessing the security and accuracy of Maryland’s voting system and whether it properly exercised sound discretion in examining the factors necessary to support a preliminary injunction.

I. Electronic voting machines have been used in Maryland since 1996, when Baltimore City became the first jurisdiction to procure and deploy a DRE voting system. 5 Precipitated in ⁸ part by the 1994 Gubernatorial Election, in which, in a very close election for governor, there had been problems with vote counting accuracy and conducting recounts, Maryland began looking for ways to improve its voting process. As part of the State’s election reform, a series of commissions were appointed to study the elections process in Maryland. As a result of that examination, it was suggested that elections in Maryland needed to be modernized and that uniformity should be the benchmark for any such efforts. In addition, a revision to the then antiquated election code was recommended.

In response, the General Assembly mandated the “maximiz[ation of] the use of technology in election administration, including the development of a plan for a comprehensive computerized elections management system[,]” EL § 2-102(b)(7), 6 and, on December 4, 2000, Governor Glendening, pursuant to Executive Order 01.01.2000.25, formed a Special Committee on Voting Systems and Election Procedures in Maryland (“the Special Committee”). The Special Committee issued a report in February 2001, recommending that Maryland adopt, in an attempt to eliminate a myriad of administrative problems which existed as a result of the differing systems that were being used at the time by the various counties around the State, a uniform statewide voting system for both the polling places and for absentee voting. It preferred, citing their reliability, accuracy and security, a DRE voting system for all polling places and an optical scan voting system for absentee ballots. The Special Committee indicated that there were several advantages to a DRE system, including, inter alia, the machines are programmed to prevent overvotes, reduced cost, no questionable marks resulting in the need to guess at voter intent during a recount, no need for the printing of paper ⁹ ballots, the blind and visually impaired voters would be able to cast their votes without assistance, and ballots can be programmed in multiple languages.

The Special Committee also noted the potential difficulties with the implementation of a DRE system: compared to optical scan systems, such a system may cost more for some local jurisdictions because of the sophisticated technology and the need for multiple units per precinct, rigorous, comprehensive testing would have to be performed in order to insure the accuracy and security of the system’s software, and additional personnel would have to be hired or available to the State and Local Boards of Elections. Some specific recommendations of the Special Committee included that the system: “Provide the voter the highest degree of secrecy as practicable when casting his or her vote[;]” “Be capable of creating a paper record of all votes in order that an audit trial [sic] [be] available in the event of a recount[;]” “Allow, during the pre-election testing of voting systems, a random number of ballots or votes to be tested to ensure accurate tabulation[;]” and “Be available for leasing rather than purchasing in order to take advantage of anticipated technological advances.... ” The Maryland General Assembly adopted some of the Special Committee’s most significant recommendations at its 2001 session, enacting Chapter 564, Laws of Maryland 2001, which added portions of the language now embodied in EL, Title 9, Subtitle l. 7 That enactment required that the uniform statewide voting system be fully implemented by July 1, 2006. 8 ¹⁰ Adhering to the directives of the General Assembly, the State Board issued a Request for Proposals to purchase DRE voting machines for use in all Maryland polling places. The State Board also hired an evaluation agent with expertise in voting systems and created an ad hoc committee, the Election System Evaluation Committee (“ESEV”), to assist in examining the proposals and ultimately with the selection of a vendor. At the conclusion of its investigations, after meeting with various vendors and evaluating the DRE voting machines, the ESEV declined to endorse any of the vendors and recommended that the State invoke its right to reject all proposals and not move forward with the purchase of electronic voting machines altogether.

Ultimately, the State Board purchased the Diebold system for use in Maryland polling places. The voting system was to be implemented in three phases: Phase I included deployment of the DRE machines in four counties—Allegany, Dorchester, Montgomery, and Prince George’s—for the 2002 elections; Phase II included implementation in 17 (eventually 19) counties for the 2004 elections; 9 and Baltimore City was to receive the system in 2006 as part of Phase III. The Diebold machines were used successfully in the four “Phase I” counties during ¹¹ the 2002 elections, 10 thus confirming for the State Board that it should continue with Phase II of the system’s implementation. Therefore, the State Board purchased Diebold machines for the remainder of the counties, other than Baltimore City, for the 2004 March Primary Election.

