National Fed of the Blind v. Linda Lamone

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 1:14-cv-01631-RDB. [999751939]. [14-2001]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-2001

NATIONAL FEDERATION OF THE BLIND; KENNETH CAPONE; MELISSA
RICCOBONO; JANICE TOOTHMAN,
Plaintiffs - Appellees,
v.
LINDA H. LAMONE, State Administrator, State Board of
Elections, in her official capacity; DAVID J. MCMANUS, JR.,
Chairman, State Board of Elections, in his official
capacity; BOBBIE S. MACK, Member, State Board of Elections,
in her official capacity; PATRICK J. HOGAN, Member, State
Board of Elections, in his official capacity; MICHAEL R.
COGAN, Member, State Board of Elections, in his official
capacity;
KELLY
A.
HOWELLS,
Member,
State
Board
of
Elections, in her official capacity,
Defendants – Appellants,
and
AMERICAN
COUNCIL
OF
THE
BLIND
OF
MARYLAND;
VERIFIEDVOTING.ORG; SAVEOURVOTES.ORG; CINDY LABON; CHARLES
CRAWFORD; JANE SHEEHAN,
Intervenors.
-------------------------CIVIL RIGHTS EDUCATION AND ENFORCEMENT CENTER; MARYLAND
DISABILITY LAW CENTER; ADAPT MARYLAND; AMERICAN CIVIL
LIBERTIES UNION; ARC MARYLAND; ARC OF THE UNITED STATES;
ASSOCIATION OF ASSISTIVE TECHNOLOGY ACT PROGRAMS; DISABILITY
LAW CENTER FOR VIRGINIA; DISABILITY RIGHTS ADVOCATES;
DISABILITY
RIGHTS
BAR
ASSOCIATION;
DISABILITY
RIGHTS
EDUCATION & DEFENSE FUND; DISABILITY RIGHTS NORTH CAROLINA;
FREEDOM CENTER; IMAGE CENTER FOR PEOPLE WITH DISABILITIES;
INDEPENDENCE NOW; JUDGE DAVID L. BAZELON CENTER FOR MENTAL

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HEALTH LAW; LEAGUE FOR PEOPLE WITH DISABILITIES; MARYLAND
DEVELOPMENTAL DISABILITIES COUNCIL; MARYLAND DISABILITIES
FORUM; NATIONAL ASSOCIATION OF THE DEAF; NATIONAL DISABILITY
RIGHTS NETWORK; ON OUR OWN OF MARYLAND; PARALYZED VETERANS
OF AMERICA; PEOPLE ON THE GO; PROTECTION AND ADVOCACY FOR
PEOPLE WITH DISABILITIES; SOUTHERN MARYLAND CENTER FOR
INDEPENDENT LIVING; UNITED SPINAL ASSOCIATION; WEST VIRGINIA
ADVOCATES; UNITED STATES OF AMERICA,
Amici Supporting Appellees.

Appeal from the United States District Court for the District of
Maryland, at Baltimore.
Richard D. Bennett, District Judge.
(1:14-cv-01631-RDB)

Argued:

October 28, 2015

Decided:

February 9, 2016

Before GREGORY, DUNCAN, and FLOYD, Circuit Judges.

Affirmed by published opinion.
Judge Floyd wrote the opinion,
in which Judge Gregory and Judge Duncan joined.

