By Taylor Ey
Today, the Fourth Circuit issued its published opinion, affirming the district court’s decision in the civil case of National Federation of the Blind v. Lamone. This case arose under Maryland statutory law governing absentee voting, and Plaintiffs (The National Federation of the Blind and individual Maryland voters) alleged that the Maryland absentee voting process violates Title II of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act. Defendants were Linda Lamone, Maryland’s State Administrator of Elections, and the five members of Maryland’s State Board of Elections (Board).
After a three-day bench trial, the district court ruled in favor of Plaintiffs, and made three legal conclusions that were the subject of this appeal. There were three issues before the Fourth Circuit: (1) whether Plaintiffs were denied meaningful access to absentee voting in violation of the ADA and the Rehabilitation Act; (2) whether the online ballot marking tool (online tool) is a reasonable remedial modification; and (3) whether requiring Defendants to allow use of the online tool fundamentally alters Maryland’s voting process.
Plaintiffs Were Denied Meaningful Access to Absentee Voting
The first issue was whether Plaintiffs were denied benefits of a public service, program, or activity on the basis of their disability. In this case, Maryland state elections are a public activity within the meaning of the ADA and Rehabilitation Act. More specifically, Maryland offers its voters the opportunity to vote by absentee ballot. Marylanders may obtain an absentee ballot by mail, fax, or electronic download. The electronic download must be printed, marked by hand, and signed and returned in hardcopy. To facilitate the electronic absentee balloting process, Maryland has been developing an online ballot marking tool. The online tool was of particular interest to Plaintiffs who, because of their blindness, often need assistance to cast their votes in elections. The online tool has not been certified as is required under Maryland law, and thus cannot be used by disabled individuals such as Plaintiffs until it is certified, but it has been found to be a reasonably secure tool.
The Fourth Circuit concluded that the scope of the public program at question was Maryland’s absentee program, rejecting Defendants’ argument that the scope should include Maryland’s entire voting program. The Court reasoned that the Supreme Court has cautioned against defining the program in question too broadly as that practice will avoid the discriminatory effects, and because Maryland allows any voter to use absentee voting, it is reasonable to limit the scope to Maryland’s absentee voting program.
Additionally, the Court rejected Defendants’ argument that Plaintiffs have no right to vote without assistance. The ADA requires that Plaintiffs are provided “an opportunity to participate . . . equal to that afforded others.” See 28 C.F.R. § 35.130(b)(1)(ii) (providing guidance from the Attorney General and the Department of Justice to implement Title II’s mandate against discriminatory acts, whose power was specifically granted by Congress). Because voting is a fundamentally public activity, and Congress passed the ADA to protect disabled individuals from discrimination, Maryland failed to protect its citizens, Plaintiffs, from discrimination when it effectively required them to rely on others to vote by absentee ballot. Thus, the Fourth Circuit affirmed the district court’s conclusion that Plaintiffs were denied meaningful access to absentee voting.
The Online Tool Was a Reasonable Remedial Modification
Even though the ADA protects disabled individuals from discrimination based on their disability, the ADA does not go so far as to require a public entity to make unreasonable modifications to accommodate individuals. Therefore, plaintiffs must propose reasonable modifications to the challenged programs that will allow them meaningful access. In this case, Plaintiffs could point to the already developed online tool as a reasonable modification, if implemented, that would make absentee voting reasonably accessible. The district court found that this was a reasonable modification, and because the record supported its decision, the Fourth Circuit affirmed on that issue.
Requiring Defendants to Use the Online Tool Does Not Fundamentally Alter Maryland’s Voting Process
Finally, Defendants asserted a fundamental alteration defense. To prevail, Defendants had the burden to show that the requested modification, the online tool, would be a fundamental alteration to the program, absentee voting. Defendants argued that the certification process is fundamental to Maryland voting. However, the Court classified that argument as merely procedural, rather than substantive to voting, and it was not persuaded. The district court found that the online tool was reasonably secure and had been used without incident in previous elections (it was used in 2012 before the certification requirement was implemented). Thus, the Fourth Circuit did not disturb the district court’s conclusions on this issue because they were supported by the record as a whole.
The Fourth Circuit Affirmed the District Court
Because the record supported the conclusions of the district court on all three issues, the Fourth Circuit affirmed. The Court also noted that, although Maryland did not show any animus in denying its citizens meaningful access to absentee voting, the ADA does not require a showing of animus. Instead, the ADA seeks to provide broad protections for individuals with disabilities, and where individuals have been deprived of their right to participate, public entities will be required to make reasonable accommodations.