Disability Law Blog Essay

Accessible Voting in a Pandemic: A Review of Recent Cases

Editor’s Note: This piece is a part of our series celebrating the thirty-year anniversary of the Americans with Disabilities Act (ADA).

2020 was a historic year for voting. Record-breaking voter turnout was challenged by a deadly pandemic that forced people to remain in their homes. Voters turned to absentee voting in droves and states accommodated them by improving their absentee voting processes. But the needs of one group of voters were largely ignored by states as they pivoted to absentee voting: people with disabilities.

People with “print disabilities”—including those who are blind or low-vision and those with manual dexterity disabilities, some learning disabilities, and cognitive disabilities—often cannot read and mark a paper ballot. The Americans with Disabilities Act (ADA) and Help America Vote Act (HAVA) have long required states to provide accessible voting or ballot-marking machines at their polling places. Many people with these disabilities already use assistive technology, such as screen reader software, magnification software, refreshable Braille displays, speech-to-text software, and keyboard navigation to read, navigate, and fill in other print documents. But the documents must be delivered electronically (e.g., online or by email in Word or PDF format) and must be formatted accessibly to work with assistive technology (e.g., in accordance with Web Content Accessibility Guidelines).

Several years ago, the National Federation of the Blind, working with my law firm, established that absentee voting is required to be accessible under the ADA in National Federation of the Blind v. Lamone, 813 F.3d 494 (4th Cir. 2016). The Fourth Circuit found that, because Maryland offered nondisabled voters multiple different ways to vote—i.e., in-person Election Day voting, early voting, and absentee voting—it was required to ensure that all those methods of voting were accessible to people with disabilities. It was not enough for Maryland to make only one of its methods of voting (i.e., in-person Election Day voting) accessible. To be accessible, the court found, absentee voting must allow voters with disabilities to vote privately and independently, as nondisabled voters do.  Because technology was readily available to deliver and mark accessible electronic absentee ballots independently, Maryland had to make that technology available to voters with disabilities. Finally, the fact that Maryland had not formally certified the technology under state law did not insulate it from liability under the federal ADA, pursuant to the Supremacy Clause. A mere procedural requirement, in the absence of a substantive violation of state law, could not satisfy the state’s burden to show that using the accessible technology would fundamentally alter its voting program.

The Sixth Circuit followed suit in 2017 in Hindel v. Husted, 875 F.3d 344 (6th Cir. 2017). Anxious to ensure its members could vote absentee in 2020, the National Federation of the Blind wrote to every state’s Secretary of State in 2019, reminding them of the requirement to make their absentee ballots accessible. States had several potential options for making their absentee ballots accessible, including professional remote accessible vote-by-mail systems, accessible html-format ballots, and accessible PDF-format ballots.   Yet, even when the pandemic shifted elections toward absentee voting, as people would have to risk their health to vote in person, most states had taken no action.

In 2020, disability rights organizations and their members were forced to file suit against over ten states because their absentee voting systems were not accessible as the November Presidential Election approached. These included:

Some states, such as Florida, Michigan, Maine, and Virginia, agreed to purchase or develop accessible absentee ballots in time for the November Election and reached full or partial settlement agreements. Others, including Pennsylvania, Massachusetts, New York, New Hampshire, Texas, and North Carolina, went to hearings on Plaintiffs’ preliminary injunction motions. In each case except Texas, where the court did not decide the motion before the November election, resulting in the case’s dismissal—the state eventually provided an accessible absentee ballot system in time for the November election.

In many of these cases, the states argued, in one way or another, that there was too little time before the November Election for them to make their absentee voting systems accessible and ensure the systems were secure. In Taliaferro v. North Carolina State Bd. of Elections, which was decided just 40 days before the November Election, the district court granted Plaintiffs’ preliminary injunction. The state argued that the balance of the equities weighed against requiring the state to implement accessible absentee voting by the November Election because it would cause the state hardship. The court explained:

“First factoring into the Court’s consideration of the equities is the fact that defendants have been aware of plaintiffs’ concerns and demands regarding North Carolina’s inaccessible absentee voting program since at least June 26, 2020, but have failed to address them.” Second, the court found that North Carolina’s absentee voting system could be made accessible in five weeks or less. Finally, the court found that the state’s concerns about ballot security did not outweigh plaintiffs’ right to vote privately and independently. The court noted that “there is no method of voting that is entirely free from security concerns,” expert testimony found the risk of hacking was low, and a similar system was already offered (although not accessibly) to military and overseas voters.

Finally, the court rejected the notion that the votes of people with disabilities were not worth the effort, saying “[i]t bears noting that there is no evidence in this record which would accurately demonstrate how many blind voters might actually use the [accessible] absentee voting portal if it is made available to them. But the ADA does not require a mandate that certain individuals participate in public programs in a particular way. Rather, its focus is on providing reasonable accommodations so that disabled individuals may fully participate should they so choose.” An issue that remains open and has not been decided by any of the courts so far is the question of whether voters with print disabilities must be provided an option for returning their marked absentee ballots that does not require printing and mailing a paper copy of the ballot. For people with disabilities that prevent them from reading, writing, or manipulating printed materials, it is ironic that states require them to purchase a printer in order to be able to vote, particularly when astronauts on the International Space Station were able to vote electronically.