NFB seeks pre-primary access to ballot-marking system

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Advocates for blind and physically disabled Marylanders will urge a federal judge Wednesday to order the State Board of Elections to provide an online system that would enable them to cast absentee ballots in private for the June 24 primary election.

In papers filed at U.S. District Court in Baltimore, the National Federation of the Blind states that the board has declined to approve the technology, in violation of the federal Americans with Disabilities Act and Section 504 of the federal Rehabilitation Act. The Office of the Maryland Attorney General responds that the system has not passed the board’s certification procedure for use in elections, as required by state law, and therefore is not an available accommodation required under the disability-rights laws.

The two sides will present arguments before Judge Richard D. Bennett.

With the primary election just two weeks away and a full hearing on their claims not yet scheduled, the NFB seeks a preliminary injunction. The suit was filed after the Board of Elections voted on April 24 to reject the technology.

The ballot-marking system allows a user to obtain an absentee ballot over the Internet, mark it and print it out, then mail it back to the Board of Elections.

The system enables people with visual and physical disabilities to “cast a ballot the way you and I do without a second thought,” Daniel F. Goldstein, the NFB’s attorney, said Tuesday. It gives them “the opportunity to be private, the opportunity to be independent” in casting their vote, he added.

Opponents, however, claim the system is not secure and could allow widespread fraud.

To issue a preliminary injunction, Bennett would have to conclude that the plaintiffs are likely to prevail at trial and that they would face “irreparable harm” if the tool is not available for the primary. In addition to the NFB, Goldstein represents two blind voters — Melissa Riccobono and Janice Toothman — and Kenneth Capone, who cannot move his arms or legs due to cerebral palsy but can operate a computer using a head stick.

“If the court does not grant a preliminary injunction and the board is not required to make the online ballot marker tool available for the June primary elections, Mr. Capone will not be able to cast his vote privately and independently, and Ms. Riccobono and Ms. Toothman will have to choose between sacrificing their privacy and independence and voting through a method that is not as effective for them,” Goldstein wrote in the motion for a preliminary injunction.

“No amount of monetary relief can compensate for not being able to cast one’s vote effectively, privately and independently,” added Goldstein, who was joined in the motion by attorney Jessica P. Weber. “Granting injunctive relief in this case promotes the right to vote, is consistent with the antidiscrimination mandates of the ADA and Section 504, and thus serves the public interest.”

Goldstein and Weber are with Brown Goldstein Levy LLP in Baltimore.

‘Meaningful access’

The state countered that rejecting the system does not violate federal laws because disabled voters have “meaningful access” to voting in Maryland. This access includes the opportunity to cast ballots before Primary Day through early voting, and the right to assistance in receiving, marking and returning ballots either at the polling place or as an absentee voter, Attorney General Douglas F. Gansler wrote in papers opposing the motion.

“Federal courts … have held that alleging an inability to vote without assistance does not state a claim of discrimination under the ADA,” added Gansler, who was joined in the motion by Assistant Attorneys General Julia Doyle Bernhardt and Dan Friedman.

“Similarly, federal and state courts have held that casting a ballot with assistance is not inconsistent with state constitutional requirements that all votes be cast in secret,” Gansler wrote. “Here, Maryland has made voting readily accessible to voters with disabilities by providing several acceptable and legally sufficient ways to cast ballots and thus the plaintiffs cannot show that they have been ‘excluded’ from voting.”

The board permitted the tool to be used in the 2012 election by Marylanders serving outside the state in the U.S. armed services. However, it did not contain accessibility features for voters with disabilities, according to the attorney general’s brief.