This decision by the State Board was not without a great deal of controversy. The first criticism of the State Board’s actions was contained in a report, entitled “Analysis of an Electronic Voting System” (“the Hopkins Report”), published by Dr. Aviel Rubin, a professor at Johns Hopkins University, and his colleagues. Claiming to have reviewed the source code used in the Diebold machines, the Hopkins Report questioned the security of the newly acquired machines, identifying several theoretical 11 problems in the source code that could permit someone to alter the election results. The report also emphasized the need for a voter-verified audit trail in order to secure the integrity of the entire election process.

In response to the Hopkins Report, attempting to assess whether the theories proposed by Dr. Rubin were valid, Governor Ehrlich ordered an independent risk assessment of the Diebold machines. Accordingly, the Department of Budget and Management engaged Science Applications International Corporation (“SAIC”), an independent consultant, to examine the Diebold machines as implemented, at the conclusion of which SAIC released a report. While on the one hand criticizing Dr. Rubin, claiming that he did not have a complete ¹² understanding of the system, including the procedural controls and general voting environment, SAIC’s report also identified a series of vulnerabilities in Maryland’s voting system and elections process as a whole, noting several areas in which improvements could be made. The report went on to make recommendations for the mitigation of these vulnerabilities.

Taking into consideration SAIC’s report, the State Board crafted a “Voting System Security Action Plan,” specifying the steps it would take to improve the security of elections in Maryland. Subsequently, the Department of Legislative Services, in an attempt to conduct its own analysis of the security issues raised by the Hopkins and SAIC reports concerning the Diebold system, hired RABA Technologies, LLC (“RABA”), an Information Technology security consulting firm. The RABA group was led by Dr. Michael A. Wertheimer, a National Security Agency security expert, specializing in cryptologic mathematics. The RABA report criticized both Dr. Rubin’s and SAIC’s report, and it identified additional vulnerabilities in the voting system.

Moreover, similar to the earlier reports, the RABA report made recommendations for changes and improvements to both the voting system, as well as Maryland’s elections process. The State Board evaluated the RABA report and adopted several, but not all, of the recommended security measures in time for the 2004 primary election. Further security enhancements were also made after that year’s primary election. 12 Although it did not implement all of RABA’s recommenda ¹³ tions, the State Board examined each recommendation fully and produced two written reports of its own: “Response to: Department of Legislative Services Trusted Agent Report on Diebold AccuVote-TS Voting Systems” and “Progress Report: Department of Legislative Services Trusted Agent Report on Diebold AccuVote-TS Voting Systems.” In these reports, the State Board offered an explanation as to why recommendations were not adopted. 13 The use of the Diebold machines during the 2004 March primaries, in the additional 19 counties, brought the State Board one step closer to executing Phase II of its implementation plan.

II

On April 21, 2004, still sensitive to the concern held by many that the Diebold machines were still not secure and would not protect the integrity of the voting process for the approaching November 2004 elections, a group of registered Maryland voters and candidates for public office 14 sought expedited judicial relief in the Circuit Court for Anne Arundel County, pursuant to EL §§ 12-202 15 and ¹⁴ 12-203, 16 of the State Board’s decision to purchase and certify the Diebold voting machine. The appellants, plaintiffs below, later filed an Amended Complaint and Verified Complaint on May 13, 2004. Specifically, the appellants requested the entry of a permanent injunction requiring the State Board to decertify all Diebold voting machines “until such time as they can be updated to comply with the strictures of Maryland law that safeguard the security and integrity of Maryland’s voting systems.” 17 If upgrades to the voting system could not be ¹⁵ implemented before the November elections, the appellants proposed that the State Board revert to the pre-existing optical scan system that had been previously used throughout the State. One day prior, on May 12, 2004, the National Federation for the Blind (“NFB”) filed, pursuant to Maryland Rule 2-214, 18 a Motion to Intervene in the action.