ARGUED: Julia Doyle Bernhardt, OFFICE OF THE ATTORNEY GENERAL OF
MARYLAND, Baltimore, Maryland, for Appellants.
Jessica Paulie
Weber, BROWN, GOLDSTEIN & LEVY, LLP, Baltimore, Maryland, for
Appellees.
Thomas Evans Chandler, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Amicus United States of America.
ON BRIEF: Brian E. Frosh, Attorney General of Maryland, OFFICE
OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for
Appellants. Daniel F. Goldstein, BROWN, GOLDSTEIN & LEVY, LLP,
Baltimore, Maryland, for Appellees.
Amy F. Robertson, CIVIL
RIGHTS EDUCATION AND ENFORCEMENT CENTER, Denver, Colorado;
Alyssa R. Fieo, MARYLAND DISABILITY LAW CENTER, Baltimore,
Maryland, for Amici Civil Rights Education and Enforcement
Center, Maryland Disability Law Center, ADAPT Maryland, American
Civil Liberties Union, Arc Maryland, Arc of the United States,
Association of Assistive Technology Act Programs, disAbility Law
Center for Virginia, Disability Rights Advocates, Disability
Rights Bar Association, Disability Rights Education & Defense
Fund, Disability Rights North Carolina, Freedom Center, IMAGE
Center for People with Disabilities, Independence Now, Judge
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David L. Bazelon Center for Mental Health Law, League for People
with Disabilities, Maryland Developmental Disabilities Council,
Maryland Disabilities Forum, National Association of the Deaf,
National Disability Rights Network, On Our Own of Maryland,
Paralyzed Veterans of America, People on the Go, Protection and
Advocacy for People with Disabilities, Southern Maryland Center
for Independent Living, United Spinal Association, and West
Virginia Advocates.
Vanita Gupta, Principal Deputy Assistant
Attorney General, Mark L. Gross, Civil Rights Division, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Amicus
United States of America.

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FLOYD, Circuit Judge:
Maryland allows any voter to vote via absentee ballot.

A

voter may obtain a blank hardcopy absentee ballot by mail, fax,
or by downloading and printing one from a website.

The hardcopy

ballot must be marked by hand, signed, and returned via mail or
hand-delivery to the voter’s local election board.
The
disabled
Title

National

Federation

Maryland

II

of

the

voters

of

sued

Americans

the

state

with

election

Disabilities

Section 504 of the Rehabilitation Act.
marking

a

hardcopy

ballot

by

Blind

hand

and

individual

officials
Act

under

(“ADA”)

and

Plaintiffs allege that
without

assistance

is

impossible for voters with various disabilities, and that they
have therefore been denied meaningful access to absentee voting.
After a bench trial, the district court found that Maryland’s
program,

as

then

Rehabilitation

Act

structured,

did

requirements.

not
The

comport
district

with
court

ADA

and

further

found that plaintiffs’ proposed remedy—the use of an “online
ballot marking tool” that would enable disabled voters to mark
their ballots electronically—was a reasonable modification that
did not fundamentally alter Maryland’s absentee voting program.
Defendant election officials now appeal all these aspects of the
district court’s decision.

For the reasons below, we affirm.

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I.
A.
Elections

in

the

State

of

Maryland

State Board of Elections (“Board”).
§§ 2-101

to

102

(Westlaw

current

are

overseen

the

Md. Code Ann., Elec. Law
through

the

2015

Session of the General Assembly) (“Elec. Law”).
comprised of five members.

by

Regular

The Board is

Elec. Law § 2-101(a).

The Board

appoints a State Administrator of Elections who is designated as
“the

chief

State

election

official”

and

administering Maryland’s election apparatus.

tasked

with

Id. § 2-103.

Maryland provides its voters with a number of different
means to vote.
which

a

voter

Maryland has nearly 2,000 polling places at
may

cast

a

ballot

on

Election

Day.

The

overwhelming majority of these polling places are accessible to
physically disabled voters and are staffed with election judges
trained in serving voters with disabilities.

The polling place

voting machines have a number of accessibility features designed
to assist disabled voters in casting their ballots.

Maryland’s

voting machines allow voters to magnify the font of the ballot,
to

alter

screen

the

such

ballots.

color
that

contrast,

voters

and

to

sit

down

can

position
while

the

interface

casting

their

The voting machines can also be programed for non-

visual access by means of an audio ballot; when using the audio
features

a

voter

receives

a

headset
5

and

numeric

keypad

to

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navigate the ballot choices.

