Nat'l Fed'n of the Blind, Inc. v. Lamone

CourtUnited States District Courts. 4th Circuit. United States District Court (Maryland)
Citation438 F.Supp.3d 510
Docket NumberCivil Case No. SAG-19-2228
Parties The NATIONAL FEDERATION OF THE BLIND, INC., et al., Plaintiffs, v. Linda H. LAMONE, et al., Defendants.
Decision Date10 February 2020

Gregory P. Care, James T. Fetter, Jessica Paulie Weber, Brown Goldstein & Levy LLP, Baltimore, MD, for Plaintiffs.

Andrea William Trento, Office of the Attorney General, Baltimore, MD, for Defendants.

MEMORANDUM OPINION

Stephanie A. Gallagher, United States District Judge

Plaintiffs The National Federation of the Blind, Inc. ("NFB"), The National Federation of the Blind of Maryland, Inc. ("NFB-MD"), Joel Zimba ("Zimba"), Ruth Sager ("Sager"), and Marie Cobb ("Cobb") (collectively, "Plaintiffs") initiated this suit against Linda H. Lamone, the Administrator of the Maryland State Board of Elections, and other members of the Maryland Board of Elections (collectively, "the Board") on August 1, 2019. ECF 1. Plaintiffs seek a declaratory judgment that the Board's policy regarding the use of paper ballots, supplemented by the use of electronic ballot marking devices ("BMD" or "BMDs"), as the primary method of voting violates their rights under Title II of the Americans with Disabilities Act and section 504 of the Rehabilitation Act of 1973. Id. Plaintiffs also seek an injunction requiring the Board to implement a policy of having every in-person voter in Maryland use BMDs as the default method of voting. Id.

On September 3, 2019, the Board filed a Motion to Dismiss Plaintiffs' Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). ECF 17; ECF 18 (the Board's Memorandum in Support of its Motion to Dismiss) (collectively, "the Motion to Dismiss"). Plaintiffs timely opposed, ECF 20, and the Board timely replied, ECF 24.

On September 20, 2019, Plaintiffs filed a Motion for Preliminary Injunction, seeking an order requiring the Board to offer BMDs as the default voting option to all Maryland voters in time for the 2020 general election. ECF 21; ECF 21-1 (collectively, "the Injunction Motion"). The Board timely opposed. ECF 24. After conducting a conference call with the parties, the Court granted Plaintiffs' Motion for Leave to Take Expedited Discovery on the issues of the cost and feasibility of Plaintiffs' proposed injunctive relief. ECF 34. After the discovery period ended, Plaintiffs filed a Reply on December 23, 2019. ECF 46 (sealed); ECF 55 (redacted). The Board, with the Court's leave, filed a Surreply on January 9, 2020. ECF 52 (sealed); ECF 56 (redacted); see ECF 44 (granting the Board leave to file a Surreply).

The Court thereafter held a hearing on the Injunction Motion on January 17, 2020, at which the parties presented only legal argument. ECF 54. However, on February 7, 2020, Plaintiffs filed a Motion for Leave to File Supplemental Evidence, providing eleven additional declarations from voters that details their experiences voting during the February, 2020 special primary election in the Seventh Congressional District. ECF 57.

Given that the Motion to Dismiss raises the same substantive legal issues as the Injunction Motion, the Court finds that no hearing is necessary on the Motion to Dismiss. See Loc. R. 105.6 (D. Md. 2018). For the reasons that follow, the Motion to Dismiss will be denied, and the Injunction Motion will also be denied. Finally, because Plaintiffs' new evidence does not change the Court's view of Plaintiffs' request for preliminary injunctive relief, Plaintiffs' Motion for Leave to File Supplemental Evidence will be granted, without awaiting an opposition.

I. THE BOARD'S MOTION TO DISMISS
A. Facts Relevant to the Motion to Dismiss

The following facts are derived from Plaintiffs' Complaint, and all documents integral to the Complaint.1 See United States ex rel. Oberg v. Pa. Higher Educ. Assistance Agency , 745 F.3d 131, 136 (4th Cir. 2014) (quoting Philips v. Pitt Cty. Memorial Hosp. , 572 F.3d 176, 180 (4th Cir. 2009) ). All facts are accepted as true, and all reasonable inferences are drawn in Plaintiffs' favor. See, e.g. , E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc. , 637 F.3d 435, 440 (4th Cir. 2011).

The NFB is the oldest, and largest, organization of blind persons in the United States, acting as "a collective and representative voice on behalf of blind Americans and their families." ECF 1, ¶ 7. The NFB-MD is but one of the NFB's many affiliates. Id. ¶¶ 7, 10. Both the NFB and the NFB-MD have blind members who "wish to vote in person at their local precinct on the same terms as all other voters." Id. ¶ 7; see id. ¶ 10. Plaintiffs Joel Zimba, Ruth Sager, and Marie Cobb, blind members of both the NFB and NFB-MD, are all residents of, and registered to vote in, the State of Maryland. Id. ¶¶ 11-13.

