I was planning on another review of recent decisions in the ADA and FHA world but was struck by the number of recent decisions about voting and the ADA. They are a pleasant break from the usual run of ADA cases motivated by nothing but the greed of the plaintiffs’ bar, and while they may cause political disagreements they do illustrate some key issues under the ADA.
The limits of accessible technology and deciding what works well enough
Hernandez v. N.Y. State Board of Elections, 2020 WL 4731422 (S.D.N.Y. Aug. 14, 2020) illustrates a problem important to all ADA cases concerning accessible technology: what is accessible enough when no system is perfect? The dispute at the heart of Hernandez was how blind New Yorkers would vote on-line in the November 2020 election. The lawsuit is aimed at absentee voting by mail. Blind voters cannot mark a paper ballot without help, which deprives them of the confidentiality voters take for granted if only paper ballots are available for absentee voting. After the lawsuit was filed seeking an injunction for New York’s June 2020 elections the defendant agreed to require local election boards to send accessible .pdf ballots on request by any blind user. Those accessible .pdf files could be marked and returned by a blind voter using screen reader technology. This solution was accepted by the plaintiffs for the June 2020 election, but in advance of the November election they asked the court to require a Remote Accessible Vote-by-Mail (“RAVBM”) system that supposedly has various advantages over accessible .pdf ballots. The court declined to grant an injunction requiring the new system.
The problem, as described by the court, was that neither system was perfect, making it impossible to decide that an RAVBM system was likely to be found superior at trial. Of the eight plaintiffs one had trouble with the accessible .pdf file, but others had problems using the RAVBM system available in New York City. Three had problems applying for a ballot, but the process for applying for an absentee ballot was not at issue in the lawsuit. Returning a printed paper ballot was also a problem, but that problem applied to the .pdf solution and the RAVBM solution. This kind of problem is common with competing technologies in any area. As miraculous as computer based solutions seem to be for accessibility those solutions are no more perfect than the systems used by those who are not disabled and and competing systems may only be imperfect in different ways.
The problem faced by the court – deciding between two imperfect systems – says something about how web accessibility cases should be analyzed. The few cases that do not settle early seem to proceed on the theory that an accessible website is perfectly accessible, or at least perfectly meets the requirements of WCAG 2.00 AA or 2.1 AA. This is a standard that most websites do not meet for non-disabled users. Equal access – the fundamental standard of accessibility – cannot mean perfect access for those with disabilities when imperfect access is the standard for those without disabilities. This does not mean that any degree of imperfection is acceptable, but it does mean that imperfections should be judged by whether they deprive a user of effective access as opposed to perfect access.
The case also illustrates that you can’t make a complex system accessible if you don’t fix the whole system. In Hernandez the only issue was how ballots were actually marked in a way that maintained confidentiality. It did not consider whether the method of applying for a ballot was accessible or whether the method for returning the ballot was accessible. The ability to mark a ballot does not help if a disabled person can’t get a ballot in the first place, or has to rely on assistance from a non-disabled person to send it in.
In contrast to Hernandez, the Court in Drenth v. Boockvar, 2020 WL 4805621 (M.D. Pa. Aug. 18, 2020) found that an accessible absentee voting system implemented by the defendants was sufficiently accessible to justify summary judgment for the defense. In response to a suit making claims very similar to those in Hernandez the Commonwealth of Pennsylvania had begun, under the terms of an existing injunction, implementing an RAVBM system named “Democracy Live.”¹ The Court found that despite the plaintiffs’ claims that implementation was not yet complete and that problems could therefore arise there was no need for further relief, making the case moot.
One reason for the different outcomes – that is, the New York court merely leaving for trial the question of whether .pdf ballots were good enough, while the Pennsylvania found the system was good enough as a matter of law – may be because Pennsylvania adopted an RAVBM system. It seems more likely though that the plaintiffs simply took a different approach that didn’t argue for a particular choice of system, but only for continued supervision of its implementation.
These decisions are the most recent concerning technology and absentee voting, but they were not decided in a vacuum. In Natl. Fedn. of the Blind v. Lamone, 813 F.3d 494, 510 (4th Cir. 2016) the Fourth Circuit found that Maryland’s failure to implement an accessible absentee voting system violated the ADA because while voters who were not blind could mark their ballots in private those who were blind required assistance. A follow-up decision from the District Court in February of this year concerned the more difficult question of whether the ballot marking tool made available because of the 2016 decision should be the only tool used. The District Court denied a request for a preliminary injunction and the case is pending.
