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4th Circuit: Maryland must implement tool for blind voters

Elections board previously determined online tool could not be assured safe from hacking

Maryland must implement an online ballot-marking tool to enable blind residents to vote privately and independently, a federal appeals court ruled Tuesday.

The state’s implementation of the tool is necessary for the state’s compliance with the federal Americans with Disabilities Act, the 4th U.S. Circuit Court of Appeals said in its 3-0 decision.

The 4th circuit rejected the state’s argument that by providing people to cast ballots at the direction of blind voters satisfies the ADA’s requirement that reasonable accommodations be made for disabled residents. The civil rights law requires that vision-impaired people be treated on a par with their non-impaired fellow voters, which the ballot-marking tool allows, the 4th Circuit said in affirming a U.S. district court judge’s decision.

“Voting is a quintessential public activity,” Judge Henry F. Floyd wrote for the court. “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. We affirm the district court’s conclusion that 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 abstentee voting program.”

The 4th Circuit also rejected Maryland’s argument that the courts should defer to the State Board of Elections’ conclusion, by a single vote in July 2014, that the marking tool was unworthy of certification because its security from computer hacking could not be assured. The appellate court said the federal law’s requirement that disabled residents be reasonably accommodated trumps state election board procedures which stand in the way.

“As an initial matter, the strong form of [the state’s] argument – that the mere fact of a state statutory requirement insulates public entities from making reasonable modifications to protect disability discrimination – cannot be correct,” Floyd wrote. “The Constitution’s Supremacy Clause establishes that valid federal legislation can preempt state laws.”

The 4th Circuit added that its decision should not be interpreted as impugning Maryland’s strong efforts to ensure the right to vote regardless of disability.

“Indeed, we recognize that Maryland’s decision to provide ‘no excuse’ absentee voting to all its citizens provides a benefit that is far from universal across the United States,” Floyd wrote.

“However, the ADA and the Rehabilitation Act [which also bars discrimination against the disabled] do more than simply provide a remedy for intentional discrimination,” Floyd added. “They reflect broad legislative consensus that making the promises of the Constitution a reality for individuals with disability may require even well-intentioned public entities to make certain reasonable accommodations. Our conclusions here are not driven by concern that defendants are manipulating the election apparatus intentionally to discriminate against the individuals with disabilities; our conclusions simply flow from the basic promise of equality in public services that animates the ADA.”

The Baltimore-based National Federation of the Blind, which brought suit against the State Board of Elections, hailed the court’s decision.

“The right to vote is a fundamental one, and equal access to this right cannot and must not be denied to blind Americans,” NFB President Mark A. Riccobono said in a statement. “Today’s ruling affirms that blind voters must have equal access to all methods of voting that are generally available to other voters, and that equal access means the ability to mark and cast our ballots privately and independently, without being forced to rely on assistance from others. This historic ruling protects the rights of the blind voters of Maryland, and sets the stage for full and equal access to voting by blind people across the nation.”

Maryland Attorney General Brian E. Frosh, through his spokesman David Nitkin, declined to comment on the decision.

NFB sued the elections board, saying it violated the Americans with Disabilities Act and the Rehabilitation Act by not providing the online ballot to visually impaired and physically disabled voters. The Office of the Maryland Attorney General responded that the online tool has not passed the board’s statutorily mandated certification procedure, due to the security concerns, and therefore is not an available accommodation required under the civil rights laws.

U.S. District Judge Richard D. Bennett ruled in 2014 that the refusal to provide the marking tool violated the ADA, prompting the state to seek review by the 4th Circuit.

Judge Roger L. Gregory and Allyson K. Duncan joined Floyd’s published opinion.

The case is National Federation of the Blind et al. v. Linda H. Lamone et al., No. 14-2001.