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Voters who desire assistance in

marking their ballots may be assisted by an individual of their
choosing or by an election judge (in the presence of an election
judge of another political party).

The voting machines are not

compatible with some common personal accessibility devices such
as refreshable Braille displays.
Maryland also allows voters to vote in person for an eightday

period

before

polling stations.

Election

Day

at

sixty-four

early

voting

All of these early voting polling places are

physically accessible.
Finally, any Maryland voter may vote by absentee ballot.

A

voter can obtain a ballot by mail, fax, or electronically by
downloading a ballot from a website.

A voter who electronically

downloads

print

an

absentee

ballot

must

out

the

ballot

in

hardcopy, mark their choices by hand, and then sign and return
the

hardcopy

ballot

to

their

local

board

of

elections.

An

absentee voter may designate an agent to pick up and deliver a
ballot.

Absentee voters may also have an individual of their

choice assist them in hand marking the ballot.

B.
Historically, as noted, an absentee voter who obtained an
absentee ballot electronically needed to print out the blank
ballot and mark their choices by hand on the printed hardcopy
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For several years, Maryland has been developing a piece

of software referred to as an “online ballot marking tool.”

The

tool can be used by absentee voters who choose to obtain their
absentee ballots electronically; the tool enables voters to mark
their

choices

ballot. 1

electronically

and

then

print

out

a

completed

When the ballot is printed, the voter’s selections

appear on a number of pages followed by a separate signature
page.
the

The voter must still sign the signature page and return

entire

hardcopy

ballot

to

the

local

board

of

elections.

Only printed and signed ballots received by a local board of
elections are counted in determining the result of an election.
Maryland’s Board developed the online ballot marking tool
over

a

number

plaintiff

of

National

years,

including

Federation

of

with

the

the

Blind.

participation
The

Board

of
has

solicited feedback and implemented a number of usability and
accessibility enhancements for disabled voters.

The tool is not

compatible with all computer browsers or operating systems, but
does function properly with a variety of reasonably up-to-date
products.

Importantly

for

1

individuals

with

certain

The tool provides the voter an interface program on the
computer they are using.
Voters mark their ballots using the
computer program and are then presented with a review screen
that allows voters to verify that their selections are accurate.
When a voter confirms the selections, the computer transmits the
information to the state election board’s computer server. The
server generates a marked ballot in the form of a PDF file,
which the voter can then print out.
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disabilities, the ability to use the tool on their own computers
may enable them to use the personal assistive devices that they
ordinarily

use

to

interface

with

the

computer,

such

as

a

refreshable Braille display, to mark their ballot choices.

C.
An

early,

non-accessible

version

of

the

online

ballot

marking tool was available to absentee voters during Maryland’s
2012

primary

elections.

Following

the

primary

elections,

a

question arose as to whether the tool needed to be officially
certified pursuant to Maryland Election Law Section 9-102, which
requires certification of any “voting system” prior to use.

The

Maryland Attorney General provided an opinion that the tool did
not meet the statutory definition of a “voting system” and did
not require certification.

See Certification of Voting Systems

Does Not Apply to Absentee-Ballot-Marking Wizard, 97 Op. Md.
Att’y

Gen.

32

(2012).

However,

apparently

due

to

lingering

concerns over the status of the online ballot marking tool, the
Board

only

made

the

tool

available

to

certain

overseas

military absentee voters for the 2012 general election.
the

tool

in

the

2012

primary

and

general

and

Use of

elections

was

apparently uneventful.
The

Maryland

General

status of the tool.

Assembly

subsequently

clarified

the

In 2013, the General Assembly passed the
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“Improving Access to Voting Act,” 2013 Md. Laws Ch. 157, which,
among other things, explicitly required the Board to certify any
online ballot marking tool prior to use by voters.
(codified at Elec. Law § 9-308.1).
supermajority:

See id.