Hindel v. Husted, 2:15-cv-03061 in the Southern District of Ohio took a trip to the Sixth Circuit after an initial dismissal, was remanded for trial and then settled. At issue was accessible absentee voting, but I haven’t found the terms of the settlement and from the Ohio Secretary of State’s website it doesn’t appear there is any option other than a paper ballot.
In the meantime anyone interested in the status of online voting that may affect those with disabilities can find up-t0-date information at:
Voting absentee in the era of Covid-19
Democracy N. Carolina v. N. Carolina State Bd. of Elections, 2020 WL 4484063 (M.D.N.C. Aug. 4, 2020) looked at paper absentee ballots from a different angle. The disabled plaintiffs attacked a number of North Carolina voting laws that, they claimed, interfered with their ability to vote. The Court’s ruling should be read in its entirety, because the attack on the laws was comprehensive in terms of constitutional and due process challenges. The ADA claims were more limited, with only one blind plaintiff having standing under the ADA. The Court upheld his challenge to a law limiting those who could assist with absentee ballots to near relatives, guardians and special multipartisan assistance teams (MATs). The plaintiff was in a nursing home under lockdown due to Covid-19 and the only people who could have helped him – the staff of the nursing home – were forbidden to do so by law. The Court decided for the plaintiff, but only in a very limited way. He was entitled to relief under the ADA only with respect to the law forbidding staff members to help him fill out his ballot. The Court upheld a law that forbade staff members from witnessing his signature on the ballot on the theory that his difficulty in finding a witness was based on the lock-down status of the nursing home rather than his disability. This overlooks the fact that the witness was only stuck in a nursing home because of his disability. The Court also found, bizarrely, that there was no evidence the plaintiff was unable to return his ballot without assistance from the staff. Finally, the Court never addressed the plaintiffs’ request for an electronic absentee voting system. The Court’s view of what the blind can do without assistance might be flattering, but seems unrealistic.
In People First of Alabama v. Sec. of State for Alabama, 2020 WL 3478093 (11th Cir. June 25, 2020) the disabled plaintiffs won a very temporary victory. In People First the District Court found that rules requiring that absentee ballots be witnessed and that voters produce a photo ID when returning the ballot violated the ADA by depriving voters at high risk from Covid-19 of meaningful access to the voting process. While the appeal was decided based on the difficult to meet “abuse of discretion” standard the language of the Eleventh Circuit suggests they were in fundamental agreement with the District Court, for they wrote that: “Forcing a high-risk voter to choose between risking her health and life or abandoning her right to vote easily satisfies the “not readily accessible” requirement” of the ADA. One judge disagreed with most of the reasoning of the decision, and on July 2, 2020 the conservative majority on the Supreme Court entered the stay the Court of Appeals had denied. Merrill v. People First of Alabama, 2020 WL 3604049 (U.S. July 2, 2020). The order granting the stay was entered without explanation, but there appears to be a significant disagreement along party lines about whether the ADA protects those with disabilities from an increased risk of serious illness or death from a pandemic. While a decision from the Supreme Court in People First seems unlikely before the November 2020 election it appears likely the case will wind its way back up after a trial in the District Court. Whether the result will lead to any clarity is uncertain given the Supreme Court’s preference for narrow decisions on procedural grounds.
All of these cases involve complexities that can’t be discussed in the space available for this blog (or the time available for me to write it). It does seem interesting that in two states – New York and Maryland – disabled access litigation is focused on finding the best tools for those with disabilities to vote absentee while in North Carolina and Alabama the issue is whether those with disabilities will even be able to vote absentee with a traditional paper ballot. Progress toward a fully accessible voting system is far from uniform as is progress on many other fronts involving local and state government.
¹ The Pennsylvania court did not use the RAVBM acronym, referring instead to an “Accessible Write In Ballot” or AWIB system, which it contrasted to the “Uniformed and Overseas Citizens Absentee Voting Act” ballot (“UOCAVA”), and the Federal Write-In Absentee Ballot (“FWAB”). There is no discussion of the technical differences between these systems.