Having recently brought suit against the State in federal court on behalf of blind voters so that they could vote independently and privately, the NFB sought to uphold the use of the Diebold machines. The State Board and the NFB, both moved to dismiss the appellants’ verified complaint, filing motions on May 21, 2004 and May 26, 2004, respectively. In addition, on May 27, 2004, the State Board filed a Motion for a Protective Order. By that motion, claiming that the “[plaintiffs’ proposed discovery is intrusive and burdensome,” and that the “Court should exercise its discretion to prevent the plaintiffs from diverting election officials from their important governmental tasks, unless it ¹⁶ holds that a claim has been stated,” it sought to preclude all discovery in the case until there had been a ruling on its Motion to Dismiss. 19 Rather than rule on the protective order motion, the Circuit Court ordered a scheduling conference for June 28, 2004 to “discuss the discovery problems, the Motion to Dismiss, and an orderly, but expeditiously set scheduling procedure for all to follow.” Before the scheduling conference, however, on June 25, 2004, the appellants filed a Motion for Preliminary Injunction “to maintain the status quo and enjoin [the] Defendants from using the Diebold ... voting system in the November 2004 elections [,]” claiming that the remedy they sought was “in danger of being extinguished not by a ruling [on] the merits but by the passage of time.” They claimed further that the State Board “recklessly certif[ied] the Diebold ... voting system,” and that it did not “fix or decertify the machines once numerous reports commissioned by the state of Maryland ... confirmed that the machines could not preserve the security and reliability of Maryland elections.” Both the State Board and the NFB filed oppositions to the appellants’ request for injunctive relief.

At the scheduling conference, the court ordered discovery stayed until there was a ruling on the State Board’s and the NFB’s motions to dismiss, the hearing for which had been set for July 22, 2004. In addition, the court set the matter for a three-day evidentiary hearing, from August 25-27, regarding the appellants’ motion for injunctive relief. At the July 22, ¹⁷ 2004 hearing, the court held both motions to dismiss sub cuña. At the evidentiary hearing, the Circuit Court heard testimony from a number of witnesses.

The appellants offered the testimony of three experts, one State Board official and two non-party lay witnesses, while the State Board called one expert and several State Board officials, and the NFB called one NFB official. 20 Conceding that decertification of the Diebold voting machines was no longer feasible, the appellants made three arguments. First, they alleged that the Diebold DRE voting system, as theretofore implemented, did not protect the security of Maryland’s voting process and did not count votes accurately. At the crux of the appellants’ argument were the numerous vulnerabilities in the machines. The appellants offered expert testimony that underscored these vulnerabilities in addition to testimony detailing some of the specific problems encountered during the March primaries. 21 The appellants, moreover, maintained that the State Board ¹⁸ failed to respond adequately to the security and accuracy concerns related to the system.

The appellants’ next argument pertained to the system’s lack of capacity to provide an audit independent of the already existing security and accuracy concerns of the system itself. They claimed that without a voter-verified audit trail, the State, in the event of a recount, would only have the same inaccurate system which may have called into question the results of the election in the first place to rely upon. 22 Thus, the results, the appellants maintained, would never be completely accurate and, in any event, would not inspire confidence in their accuracy. Finally, the appellants asserted that the remedies sought at trial, i.e. parallel monitoring of machines, poll worker training, a paper ballot option for voters, and complete implementation of the RABA recommendations, would minimize the security and accuracy failings of the machines, were feasible and could be put into place prior to the November election, and would not significantly disrupt the election process. The appellants maintained, in addition, however, that whatever the results of the November election, whether some or all of the system’s deficiencies were cured, the lack of public trust in the system itself, due to the many public reports criticizing it, undermined the integrity of the election and its results.

