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Decided: February 9, 2016

The Fourth Circuit affirmed the district court’s ruling, which found that Maryland’s absentee voting program did not comport with ADA and Rehabilitation Act requirements, and 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.

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.  Plaintiffs, 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 alleged that marking a hardcopy ballot by hand without assistance was impossible for voters with various disabilities, and that they had therefore been denied meaningful access to absentee voting. Plaintiffs sought both a declaratory judgment to that effect as well as an injunction requiring state election officials to make an online ballot marking tool available for use starting with the 2014 general election. The district court found that the plaintiffs had established that they had been denied meaningful access to absentee voting in Maryland in violation of the ADA and the Rehabilitation Act, and thus entered a declaratory judgment to this effect.  The district court entered a permanent injunction prohibiting defendants from violating plaintiffs’ rights and requiring defendants to make an online ballot marking tool available to plaintiffs for the 2014 general election.

To show a violation of Title II of the ADA, one of the elements plaintiffs must show is that they were denied the benefits of a public service, program, or activity on the basis of their disability.  Plaintiffs argued that the proper way to define the scope of the program at issue was to focus on Maryland’s absentee voting program, while defendants argued that the scope should be defined broadly and the voting program should be looked at in its entirety, encompassing the various voting alternatives—including in-person voting—available to Maryland voters.  The Court found that it is far more natural to view absentee voting, rather than the entire voting program, as the appropriate object of scrutiny for compliance with the ADA and the Rehabilitation Act.  In determining whether absentee voting was accessible to disabled individuals as required by statute and implementing regulations, the Court found that Maryland’s absentee voting program does not provide disabled individuals an opportunity to participate equal to that afforded others.  The Court noted the importance of the policy behind such regulations.  Ensuring that disabled individuals are afforded an opportunity to participate in voting that is equal to that afforded others helps ensure that those individuals are never relegated to a position of political powerlessness.  By effectively requiring disabled individuals to rely on the assistance of others to vote absentee, defendants have not provided plaintiffs with meaningful access to Maryland’s absentee voting program.  Since an online ballot marking tool had already been developed by Maryland, the plaintiffs’ proposed use of the tool is a reasonable modification to Maryland’s absentee voting policies and procedures.  The Court further agreed with the district court that defendants have not met their burden to show that plaintiffs’ proposed modification—use of the online ballot marking tool—would fundamentally alter Maryland’s voting program.  The tool is reasonably secure, safeguards disabled voters’ privacy, and has been used in actual elections without apparent incident.

Accordingly, the Court affirmed the judgment of the district court.

Full Opinion

Katie E. Lowery