It is shaping up to be a very interesting election year. In honor of the election theme, today is right after the Republican Nevada caucus with super Tuesday coming up next week, today’s case is a case out of the Fourth Circuit, National Federation of the Blind v. Lamone, which discusses whether the Maryland system for absentee ballots is not discriminatory against persons with disabilities in violation of title II of the ADA. As is my usual practice, I have divided the blog into several categories: facts, court’s reasoning (which is in turn divided into subcategories of: just what is the program, but it is not intentional discrimination, and the online tool was never certified); and takeaways. The reader is free to focus on any and/ or all of the categories.
The facts are really straightforward. Maryland allows any voter to vote by absentee ballot. A voter may obtain a blank hardcopy absentee ballot by mail, fax, or by downloading and printing one from the website. The hardcopy ballot must be marked by hand, sign, and return by email or hand delivery to the voter’s local election board. An absentee voter may designate an agent to pick up and deliver her ballot. Absentee voters may also have an individual of their choice assist them in him marking the ballot. Plaintiffs allege that marking a hardcopy ballot by hand without assistance is impossible for voters with various disabilities and accordingly, they were denied meaningful access to absentee voting. It turns out that a system had been developed where through the use of an online ballot marking tool, persons with disabilities were able to mark their ballots electronically. However, that system was never certified per Maryland state law and therefore, was never put into effect leaving the current Maryland absentee ballot program in place.
Before proceeding further, you see a lot of talk about early voting. Early voting is often done by absentee ballot, though it could also be done in person at various sites. In my situation, the early voting sites are not as close to me as the place where I normally vote on election day, and so I just vote on election day (and no I have not made up my mind yet for super TuesdayJ).
In concluding, as did the District Court below them, that plaintiffs were denied the benefits of a public service, program, or activity on the basis of their disability in violation of title II of the ADA, the Fourth Circuit reasoned as follows:
Just What Is the Program?
- Maryland’s proposed focus on voting in its entirety as the program involved effectively reads out much of the language of title II. That is, title II of the ADA not only applies to public programs, but it also applies to services, programs, or activities of a governmental entity. Further, title II not only prohibits exclusion from participation in a public program, but it also separately prohibits the denying of benefits of that program. Finally, title II separately prohibits discrimination by any public entity generally.
- The Supreme Court has cautioned against defining the scope of a public benefit in such a way so as to avoid questions of discriminatory effects. That is, the benefit itself cannot be defined in a way that effectively denies an otherwise qualified (Rehabilitation Act) or qualified (ADA) person with a disability meaningful access to which they are entitled. Accordingly, courts should proceed cautiously so as to avoid defining a public program so broadly that the real difficulties in accessing governmental services are overlooked.
- Maryland law specifically allows any voter to vote by absentee ballot. That is, absentee ballots are provided to the entire Maryland electorate at the option of each individual voter. Therefore, it is far more natural to view absentee voting, rather than the entire voting program, as being the appropriate focus for scrutiny when it comes to compliance with the ADA and the Rehabilitation Act.
- Applicable ADA implementing regulations also suggest that the proper focus is on the absentee ballots and not on general voting. In particular, 28 C.F.R. § 35.130, requires public entities to make certain reasonable modifications in the policy, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability. This particular regulation is clearly contemplating a focus on accessibility at a much more specific level (policies, practices, and procedures), than entire governmental programs. Therefore, the court felt it was quite clear that Maryland was obligated to provide a level of access to the voting program beyond the simple assurance that voters with disabilities were able to cast a ballot in some way, shape, or form.
But it is Not Intentional Discrimination
- The ADA goes beyond intentional exclusion when it comes to what it prohibits. That is, the ADA extends to the failure to make modification to existing facilities and practices. 28 C.F.R. § 35.130, mentioned immediately above, provides that a public entity, in providing any aid, benefit, or service, may not afford a qualified individual with a disability an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others or provide a qualified individual with a disability with an aid, benefit or service not as effective in affording equal opportunity to attain the same result. In fact, at the end of the opinion the court goes out of its way to say that the evidence is completely lacking that Maryland intentionally discriminated against voters with disabilities nor were there any indications that Maryland was manipulating the election apparatus intentionally to discriminate against persons with disabilities. Even so, the court noted that the ADA and the Rehabilitation Act do far more than simply providing a remedy for intentional discrimination. Instead, they reflect broad legislative consensus that making the promises of the Constitution a reality for individuals with disabilities requires well-intentioned public entities to make certain reasonable accommodations.