Drs. Rubin and Wertheimer, defending their reports, were the appellants’ expert witnesses. 23 The cornerstone of Dr. ¹⁹ Rubin’s opinion, applying a “perfection” standard, was that it is impossible for a paperless electronic voting machine to protect the security and accuracy of the voting process. As a solution, he proposed a voter-verified audit trail. 24 Dr. Rubin further testified that, in July 2003, approximately 13 months prior to the hearing in the Circuit Court, he had examined an older version of the source code found in the Diebold machines and that the system was inherently susceptible to security vulnerabilities, which could potentially result in an undetected alteration of election results. It was stipulated, however, that he did not know whether the source code that he had previously examined was the same version of the source code that was presently in the machines and that would be used during the November elections.

In addition, Dr. Rubin testified that he was not aware of the changes made by the State Board since the date of his study and whether those changes improved the security of the voting system overall. 25 He testified further that he was unaware of the security standard imposed by Maryland law pertaining to voting systems, and that he had solely focused on the security of the system’s software and did not take into consideration any other equally ²⁰ important factors of the election process. Finally, Dr. Rubin admitted that many of his initial assumptions about the Die-bold machines were incorrect and unrealistic. Dr. Wertheimer testified at length with respect to the evaluation that he and his team, collectively, “the RABA team,” conducted on the Diebold voting system. The RABA team, unlike Dr. Rubin, did not focus only on a single element of the system, i.e. the software; instead, it focused on the technical, operational and procedural components of the system, applying a “military” standard to the system’s review.

As explained by Dr. Wertheimer: “In my view, I think voting is a fundamental infrastructure for this country. That’s the attitude I brought to this analysis. I think it’s as important as a software that controls flight traffic. I think it’s as important as our banking system, things I’ve had to defend____I prefer to apply a model, in my opinion as an intelligence official, that if you’re going to protect this at the level we protect other critical infrastructure, the model has to be that what is your adversary, how much is he willing to spend to throw an election.

And we applied that methodology. As a result of that, we made a number of recommendations and graded the system quite low.” Dr. Wertheimer went on to recognize that the level of security imposed when evaluating any system is a policy choice and that he, like Dr. Rubin, did not know if the standard he applied in his analysis was the same as that imposed by Maryland law. Dr. Wertheimer acknowledged that there is no uniform standard applied to the evaluation of Maryland’s, or any, voting system and that “reasonable people can have differences of opinion on virtually any aspect of the electronic voting machine debate.” Finally, Dr. Wertheimer, while noting that the Diebold machines did not pass the RABA team’s rigorous attack, testified that he was not sure as to how many hackers would be deterred by implementing the RABA recommendations. ²¹ The State Board and the NFB advanced various arguments in response. To begin, the State Board pointed out that the appellants were not, in fact, seeking to maintain the status quo with their preliminary injunction motion, for the status quo in Maryland was, after the March primaries, the use of the Diebold DRE machines.

With the deployment of the machines statewide in the primary election, the State Board argued that the status quo could not be maintained with the addition of any other system. Specifically, it posited that the introduction of a paper ballot option, or any other voter choice, would violate the “uniform” system requirement of EL § 9-101(b). The State Board asseverated that giving voters a choice of systems would destroy uniformity and establish a bad precedent. Moreover, such a choice was, the State Board insisted, impractical and impossible to administer at such a late date.

The State Board argued further that the certification of a voting system in the State is delegated, by the General Assembly, to the Board itself. According to the State Board, the question before the trial court was not whether it had acted correctly, but, instead, whether it had acted arbitrarily or capriciously. The State Board maintained that its decision to purchase and certify the Diebold machines was reasonable and that, once concerns were raised about the security of the machines, it evaluated and thoughtfully responded to each recommendation. In the State Board’s view, no further action was needed.

The NFB’s main argument, not surprisingly, related to accessibility. The NFB noted that, for the first time, blind voters were able to vote independently and secretly. It noted further that many of the interim remedies proposed by the appellants did not involve issues of accessibility, other than the paper ballot option which, the NFB pointed out, in fact, would be a matter of inaccessibility for blind voters, as their votes would, as a result, be private no longer. In addition, the NFB questioned whether a paper option would satisfy the statutory requirements, outlined in EL § 9-102, that the appellants alleged the DRE machines did not satisfy.