Certification requires a

at least four of the five members of the Board

must vote in favor of certification.

See Elec. Law § 2-102(c).

The Board continued to make improvements to the version of
the tool that had been used in the 2012 election cycle.

In

particular, the Board implemented certain changes to make the
tool more accessible to voters with disabilities.

Additionally,

in accordance with the 2013 Improving Access to Voting Act, the
Board hired an independent consultant, Unatek Inc. (“Unatek”),
to perform security testing on the tool.

Unatek produced a

report in December 2013 concluding that use of the tool was
secure.
In February 2014, the Board met and discussed the online
ballot

marking

tool.

The

Board

reviewed

the

December

Unatek report and interviewed the report’s author.

2013

Some Board

members continued to express concerns about the security of the
tool, and the Board did not hold a certification vote.
The

Board

consultant,

subsequently

Mainstay

Enterprises,

the Unatek security report.
Unatek’s

security

hired

a

Inc.

second

independent

(“Mainstay”),

to

audit

The Mainstay audit concluded that

assessment

had
9

followed

industry

best

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The Board also received and reviewed public comments

and had Board staff obtain information on the use of similar
ballot marking tools in other states.
The certification issue was again discussed at the Board’s
April 2014 meeting.

At the meeting, Mainstay briefed the Board

on the results of its audit.

Some Board members continued to

express concerns about certification and the Board did not take
a certification vote.

D.
On May 19, 2014, plaintiffs sued Linda Lamone, Maryland’s
State Administrator of Elections, and the five Board members,
all in their official capacities.

At the heart of plaintiffs’

suit are claims that Maryland’s absentee voting process violates
the ADA and the Rehabilitation Act.

Plaintiffs sought both a

declaratory judgment to that effect as well as an injunction
requiring state election officials to make the online ballot
marking tool available for use starting with the 2014 general
election. 2

The district court subsequently scheduled a bench

trial to begin on August 13, 2014.

2

The schedule would provide

Plaintiffs also sought a preliminary injunction requiring
election officials to make the tool available for the June 24,
2014 primary election.
The district court held a hearing on
June 11, 2014, and ultimately denied plaintiffs’ request.
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defendants with sufficient time to implement the tool before the
2014 general election in the event that plaintiffs prevailed.
While the suit was pending, the Board held a speciallyscheduled
absent.
certify

meeting

on

July

10,

2014,

with

one

Board

member

The four Board members in attendance voted 3 to 1 to
the

online

ballot

marking

tool.

The

vote

did

not

satisfy the statutory supermajority requirement and the tool was
not certified.
The district court held a three-day bench trial beginning
on August 13, 2014. 3

The district court heard testimony on:

3

the

On August 1, 2014, less than two weeks before trial,
several individuals and entities who were similarly situated to
plaintiffs here filed a motion to intervene in the case.
The
putative intervenors asserted similar ADA and Rehabilitation Act
claims, along with additional claims against Maryland state
officials
under
18 U.S.C. § 1983
for
various
alleged
constitutional violations. The putative intervenors argued that
their rights had been violated in ways substantially similar to
plaintiffs, but sought an almost diametrically opposed remedy—an
injunction barring certification of the online ballot marking
tool.
Very broadly, the putative intervenors appeared to be
concerned that the tool plaintiffs sought to require Maryland to
use was not sufficiently accessible to disabled voters.
The district court held a conference with all parties and
the putative intervenors on August 8, 2014. With the agreement
of the parties, the district court held the motion sub curia and
permitted the putative intervenors to participate in the trial.
In its memorandum opinion in this case, the district court
ultimately granted the motion to the extent of the intervenors’
participation up to and through trial, and considered the
intervenors’ evidence and legal arguments in reaching its
decision; the district court denied the motion to the extent the
intervenors sought to assert independent claims against the
defendants.
It does not appear that either the parties or the
(Continued)
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difficulties disabled voters have experienced while voting; the
Board’s development of the online ballot marking tool and the
Board’s

deliberation

over

certification;

the

accessibility

of

the tool for disabled voters; and the security risks posed by
the tool.
The district court found that “the evidence demonstrated
specific difficulties that some disabled voters have experienced
while voting,” J.A. 1043, and that “under the current absentee
ballot
those

voting
of

program,

the

independently.”
results

of

a

individuals

Plaintiffs
J.A. 1044.

