By Caitlin Whalan
On Election Day, a voter arrives at her designated polling place, the elementary school located a few miles from her home. Her husband helps her from the car and escorts her in, where there are lines of people anxiously waiting to cast their vote. Upon her arrival, she requests a voting machine with non-visual access. After waiting an hour and a half, a voting machine with non-visual access is finally available, and it is now her turn to vote. She slowly makes her way to the voting machine, using her cane to guide her. Once she is in front of the voting machine, the audio prompts begin, but the words get lost in the background noise, ricocheting from the bare gymnasium floor. She strains to hear the audio prompts emanating from the voting machine. She calls out for a poll worker to help replay the audio prompts. The poll worker comes over to her, but the poll worker is not well trained in accessibility features of the voting machine. After a few tries, he is able to replay the audio prompts, but cannot make them any louder. This time, she concentrates harder, trying to grasp every word of the audio prompt. Still, the noises of gymnasium roar like a freight train in the background. After another strained attempt, she finally completes her ballot, but leaves the gymnasium frustrated and unsure if she cast her vote the way she intended.
This is just a hypothetical example of specific difficulties that some disabled voters have experienced in the past while voting in Maryland. Other accounts reveal that until recently, under Maryland’s absentee ballot voting program, some individuals with disabilities were unable to vote privately and independently. Choosing to vote by absentee ballot required voters to mark their ballots by hand.
Maryland has since developed an online ballot marking tool that allows absentee voters to mark their ballots electronically. In order to print the ballot, the absentee voter’s computer sends the voter’s ballot to the Maryland Board of Elections’ server, which in turn sends a PDF version of the ballot back to the voter to print and subsequently submit. In the development of this new software, the Maryland Board of Elections specifically considered the usability and accessibility for disabled voters.
In 2013, the Maryland General Assembly passed the Improving Access to Voting Act, requiring the Maryland Board of Elections to certify the online ballot marking tool by a supermajority of the Board before making it available to absentee voters. The Board discussed the online ballot marking tool during their February 2014 and April 2014 meetings, but did not vote on certification of the system. In May 2014, the National Federation of the Blind and three Maryland voters with various disabilities sued Linda Lamone, the State Administrator of the Maryland Board of Elections, and the individual members of the Board for violation of Title II of the American with Disabilities Act and Section 504 of the Rehabilitation Act. The Plaintiffs alleged that they are unable to privately and independently participate in the State’s absentee ballot voting program. The Board finally voted on the certification during their July 2014 meeting; however, the certification failed to meet the required supermajority.
The case went forward in Maryland District Court, and in August 2014, a number of other Maryland voters with disabilities and three entities filed a Motion to Intervene. The three entities that moved to intervene were the American Council of the Blind of Maryland, Verified Voting.org, and SAVEourVotes.org. The Intervenors asserted claims against the Defendants including a claim for the violation of the ADA and Section 504 of the Rehabilitation Act, a claim for violation of the Equal Protection Clause of the Fourteenth Amendment, a claim for violation of the Substantive Due Process Clause of the Fourteenth Amendment, a claim for violation of Equal Protection Clause arising out of the state-created right to a secret ballot, and claim for violation of the First Amendment Right to Freedom of Speech. Contrary to the normal path of intervenors, these Intervenors argued that the Defendants violated their rights, but they sought the opposite relief of the Plaintiffs. The Intervenors set forth that the online ballot marking tool was not a reasonable modification under the ADA and Rehabilitation Act and they requested an injunction against any further certification and use of the online ballot marking tool. The Court allowed the Intervenors to participate in the litigation, but did not allow them to bring any independent claims against the Defendants. The Court limited the scope of the litigation to the claim for the violation of the ADA and Rehabilitation Act.
The Intervenors argued two main contentions against the online ballot marking tool. First, the system was not accessible to disabled voters. Second, the system posed security risks. The Court found that the online ballot marking tool was reasonably accessible to disabled individuals who had access to reasonably up-to-date software. The Court also found that the disabled voter’s selections on the ballot could be kept private, which was one of the Plaintiffs’ main interests. The Court did acknowledge that the system could potentially pose a security risk because the ballot is transferred to the Board’s server in order to print. The Court noted there is a risk if either the Board’s server or voter’s computer is hacked; however, experts indicated that the tool exhibits software independence and the risks are capable of mitigation. Therefore, the court found that the online ballot marking tool constituted a reasonable accommodation under the ADA.
A few weeks ago, the Maryland District Court reached a decision in this case, National Federation of the Blind v. Lamone, finding that the Board’s refusal to implement the system violated the federal Americans with Disabilities Act. The Court ordered the Board to make the online ballot marking tool available to the Plaintiffs for the 2014 general election. This ruling only allows absentee voters with disabilities to use the online ballot marking tool for this year’s election. The Maryland Attorney General filed an appeal with the 4th Circuit Court of Appeals on September 22, 2014, and has not requested a stay of the District Court’s ruling.