- The District Court found that it was clear that most voters may mark their absentee ballots without assistance. It also found that Maryland’s current absentee voting program does not allow disabled individuals such as plaintiff to mark their ballots without assistance. Accordingly, it is obvious that defendants have provided an aid, benefit, or service to persons with disabilities that is simply not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to read the same level of achievement as that provided to others.
- Defendant’s argument that persons with disabilities have no right to vote without assistance misses the point. The argument of the plaintiffs is that the defendants have provided such a benefit to voters without disabilities while denying that same benefit to voters with disabilities, which is precisely the sort of time the ADA is designed to prevent. The right to vote should not be contingent on the happenstance of others being available to help. Finally, requiring blind and visually impaired individuals the boat with the assistance of a third party, if they are to vote at all, at best provides such individuals with an inferior voting experience that is not equal to what is afforded to people without disabilities.
- Ensuring that disabled individuals are afforded an opportunity to participate in voting equal to that afforded others, helps ensure that those individuals are never relegated to a position of political powerlessness.
The Online Tool Was Never Certified
- The District Court found that the plaintiffs proposed modification of using the online ballot marking tool was both reasonably secure and reasonably accessible to voters with disabilities. From a review of the record as a whole, those findings were not clearly erroneous and therefore, need not be disturbed.
- A version of the online tool was voluntarily implemented by defendants in the 2012 election without any apparent incident. Accordingly, that speaks well of the reasonableness of using the tool. Finally, since the tool has already been developed, there doesn’t appear to be any substantial cost or implementation burden needing to be borne by Maryland to make the tool available for use.
- The argument of defendants that a state statutory requirement insulates public entities from making otherwise reasonable modification to prevent disability discrimination cannot be correct if the ADA is to mean anything. Under the supremacy clause of the United States Constitution federal legislation can preempt state laws. In fact, the Supreme Court has held that at least under certain circumstances, the ADA represents a valid exercise of 14th amendment powers and therefore, trumps state regulation conflicting with its requirements.
- Maryland never established that the use of the online ballot marking tool degrades the integrity of Maryland’s voting processes. Maryland is simply confusing the issue of whether a procedural requirement has been met with the underlying substantive purpose behind that requirement in the first place. That is, the question is whether the online marking tool without certification would be so at odds with the purpose of certification that the use of the online marking tool would be unreasonable. The court mentioned in a footnote that to hold otherwise, would be analogous to allowing a governmental entity to resist installation of wheelchair ramps for a new courthouse simply by enacting a law requiring that ramps be certified and then declining to certify any ramps. The District Court concluded, after a three-day been trial, that the tool was reasonably secure, safeguarded the privacy of voters with disabilities, and had been used in actual elections without apparent incident.
- The ADA extends beyond intentional discrimination. Intentional discrimination under title I is not a question of liability, but rather a question of damages. The same goes for title II of the ADA, though the standard there is deliberate indifference. Obviously, no damages would be forthcoming in this particular case, but it does not appear that such damages were asked for.
- This case does a nice job of illustrating how a major fight in these cases can be over how the program and its essential eligibility requirements are defined. That is an issue I have always talked about in my book and that discussion can be found in the latest edition of my book as well on pages 80-82. On this point, readers may also find this blog entry of mine useful as well. Note that the Rehabilitation Act applies to all of the operations of a governmental entity, which arguably goes further than the ADA (I say arguably because as the court notes here title II of the ADA extend to activities of a governmental entity, and I should point out that there is many a case saying that particular language matches up with the Rehabilitation Act language of applying to all operations of a governmental entity). However, the Rehabilitation Act does contain the solely by reason of disability causation language, which the ADA does not. In this case, that distinction is not an issue. There is also the equal benefits language of the ADA to contend with as well. So, even if a defendant goes the route of trying to define the program in a way that allows it to circumvent accommodating a person with a disability, the plaintiff is left with several options including but not limited to convincing the judge that the program should be defined more narrowly and using the equal benefit and activities language.