Expounding upon ²² some of the many vulnerabilities of a paper ballot option, i.e. residual votes, under-voting, over-voting, stray marks, ballot box stuffing, the NFB contended that the appellants could not prove that such an option would be any more secure than electronic voting; thus, it urged, the court could, and should, not compel the State Board to adopt it. The witnesses for the defense, many of whom were, as mentioned earlier, State Board officials, maintained that the State Board would be able to conduct a secure and accurate election in November with the use of Diebold DRE machines. According to their testimony, many of the preliminary criticisms of the machines were largely hypothetical and inconsistent. Additionally, they described, in detail, the corrective measures that the State Board had taken to correct some of the valid security concerns that affected the system.

The defense witnesses concluded that the greatest threat to the security and accuracy of the election was not the DRE machines, but an eleventh hour challenge, such as the one brought by the appellants. The defense called one expert witness, Dr. Michael Shamos. 26 Dr. Shamos testified that he had reviewed all of the reports on the Diebold voting machines, as well as the State Board’s responses. He had also reviewed the applicable Maryland law. From his extensive research, Dr. Shamos concluded that Maryland would be able to provide a secure November election using Diebold machines.

According to Dr. Shamos, there does not exist a voting system that is impervious to fraud, a notion he believes should be reflected in the standard applied when evaluating such systems. Applying a “reasonableness” standard, he explained: “[T]he standard of security is not 100 percent inviolability, or 100 percent safety against any conceivable risk that ²³ somebody may dream up. It is a balancing of the kinds of activities that occur in polling places, the kinds of activities that hackers attempt to perform versus the realism and expense of adopting counter measures. And when that balancing is done, the Board, or whatever state or whatever authority it is that is empowered to make that decision does that balancing and decides some systems are safe and some systems aren’tf.]” As a certifier of electronic machines himself, Dr. Shamos went on to admit that he would “never say [a system is] 100 percent secure because [he] would be lying.” Dr. Shamos’ testimony also directly refuted some of the opinions offered by Drs.

Rubin and Wertheimer. 27 More specifically, Dr. Shamos disagreed with Dr. Rubin’s view that a voter-verified paper audit trail is necessary. According to Dr. Shamos, no commercial system provides for a voter-verified paper audit trail, and even if there were such a system, it would do no more than provide partial assurance to the voter that his or her vote has been accurately counted. As Dr. Shamos explained, such a paper trail “does not solve the problems that are alleged to affect or afflict DRE machines.” Moreover, Dr. Shamos noted that a paper audit trail would “simply restore[ ] us to the 1850’s when all manner of chicanery was performed through manipulation of pieces of paper. And we don’t have any better technology now than we had 150 years ago for assuring the security of pieces of paper.” It was Dr. Shamos’ testimony that paper-based ballot options, i.e. paper ballots and optical scan systems, 28 were less, not more, secure than DRE machines, and that paper ballots and optical ²⁴ scan systems were not remedies, but instead alternatives, at best, to the alleged vulnerabilities in DRE machines.

In a written opinion, the Circuit Court denied the appellants’ request for injunctive relief. The trial court rejected the appellants’ arguments, finding, instead, that Dr. Shamos presented “the true voice of reason” and was “the most credible expert in th[e] matter.” The Circuit Court enunciated: “While the Court is extremely concerned with the allegations of vulnerabilities and security flaws in th[e Diebold] system, as well as any other system, the credible testimony by Dr. Shamos indicated the State of Maryland is now employing all reasonable solutions and fixes suggested by all experts and has developed a system that could and should withstand external attack.” Adopting Dr. Shamos’ “more appropriate standard of care,” the Circuit Court went on to consider and evaluate the pertinent factors for injunctive relief. The court was not convinced that the appellants had established a real probability of prevailing on the merits and remarked that the harm that the State would suffer if it had to implement a very costly paper option for the “small number of plaintiffs” who wished to have that option far outweighed the risk of those plaintiffs’ votes not being counted due to some breach in the DRE machines. In other words, the hypothetical harm proposed by the appellants, in the trial court’s opinion, did not outweigh the real harm that the appellees would suffer were it to rule otherwise.

