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Board of Elections, blind voters debate efficacy of policy changes

Maryland State Board of Elections officials are seeking the dismissal of a lawsuit by blind voters, arguing that the voters’ complaints of “two separate and unequal voting systems” have been addressed by a new policy for the 2020 election.

The lawsuit, filed last month in U.S. District Court in Baltimore, claims the board’s policies since 2016 violate the Americans with Disabilities Act and the Rehabilitation Act of 1973. The plaintiffs include the National Federation of the Blind, the local NFB affiliate and three registered Maryland voters who are blind.

The plaintiffs allege that the board made hand-marking paper ballots the default voting system but that voters with disabilities are offered the use of a machine that electronically marks and prints their ballots. These ballots are distinguishable from the hand-marked ballots, meaning that, if multiple people do not use them, the secrecy of a blind individual’s vote is destroyed, according to the lawsuit. Some poll workers are also not adequately trained on how to operate the machines, called ballot marking devices (BMD).

However, the board officials named in the suit contend that the complaints are rendered moot by the 2020 policy, which increases the minimum number of voters who must use BMDs at each precinct, alters the language given to voters to present BMDs as a neutral alternative, increases the training of poll workers and authorizes local boards to use additional BMDs.

“Here, the ‘allegedly wrongful behavior’ that occurred during the 2016 and 2018 elections cannot ‘reasonably be expected to recur’ in 2020, because the new BMD policy adopted by the State Board clearly remedies the circumstances under the prior policy that formed the basis for plaintiffs’ claims,” the defendants state in their motion to dismiss, filed Sept. 4.

The motion also argues that the lawsuit fails to state a claim that the plaintiffs were denied meaningful access to the right to vote privately and that claims arising from the 2016 election are barred by the statute of limitations in the Rehabilitation Act.

But in their opposition motion, filed Tuesday, the plaintiffs contend that the board’s “tinkering around the edges of its inherently flawed policy of separate voting systems is simply not good enough” given its “track record of failing to ensure an equal voting opportunity for blind voters on the ground.”

The plaintiffs acknowledge they are seeking “systemic relief” and argue it is necessary given the “persistent nature of the violations.” They also say the “recent, untested, minor changes” cannot be trusted to “effectively stop the pattern of civil rights violations that has plagued the last four Maryland elections.”

The three individual plaintiffs reported having issues voting every election since 2016, citing problems from inoperable BMDs to unhelpful workers.

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.

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