The Board is an agency created, authorized, and existing under Maryland law. Id. ¶ 14. Its primary responsibilities include managing and supervising Maryland elections, and ensuring compliance with federal and state laws. Id. The Board's members – Defendants Linda H. Lamone, Michael R. Cogan, Patrick J. Hogan, William G. Voelp, Kelley A. Howells, and Malcolm L. Funn – are all appointed by Governor Hogan, with the advice and consent of the Maryland State Senate. Id. ¶¶ 14, 16-19. Ms. Lamone is the State Administrator of the Board, making her Maryland's chief election official. Id. ¶ 16. The Board receives federal financial assistance in carrying out its duties. Id. ¶ 15.

From 2004 to 2016, all Maryland voters utilized electronic voting machines to cast their ballots. Id. ¶ 20. In 2007, however, the Maryland Legislature enacted a law requiring the Board to certify voting machines that would leave a paper trail for elections occurring after January 1, 2010. Id. ¶ 21 (citing Md. Code Ann., Elec. Law § 9-102 (West 2019) ). The law requires that any machine the Board certifies must not force voters with disabilities to vote by a "segregated ballot." Id. In 2013, the Maryland Attorney General issued an opinion regarding the term "segregated ballot." Id. ¶ 22 (citing 98 Md. Op. Att'y Gen. 152 (Dec. 18, 2013)). The Attorney General opined that the Board had three options for certifying an elections system that would not result in disabled voters voting by a "segregated ballot": (1) require that all voters use accessible voting machines; (2) certify voting machines that print ballots that are identical to paper ballots that are marked by hand; or (3) certify voting machines that print ballots that are not identical to paper ballots that are marked by hand, "so long as [the Board] establishes polling-procedures to ensure that enough non-disabled voters will use the accessible system that the ballots of disabled voters cannot be identified as such." 98 Md. Op. Att'y Gen. at 166.

The Board chose the third option. Beginning in 2016, the Board implemented a policy making handwritten paper ballots the default voting method for Maryland voters. ECF 1, ¶ 3; see id. ¶ 23. For blind voters, the Board began leasing ExpressVote Ballot Marking Devices, or "BMDs," from the company Election System and Software ("ES&S"). Id. ¶ 23. The BMDs are voting machines that electronically mark, and then physically print, the voter's ballot. Id. Notably, the paper ballots that BMDs produce "differ in shape, size, and content from the hand-marked ballots," making them "readily distinguishable from hand-marked ballots." Id. Specifically, the BMD's paper ballot measures 4.5 by 14 inches, and only lists the choices the voter selected. Id. ¶ 24. Conversely, the paper ballot that voters fill in by hand measures 8.5 by 11 inches, and contains all contest selections, with corresponding bubbles for voters to fill in. Id.

To ensure that "the ballots of disabled voters cannot be identified," 98 Md. Op. Att'y Gen. at 166, the Board implemented a policy in 2016 requiring each precinct to have at least two voters use the BMD, ECF 1, ¶¶ 26-27. In the 2016 and 2018 primary and general elections, however, multiple precincts failed to comply with this policy. Id. ¶¶ 28, 30, 32. Between 22 to 40 precincts in each election only had one voter vote via BMD. Id. Further, in the 2018 general election, 66 precincts failed to have any voter use the BMD. Id. ¶ 32. Plaintiff Joel Zimba alleges that in the 2018 primary election, he was the only voter at his Baltimore City precinct to vote via BMD. Id. ¶ 37. He alleges that the poll workers at his precinct "recognize [him] when he comes to vote and even know him by name," thereby denying him the right to vote by secret ballot, because his ballot looks different from everyone else's. Id.

The other individual named Plaintiffs, Ruth Sager and Marie Cobb, allege additional shortcomings. Ms. Sager alleges that during the 2018 general election, she was not able to use a BMD at her Baltimore County precinct because "the poll workers informed her that the only BMD at the location was broken." Id. ¶ 39. Ms. Sager alleges that the poll workers told her to have her husband read and mark a paper ballot for her. Id. Uncomfortable with that proposal, Ms. Sager asked the poll worker to read and mark the paper ballot for her. Id. The poll worker attempted to do so, but had difficulty pronouncing certain names, and improperly read some numbers on the ballot. Id. After Ms. Sager, with the poll worker's help, finished filling out the ballot, the ballot scanner could not properly process it, requiring a second poll worker to fill out a new paper ballot for Ms. Sager. Id. In all, Ms. Sager spent approximately fifty minutes voting, "even though there was no line." Id.

Ms. Cobb "has had difficulty voting in every election since 2016." Id. ¶ 41. During the 2016 general election, a poll worker at Ms. Cobb's Baltimore County precinct had insufficient knowledge to help Ms. Cobb use the BMD, forcing Ms. Cobb to enlist the assistance of her thirteen-year-old granddaughter. Id. Her granddaughter discovered that the BMD was not even plugged in, despite the fact that Ms. Cobb went to vote in the afternoon. Id. Ms. Cobb had...

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