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Judge preserves blind voters’ ADA suit, declines to issue injunction

A federal judge last week denied a request by blind voters to mandate the use of accessible devices by all Maryland voters in 2020 elections, a change that could carry a $9.7 million price tag. However, the judge refused to dismiss the voters’ Americans with Disabilities Act lawsuit.

The state currently uses hand-marked paper ballots as the default voting option. Voters with disabilities are offered a machine that electronically marks and prints their ballots, which look different from the hand-marked paper ballots, according to court filings.

The National Federation of the Blind and a group of blind voters sued the Maryland State Board of Elections last year, calling the current set-up “two separate and unequal voting systems” because of repeated technical issues and lack of compliance with board policy that often results in long waits and lack of ballot secrecy for voters with vision impairments.

The plaintiffs asked a federal judge to declare that the system violates their rights and to issue a preliminary injunction requiring the board to have every voter use the electronic ballot marking devices (BMDs). The defendants moved to dismiss the lawsuit.

On Feb. 10, U.S. District Judge Stephanie A. Gallagher denied the plaintiffs’ request for an injunction and the board’s request for dismissal, allowing the lawsuit to proceed.

Gallagher found that the plaintiffs did not prove their case for a preliminary injunction, mostly because of the high cost and inconvenience of their suggested solution, which the board likely could not implement by the November general election, much less the upcoming primary.

Though the plaintiffs provided evidence that some blind voters had to sacrifice their ballot’s privacy as recently as the Feb. 4 special election in the 7th Congressional District, their proposed injunctive relief is not reasonable because the board does not have the tools to implement it and the cost would be prohibitive, according to Gallagher.

According to Gallagher, the parties engaged in limited discovery to determine cost estimates for moving to an all-BMD system. The most  significant element would be leasing additional devices at a cost of $9.7 million per year, which would be split between the state and local governments, according to Gallagher.

Despite evidence submitted to the court about continued problems at polling places during the special primary election this month, Gallagher said those instances were “insufficient for the Court, on the present record, to conclude that transitioning to an all-BMD voting system will have any significant benefit.”

Gallagher also commented on “the growing national concerns regarding the security of this country’s elections” and said though no parties have provided evidence about the security of BMDs, the General Assembly is the appropriate body to determine if the state should switch to an all-electronic system.

But Gallagher also denied the board’s motion to dismiss, finding that the plaintiffs had plausibly alleged an ADA violation and made a reasonable suggestion for a new policy: requiring all voters to use BMDs.

“While Plaintiffs’ proposed accommodation seeks to enact a significant change to the method by which Maryland voters cast their ballots on election day, and comes at a significant cost, requiring the Board to implement a policy of having all in-person voters use BMDs is plausibly reasonable,” Gallagher concluded.

Gallagher also found that the plaintiffs’ claims are not moot just because the board has implemented new policies for 2020 that seek to remedy the problems from the 2016 and 2018 elections. The new policies increase the minimum number of voters who must use BMDs, alters the language given to voters to present BMDs as a neutral alternative, increases training and authorizes the purchase of additional devices.

But the board “has not truly abandoned the voting procedures that Plaintiffs now challenge,” which is the use of paper ballots as the standard and BMDs as the accessible option, according to Gallagher.

The parties have until Friday to submit a proposed scheduling order for future proceedings.

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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