In addition, the Circuit Court found that the DRE machines “clearly protected” “the secrecy of the ballot” for visually impaired voters. The implementation of DRE machines, the court reasoned, allowed “blind voter[s], for the first time, [to] vote without the need of another looking over their shoulder and guiding them through the process.” The Circuit Court also questioned the imminency of the appellants’ harm. It noted, in that regard, although not finding the action barred by laches, that the appellants “had ample notice, as early as 2002, of the use of the Diebold machines and clearly could ²⁵ have taken steps earlier than late April 2004 concerning the November 2004 presidential election.” Although the Circuit Court acknowledged that there was a possibility that some votes may not be counted, it was confident that, due to the State Board’s implementation of “the more reasonable requests and recommendations made by all the studies,” the many “doomsday-type scenarios” advanced by the appellants would not occur, in fact. Accordingly, it determined that they could not cause the appellants irreparable harm.

According to the court, “the overwhelming factual evidence clearly shows there have been no verified incidences of tampering with these machines anywhere in the United States. The votes have been counted accurately. Recounts have occurred with complete accuracy, and there is no reason to believe this will not continue.” Finally, the Circuit Court found that the interests of the public were being served and protected “by the careful and complete review by the State Board of Elections of all reports, independent testing, and the eventual implementation of those factors deemed appropriate to be instituted for the protection of the public and the voting system.” Granting the appellants’ injunctive relief so close to the election would, the court reasoned, only cause voter confusion. In response to the Circuit Court’s ruling, the appellants noted an appeal to this Court 29 and filed a Petition for Writ of Certiorari, which this Court granted.

Schade v. Maryland State Bd. of Elections, 383 Md. 211 , 857 A.2d 1129 (2004). Oral argument was heard on September 14, 2004, and, on that same day, the Court issued its Order affirming the judgment of the Circuit Court. We now set forth the reasons for that Order.

III

Before this Court, the appellants argue that the Circuit Court both erroneously found that the State Board acted ²⁶ reasonably in its purchase and certification of the Diebold voting system, and erroneously denied their request for injunctive relief. 30 Conceding, as they did below, that decertification of the DRE machines and the creation of a paper audit trail were no longer feasible remedies, on appeal, the appellants requested this Court to compel the State Board to implement certain security upgrades and measures to improve the security and reliability of the Diebold machines for the November 2004 election. Specifically, they sought the implementation of nine RABA recommendations, 31 the adoption of a series of federal best practices election guidelines, 32 and a ²⁷ paper ballot option for those voters who do not wish to use DRE machines. Conversely, finding no error in the Circuit Court’s ruling, the appellees, defendants below, urged this Court to affirm the trial court’s denial of injunctive relief. A. At the core of the appellants’ argument is that the Circuit Court applied an incorrect standard in assessing the security and accuracy of Maryland’s electronic voting system.

