State elections board members unanimously approved a bylaw Thursday that restricts communication with groups in active litigation against election officials.

The emergency change follows published reports that Jim Shalleck, the vice chair of the board, and Diane Butler exchanged emails with a plaintiff in a lawsuit that is the subject of an appeal before the 4th U.S. Circuit Court of Appeals.

Yaakov “Jake” Weissmann, one of three Democrats on the five-member panel said he “was disturbed by some of the emails in the article” and felt moved to work on emergency changes to the bylaws that govern the board and the actions of members.

As originally proposed, the bylaw change barred board members from communicating with parties or organizations who have filed lawsuits against the board. Instead, communications would have to go through the attorney for the state board.

The provision, as drafted, also asked board members to avoid communicating with members of the public who are “representatives of organizations or named parties actively engaged in litigation against the board.”

That line was removed after Butler expressed concerns that the definition was open to interpretation and would make it difficult for board members to know who is a member of such a group.

“So how do we make sure that this doesn’t limit us, and how do we know who some of these members are?” Butler asked. “I think we were talking about some of these little integrity groups or something. I think they kind of just name them, and then they have people that show up or to their meetings or something. But I don’t know how we are going to know?”

Weissmann agreed to strike the last sentence of his proposed change, but indicated he is likely to rework it and try to bring it back at the board’s next meeting in December.

“I think it is more important that we get something on the books than not get something on the books because of concern over a couple words,” Weissmann said.

Board Chair Michael Summers said the change will improve transparency but does not carry the force of law. Summers said it would be up to each member to disclose these contacts.

“No one is saying you cannot speak to them,” he said. “It is a discretionary call on each member.”

The bylaw change follows a published report by The Baltimore Banner involving emails obtained and shared by American Oversight, an organization that describes itself as a government watchdog. The emails released show that Butler and Shalleck at times exchanged emails with Kate Sullivan, a Baltimore County resident and director of Maryland Election Integrity.

Sullivan is also party to a lawsuit against the Maryland State Board of Elections, in which Maryland Election Integrity alleged a half-dozen violations of state and federal election laws as well as the Maryland Public Information Act. The lawsuit claimed it found at least 79,392 voter registration violations that allegedly included duplicate registrations, “registrants with questionable inactive status,” and more than 40,000 with “instances of a questionable registration date.”

Additionally, the lawsuit alleged violations of the Help America Vote Act, citing voting system error rates. The lawsuit claims 62,075 “apparent voting system errors in counting votes” were found in the state’s 2020 general election, and another 27,623 similar errors in Maryland’s 2022 general election.

The lawsuit asked a federal judge to prevent the state from conducting the 2024 primary and general elections until the problems were corrected. It also asked the judge to require that the state adopt a specific voter registration system and appoint a special master to oversee the state board’s move to the new system.

A U.S. District Court judge threw out that lawsuit, which has since been appealed to the 4th Circuit. Oral arguments are scheduled for December before the appellate court.

Republican nominees to the state elections board, including Butler, have faced heightened scrutiny from Senate Democrats following the resignation of board member Carlos Ayala, who abruptly left his position following a federal indictment on charges connected to the Jan. 6 insurrection at the U.S. Capitol.

And while the email exchanges show Butler and Shalleck relaying discussions between themselves and Elections Administrator Jared DeMarinis, none show that either board member discussed the ongoing lawsuit.

During Thursday’s meeting, both Shalleck and Butler denied wrongdoing.

Butler called the article “partisan,” and called on Summers to issue a press release defending board members.

“The press can write what they want, but when they erroneously attack public service board members, the record needs to be corrected, because this has been very damaging for Jim and myself,” Butler said.

Shalleck said he was “very upset by that article.”

“The only reason I’m on this board is to participate and hopefully make these elections fair to all voters,” Shalleck said.

“I regret that there has been this controversy that has come up,” he said. “Certainly if any of the board members are upset about it, I certainly regret that. I would apologize if you think I did anything wrong, because I have the highest respect for the chairman and this board.”

The emails published this week are another example of Butler’s activities on behalf of so-called election integrity groups. She exchanged emails with Talbot County Sheriff Joseph Gamble regarding concerns about the number of Republican election judges in that county.

In an email response to Gamble obtained by Maryland Matters, Butler wrote that she has “been following this and sent information last week to the state director and the deputy director, as well as bringing this to the attention of the board at our board meeting last week. I followed up today with the board president and I have a call in to the Director.”

Those emails were also shared with Robyn Sachs of the Maryland Voter Integrity Group, along with Sullivan.

The emails obtained by American Oversight also showed that Shalleck passed on inquires related to false or debunked election fraud charges in other states.

During Thursday’s meeting, Shalleck expressed confidence in Maryland’s election system.

“My only goal on this board is to make sure that we have a fair, free election without fraud. And I’ve said it many times, yes, there are irregularities with people that have died that are on our (voter) rolls,” Shalleck said. “But I have never seen … nobody has said, ‘Hey, Shalleck, there’s fraud.’

“I’ve never had a complaint of a specific fraudulent act in my six years with Montgomery County and my six months here. You got it? Bring it. But I’ve never seen that in the elections in Maryland,” he said. “My experience is they are sound, secure, fair and without fraud. And I make that statement unequivocally, and I just hope we can get past this.”