Nat'l Fed'n of the Blind v. Lamone
| Citation | 813 F.3d 494 |
| Decision Date | 09 February 2016 |
| Docket Number | No. 14–2001.,14–2001. |
| Parties | NATIONAL FEDERATION OF THE BLIND; Kenneth Capone; Melissa Riccobono; Janice Toothman, Plaintiffs–Appellees, v. Linda H. LAMONE, State Administrator, State Board of Elections, in her official capacity; David J. McManus, Jr., Chairman, State Board of Elections, in his official capacity; Bobbie S. Mack, Member, State Board of Elections, in her official capacity; Patrick J. Hogan, Member, State Board of Elections, in his official capacity; Michael R. Cogan, Member, State Board of Elections, in his official capacity; Kelly A. Howells, Member, State Board of Elections, in her official capacity, Defendants–Appellants, and American Council of the Blind of Maryland; Verifiedvoting.Org; Saveourvotes.Org; Cindy Labon; Charles Crawford; Jane Sheehan, Intervenors. Civil Rights Education and Enforcement Center; Maryland Disability Law Center ; Adapt Maryland; American Civil Liberties Union; Arc Maryland ; Arc of the United States; Association of Assistive Technology Act Programs ; Disability Law Center for Virginia; Disability Rights Advocates; Disability Rights Bar Association; Disability Rights Education & Defense Fund ; Disability Rights North Carolina; Freedom Center; Image Center for People with Disabilities; Independence Now ; Judge David L. Bazelon Center for Mental Health Law; League for People with Disabilities ; Maryland Developmental Disabilities Council; Maryland Disabilities Forum; National Association of the Deaf; National Disability Rights Network ; On our Own of Maryland; Paralyzed Veterans of America; People on the Go; Protection and Advocacy for People with Disabilities ; Southern Maryland Center for Independent Living ; United Spinal Association; West Virginia Advocates; United States of America, Amici Supporting Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (4th Circuit) |
ARGUED:Julia Doyle Bernhardt, Office of the Attorney General of Maryland, Baltimore, Maryland, for Appellants. Jessica Paulie Weber, Brown, Goldstein & Levy, LLP, Baltimore, Maryland, for Appellees. Thomas Evans Chandler, United States Department of Justice, Washington, D.C., for Amicus United States of America. ON BRIEF:Brian E. Frosh, Attorney General of Maryland, Office of the Attorney General of Maryland, Baltimore, Maryland, for Appellants. Daniel F. Goldstein, Brown, Goldstein & Levy, LLP, Baltimore, Maryland, for Appellees. Amy F. Robertson, Civil Rights Education and Enforcement Center, Denver, Colorado; Alyssa R. Fieo, Maryland Disability Law Center, Baltimore, Maryland, for Amici Civil Rights Education and Enforcement Center, Maryland Disability Law Center, ADAPT Maryland, American Civil Liberties Union, Arc Maryland, Arc of the United States, Association of Assistive Technology Act Programs, disAbility Law Center for Virginia, Disability Rights Advocates, Disability Rights Bar Association, Disability Rights Education & Defense Fund, Disability Rights North Carolina, Freedom Center, IMAGE Center for People with Disabilities, Independence Now, Judge David L. Bazelon Center for Mental Health Law, League for People with Disabilities, Maryland Developmental Disabilities Council, Maryland Disabilities Forum, National Association of the Deaf, National Disability Rights Network, On Our Own of Maryland, Paralyzed Veterans of America, People on the Go, Protection and Advocacy for People with Disabilities, Southern Maryland Center for Independent Living, United Spinal Association, and West Virginia Advocates. Vanita Gupta, Principal Deputy Assistant Attorney General, Mark L. Gross, Civil Rights Division, United States Department of Justice, Washington, D.C., for Amicus United States of America.
Before GREGORY, DUNCAN, and FLOYD, Circuit Judges.
Affirmed by published opinion. Judge FLOYD
wrote the opinion, in which Judge GREGORY and Judge DUNCAN joined.
, Circuit Judge:
Maryland allows any voter to vote via absentee ballot. A voter may obtain a blank hardcopy absentee ballot by mail, fax, or by downloading and printing one from a website. The hardcopy ballot must be marked by hand, signed, and returned via mail or hand-delivery to the voter's local election board.