They allege that the Circuit Court, by adopting wholesale the testimony of defense witness Dr. Shamos, read into the applicable statutory requirements, see EL §§ 9-102 and 9-103, a “lesser” standard for the evaluation of the State Board’s actions. This application of the statutory requirements by the Circuit Court, the appellants posit, “ignored the statutory purpose of protecting public confidence in the integrity of the election, discounted the importance of elections to our democratic system, disregarded the unique multitude of risks presented by electronic voting systems, and brushed aside the appropriate standard suggested by the security experts hired by the Maryland legislature,” i.e. Dr. Wertheimer and the RABA team’s higher, “military,” standard. 33 It is the appellants’ assertion that, “absent this clear legal error, the court below could not have reached its conclusion that [they] showed no likelihood of success on the merits.” The appellants insisted that “the circuit court’s decision to settle with ‘reasonable’ security and ‘reasonable’ accuracy as opposed to the higher level of security applied to other critical systems that support our democracy is both inexplicable and legally incorrect” given the serious nature of the November 2004 election where there exists “the very real possibility that a small margin of votes will determine the results.” Recogniz ²⁸ ing that the election at issue in the case sub judice was not an “ordinary” one, but instead a Presidential election, see Bush v. Gore, 531 U.S. 98, 112 , 121 S.Ct. 525, 533 , 148 L.Ed.2d 388 (2000), the appellants maintained that “the critical need to secure the integrity of the election process is further underscored!)]” Moreover, the appellants claimed that the Circuit Court’s application of a “reasonableness” standard caused the court, in turn, to implement the incorrect standard to its review of the State Board’s actions. According to the appellants, the State Board’s duty to select and certify a voting system, as outlined by the election code, involves a legislative mandate as opposed to an agency decision warranting discretion, making it ministerial in nature.

Thus, the appellants averred that the State Board is not entitled to the more deferential “arbitrary and capricious” standard imposed by the Circuit Court. Instead, the appellants posited that, by allowing for judicial review of the State Board’s actions, see EL § 12-202, the Code ultimately leaves the decision as to which voting system should be certified to this Court. Disagreeing with the appellants’ characterization of the State Board’s role in the selection and certification of voting systems as ministerial, the appellees argued that the State Board, through the delegation of the General Assembly, see EL § § 9-101 through 9-103, was acting in a policy-making or quasi-legislative capacity. Citing Fogle v. H & G Restaurant, Inc., 337 Md. 441, 458 , 654 A.2d 449, 458 (1995), the appellees posited that the Circuit Court was bound to give deference to the State Board’s decision.

More specifically, the appellees, relying on Proctor v. Brookhart, 195 Md. 200, 204-05 , 72 A.2d 682, 683-84 (1950), asserted that the State Board’s decision to purchase and certify the Diebold DRE machines must be reviewed under the “arbitrary and capricious” standard of review, the standard applied by the Circuit Court. In applying this standard, the appellees proffered that the State Board’s decision was supported by a rational evaluation process. It is the appellees’ contention that the appellants did ²⁹ not, and could not, demonstrate that the State Board acted arbitrarily and that the State Board had, in fact, “shown that it addressed the alleged vulnerabilities in the older versions of the software and improved other aspects of security, after reviewing the critical Rubin, SAIC, and RABA reports.” According to the appellees, the appellants could not “clearly articulate a proposed remedy ... that: has not already been considered and implemented or rejected by the SBE; would effectively increase security by a significant amount in light of the cost of implementation, and, that is feasible at this late date.” Likewise, the appellees argued that it cannot be shown that the Circuit Court abused its discretion in finding that the Deibold voting system was secure. Citing to the testimony of Dr. Shamos, and to the appellees’ own witnesses, who agreed that, on the issues of security, “knowledgeable persons could disagree,” the appellees asserted that the Circuit Court “certainly properly exercised its discretion to credit that testimony.” Moreover, the appellees posited that the Circuit Court exercised sound discretion in weighing the testimony of all of the experts and crediting the most “reasonable,” as there is nothing in the applicable statutory law that requires absolute security.

The appellees explained, even if the standard were the “most secure” system, there was an ample record available for the Circuit Court to conclude that the Diebold DRE system was, in fact, the most secure system available. B. Assuming arguendo the correctness of the Circuit Court’s incorporation of Dr. Shamos’ “reasonableness” standard, the appellants argue, that the record, as a whole, did not support the denial of injunctive relief. First, the appellants alleged that there was present at the hearing, conclusive evidence that they were likely to succeed on all of the issues raised in their preliminary injunction motion. Again criticizing the Circuit Court’s reliance on Dr. Shamos’ testimony, the appellants proffered that their experts, who are regarded as “forefront researchers in the field,” were more qualified than Dr. Shamos ³⁰ and that, therefore, their opinions should have been given greater deference.

