The National Federation of the Blind is suing the Maryland State Board of Elections over policy changes that allegedly have resulted in “two separate and unequal voting systems” for voters with disabilities and everyone else.
The lawsuit, filed in U.S. District Court in in Baltimore on Thursday, claims violations of the Americans with Disabilities Act and the Rehabilitation Act of 1973 and seeks a declaratory judgment and injunctive relief. The plaintiffs also include the local NFB affiliate and three registered Maryland voters who are blind.
Since 2016, the plaintiffs allege that the board has made hand-marking paper ballots “the default voting option in Maryland” but that voters with disabilities who cannot mark by hand are offered a voting machine that electronically marks and prints paper ballots.
The “ballot marking device” (BMD) ballots “differ in shape, size, and content from the hand-marked ballots” and are “readily distinguishable” from them, according to the complaint. Though at least two voters per precinct are supposed to use the BMD ballots, some polling places have had only one person use it, making their ballot distinct and destroying the secrecy of their vote.
“In addition, because the BMDs are a secondary, poorly used voting option, poll workers are not as familiar with how to operate them, sometimes even failing to plug them in before a voter requests to use one,” the complaint alleges. “Maryland’s use of dual voting systems, therefore, renders the lesser used system an inferior voting option for those who must use the BMD to vote independently.”
According to the complaint, between 2004 and 2016 all voters used the same electronic voting machines, which were equipped with accessibility features that allowed blind voters to use them. In 2007, legislation was enacted that required the board, beginning in 2010, to certify voting machines that would leave a paper trail and required voters with disabilities to have access to a BMD.
A 2013 opinion by the Maryland Office of the Attorney General warned that the board would violate the accessibility provision of the law unless it used one accessible system for all voters or required a portion of voters without disabilities to use BMDs, according to the complaint. The board required that a minimum of two voters use the BMDs at each precinct, but evidence showed this did not happen everywhere.
The Maryland affiliate of the NFB repeatedly asked the board, and later the legislature, to revisit election policies and procedures, cautioning that blind voters’ ballots would not be secret without changes, according to the complaint. The board since has raised the minimum number of voters required to use BMDs to five per precinct, but the plaintiffs express “little confidence” that this change will happen in 2020, based on the board’s history.
The three individual plaintiffs reported having issues voting every year since 2016, citing issues from inoperable BMDs at their polling places to unhelpful workers.
“Because of the Board’s consistent failure to adopt these or similar policies designed to create an integrated voting experience for voters with and without disabilities, the voting experiences of blind Maryland voters have deteriorated with the move to paper-based voting,” the complaint states.
The plaintiffs are represented by Jessica P. Weber and James T. Fetter of Brown, Goldstein & Levy LLP in Baltimore.
The case is The National Federation of the Blind Inc. et al. v. Linda H. Lamone et al., 1:19-cv-02228.