The National Federation of the Blind and individual disabled Maryland voters sued state election officials under Title II of the Americans with Disabilities Act ("ADA") and Section 504 of the Rehabilitation Act. Plaintiffs allege that marking a hardcopy ballot by hand without assistance is impossible for voters with various disabilities, and that they have therefore been denied meaningful access to absentee voting. After a bench trial, the district court found that Maryland's program, as then structured, did not comport with ADA and Rehabilitation Act requirements. The district court further found that plaintiffs' proposed remedy—the use of an "online ballot marking tool" that would enable disabled voters to mark their ballots electronically—was a reasonable modification that did not fundamentally alter Maryland's absentee voting program. Defendant election officials now appeal all these aspects of the district court's decision. For the reasons below, we affirm.
Elections in the State of Maryland are overseen by the State Board of Elections ("Board"). Md.Code Ann., Elec. Law §§ 2–101
to 102 (Westlaw current through the 2015 Regular Session of the General Assembly) ("Elec. Law"). The Board is comprised of five members. Elec. Law § 2–101(a). The Board appoints a State Administrator of Elections who is designated as "the chief State election official" and tasked with administering Maryland's election apparatus. Id. § 2–103.
Maryland provides its voters with a number of different means to vote. Maryland has nearly 2,000 polling places at which a voter may cast a ballot on Election Day. The overwhelming majority of these polling places are accessible to physically disabled voters and are staffed with election judges trained in serving voters with disabilities. The polling place voting machines have a number of accessibility features designed to assist disabled voters in casting their ballots. Maryland's voting machines allow voters to magnify the font of the ballot, to alter the color contrast, and to position the interface screen such that voters can sit down while casting their ballots. The voting machines can also be programmed for nonvisual access by means of an audio ballot; when using the audio features a voter receives a headset and numeric keypad to navigate the ballot choices. Voters who desire assistance in marking their ballots may be assisted by an individual of their choosing or by an election judge (in the presence of an election judge of another political party). The voting machines are not compatible with some common personal accessibility devices such as refreshable Braille displays.
Maryland also allows voters to vote in person for an eight-day period before Election Day at sixty-four early voting polling stations. All of these early voting polling places are physically accessible.
Finally, any Maryland voter may vote by absentee ballot. A voter can obtain a ballot by mail, fax, or electronically by downloading a ballot from a website. A voter who electronically downloads an absentee ballot must print out the ballot in hardcopy, mark their choices by hand, and then sign and return the hardcopy ballot to their local board of elections. An absentee voter may designate an agent to pick up and deliver a ballot. Absentee voters may also have an individual of their choice assist them in hand marking the ballot.
Historically, as noted, an absentee voter who obtained an absentee ballot electronically needed to print out the blank ballot and mark their choices by hand on the printed hardcopy ballot. For several years, Maryland has been developing a piece of software referred to as an "online ballot marking tool." The tool can be used by absentee voters who choose to obtain their absentee ballots electronically; the tool enables voters to mark their choices electronically and then print out a completed ballot.1 When the ballot is printed, the voter's selections appear on a number of pages followed by a separate signature page. The voter must still sign the signature page and return the entire hardcopy ballot to the local board of elections. Only printed and signed ballots received by a local board of elections are counted in determining the result of an election.
Maryland's Board developed the online ballot marking tool over a number of years, including with the participation of plaintiff National Federation of the Blind. The Board has solicited feedback and implemented a number of usability and accessibility enhancements for disabled voters. The tool is not compatible with all computer browsers or operating systems, but does function properly with a variety of reasonably up-to-date products. Importantly for individuals with certain disabilities, the ability to use the tool on their own computers may enable them to use the personal assistive devices that they ordinarily use to interface with the computer, such as a refreshable Braille display, to mark their ballot choices.
An early, non-accessible version of the online ballot marking tool was available to absentee voters during Maryland's 2012 primary elections. Following the primary elections, a question arose as to whether the tool needed to be officially certified pursuant to Maryland Election Law Section 9–102
, which requires certification of any "voting system" prior to use. The Maryland Attorney General provided an opinion that the tool did not meet the statutory definition of a "voting system" and did not require certification. See Certification of Voting Systems Does Not Apply to Absentee–Ballot–Marking Wizard,97 Op. Md. Att'y Gen. 32 (2012). However, apparently due to lingering concerns over the status of the online ballot marking tool, the Board only made the tool available to certain overseas and military absentee voters for the 2012 general...
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