The appellants urged this Court to set aside the Circuit Court’s findings “in light of the weight of evidence to the contrary.” The appellants also asserted that the Circuit Court erred in its rejection of their request for partial relief. They submitted that the Circuit Court “focused almost exclusively on the paper ballot option,” and summarily concluded that the State Board had implemented all reasonable recommendations. Moreover, the appellants alleged that the Circuit Court abused its discretion by not taking into account all of the evidence, claiming that the court “did not assess or mention” various reports 34 and “failed to address” the testimony of certain witnesses, particularly their witnesses. Next, the appellants contended, balancing the harm to them with that to the appellees, that their “modest request” for relief would only require the State Board to “exert a little more effort.” The appellants stated further that any extra effort required on the part of the State Board can be attributed to its own unwillingness to act sooner, thus not truly causing the State Board any “harm.” On the other hand, the appellants maintained that they were harmed by the Circuit Court’s delay in hearing their complaint.

They argued that their right to the relief they initially sought, i.e. decertification and a voter-verified audit trail, was lost, not on the merits of the case, but as a result of the Circuit Court’s inaction. Moreover, the appellants posited that the Circuit Court’s ³¹ ultimate denial of their claim for partial relief on the grounds that it was too late for its implementation, caused them irreparable harm. Finally, the appellants contended, quoting Common Cause v. Jones, 213 F.Supp.2d 1110 , 1113 (C.D.Cal.2002), that it is “self-evident that replacing voting systems that deprive individuals of the right to vote is clearly in the public interest.” They asserted further that the interest of the public will be served by the occurrence of a “timely election that reflects the will of the voters.” 35 The appellees, on the other hand, contended that it was unlikely that the appellants would succeed on the merits. According to the appellees, the appellants failed “to show the relative merits of alternative voting systems with respect to security!,] nor was there any ‘basis for a claim that some other voting system more closely satisfies the certification requirements of the statute.’ ” In addition, the appellants’ relief sought is illegal under federal and Maryland law, violating “the mandate to make voting equally accessible to the blind [under the Americans with Disabilities Act] and the State statutory requirement that a voting system, to be certified, must protect the secrecy of the ballot.” See § 9-102(c)(l)(i).

The appellees maintained that the trial court “expressly undertook to balance the hardships” and correctly found it “to tilt markedly against injunctive relief.” As stated above, blind voters would be harmed by the grant of an injunction. No system suggested by the appellants was accessible to blind voters, thus causing these individuals ultimately to have to choose between “secrecy and confidence in the system.” The appellees also argued that the exorbitant cost of the appellants’ paper ballot option, coupled with the risks that the ³² introduction of that system would potentially create, would cause them considerable harm. The appellees claimed that the appellants, on the other hand, would not suffer any harm if injunctive relief were not granted. The appellants, the appellees submitted, managed to demonstrate only a hypothetical risk of irreparable harm.

They argued further that the harms proposed by the appellants “had never materialized in any of the more than 20 Maryland elections where the Diebold AccuVote-TS DRE machines have been used” and that the appellants delay in bringing their action undermined their claim of irreparable harm. Moreover, the appellees posited, the appellants acted unreasonably in waiting months, arguably years, to bring their claim. It was the appellees’ belief that “there is no injury, much less irreparable one, if injunctive relief is denied.” Finally, in looking at whether the public interest will be served by a grant of injunctive relief, the appellees proffered that the public interest is not represented by the eight appellees in this matter, but, instead by the millions of Maryland voters who will use the Diebold DRE machines in the November 2004 elections. Thus, the public interest, the appellees argued, would be served by not allowing eleventh hour challenges to the elections process, which could result in changes that would undoubtedly cause much voter confusion.

Moreover, as they did below, the appellees asseverated that “it is not in the public interest to create a precedent where each dissatisfied voter or group of voters has the power to select their own voting system.” Nor is it in the public interest to replace a secure DRE voting system with a less secure paper option.

IV

As stated above, the assignments of error made in the case sub judice