University

with

cannot

disabilities
vote

such

privately

as
and

The district court credited the

of

Baltimore

usability

study

that

concluded the tool was “highly accessible for disabled voters,”
J.A. 1047-48, though the district court acknowledged that two
individuals

testified

that

they

had

difficulty

accessing

using the tool during a public demonstration period.

and

J.A. 1048.

The district court found the tool “compatible with reasonably
up-to-date computer and screen access software,” “designed in
accordance with the Web Content Accessibility Guidelines,” and
“compatible

with

refreshable

Braille

displays.”

Id.

The

district court did find that there were still “challenges to

intervenors have appealed any part of the district court’s
disposition on this issue, and we see no reason to disturb it.
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private and independent voting by absentee ballot for disabled
voters

even

voters

may

when
need

submission.”

using

the

assistance

Id.

tool,”
in

including

signing

“However,

the

that

their

“disabled

ballots

testimony

at

before

trial

also

indicated that, because the signature sheet prints on a separate
page, the risk of disclosure of a disabled voter’s selections
was minimalized and, in any event, was significantly less than
that

afforded

under

system . . . .”
With
ballot

current

paper

absentee

ballot

J.A. 1048-49.

respect

marking

testimony

the

to

the

tool,

that

the

security

the
tool

risks

district

posed

court

“exhibited

by

the

online

credited

software

expert

independence,

meaning a change to the voting software used for an election
cannot

cause

an

undetectable

change

to

the

outcome

of

an

election” and that “there were no additional risks that did not
exist in other methods already available to Maryland voters.”
J.A. 1049.
without

The district court found that the tool was “not

some

security

risks”

including

that

“malware

could

enable [a] third party to observe a voter’s selections” and that
“a

voter’s

infiltrated

selections
the

could

Board’s

be

server

captured
during

if

the

a

third

time

a

party

voter’s

selections and/or the printable ballot were being transmitted.”
J.A. 1049-50.
that

the

Additionally, “[t]here was no evidence at trial

online

ballot

marking
13

tool

had

been

tested

against

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intentional

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attempts

server or the tool.”

to

Pg: 14 of 34

infiltrate

or

hack

into

the

Board’s

J.A. 1050.

The district court further found that “it is clear that
most voters may mark their absentee ballots without assistance”
and that plaintiffs “should be afforded the same opportunity,
but the State’s current voting program does not allow for it.”
J.A. 1055.

Based on the facts found at trial, the district

court concluded that plaintiffs had established that they had
been denied meaningful access to absentee voting in Maryland in
violation

of

Title

Rehabilitation Act.
judgment

for

II

of

the

ADA

and

Section

504

of

the

The district court entered a declaratory

plaintiffs

to

this

effect.

The

district

court

further concluded that plaintiffs’ proposed remedy, access to
the online ballot marking tool, was a reasonable modification
that

did

not

fundamentally

alter

Maryland’s

voting

program.

Consistent with these conclusions, the district court entered a
permanent

injunction

prohibiting

defendants

from

violating

plaintiffs’ rights under the ADA and the Rehabilitation Act and
requiring

defendants

to

make

the

online

ballot

marking

available to plaintiffs for the 2014 general election.
appeal followed.

14

tool
This

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II.
We review judgments resulting from a bench trial under a
mixed standard of review:

factual findings may be reversed only

if clearly erroneous, while conclusions of law are examined de
novo.

Plasterers’ Local Union No. 96 Pension Plan v. Pepper,

663 F.3d 210, 215 (4th Cir. 2011).

We review the grant of a

permanent injunction for abuse of discretion.

Legend Night Club

v. Miller, 637 F.3d 291, 297 (4th Cir. 2011).
Defendants’

appeal

principally

focuses

court’s three core legal conclusions:

on

the

district

(1) that plaintiffs have

been denied meaningful access to absentee voting in violation of
the ADA and the Rehabilitation Act; (2) that the online ballot
marking tool constitutes a reasonable remedial modification; and
(3) that requiring defendants to allow use of the tool does not
fundamentally alter Maryland’s voting program.

We address each

of these issues in turn.

III.
Title II of the ADA provides that “no qualified individual
with

a

disability

shall,

by

reason

of

such

disability,

be

excluded from participation in or be denied the benefits of the
services,

programs,

subjected

to

or

activities

discrimination

by

15

any

of

a

such

public

entity,

entity.”

42

or

be

U.S.C.

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§ 12132. 4
show:

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To make out a violation of Title II, plaintiffs must

(1)

they

have

a

disability;

(2)

they

are

otherwise

qualified to receive the benefits of a public service, program,
or

activity;

service,
against,

and

program,
on

the

(3)
or
basis

they

were

activity,
of

their

denied
or

the

benefits

otherwise

disability.

of

such

discriminated
Constantine

v.

Rectors & Visitors of George Mason Univ., 411 F.3d 474, 498 (4th
Cir. 2005).
Only the third of these elements—whether plaintiffs were
denied the benefits of a public service, program, or activity on
the basis of their disability—is at issue here. 5

4

Much of the

Section 504 of the Rehabilitation Act similarly provides
that “[n]o otherwise qualified individual with a disability in
the United States . . . shall, solely by reason of her or his
disability, be excluded from the participation in, be denied the
benefits of, or be subjected to discrimination under any program
or activity receiving Federal financial assistance.”
29 U.S.C.
§ 794. “Claims under the ADA’s Title II and the Rehabilitation
Act can be combined for analytical purposes because the analysis
is ‘substantially the same.’”
Seremeth v. Bd. of Cty. Comm'rs
Frederick Cty., 673 F.3d 333, 336 n.1 (4th Cir. 2012) (quoting
Doe v. Univ. of Md. Med. Sys. Corp., 50 F.3d 1261, 1265 n.9 (4th
Cir. 1995)). Because under the circumstances presented in this
case plaintiffs’ ADA and Rehabilitation Act claims rise and fall
together,
for
simplicity
our
opinion
combines
them
and
principally analyzes the ADA claim. Cf., e.g., A Helping Hand,
LLC v. Baltimore Cty., Md., 515 F.3d 356, 362 (4th Cir. 2008)
(“Congress has directed courts to construe the ADA to grant at
least as much protection as the Rehabilitation Act and its
implementing regulations.”).
5
Title II allows plaintiffs to pursue three distinct
grounds for relief: (1) intentional discrimination or disparate
treatment; (2) disparate impact; and (3) failure to make
reasonable accommodations.
A Helping Hand, LLC, 515 F.3d at
(Continued)
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dispute revolves around the proper way to define the scope of
the relevant public service or program at issue.

Plaintiffs

argue that the appropriate analytic scope is Maryland’s absentee
voting program.
program

in

its

Defendants urge analysis of Maryland’s voting
entirety,

alternatives—including
voters.

encompassing

in-person

the

various

voting—available

to

voting
Maryland

Defendants argue that even if absentee voting is not

fully accessible, the full accessibility of Maryland’s in-person
polling places provides disabled voters with meaningful access
to voting.

As explained below, we conclude that defendants’

proposed focus is overbroad and would undermine the purpose of
the ADA and its implementing regulations.

A.
Defendants’

argument

for

holistic

consideration

of

Maryland’s voting program is in some immediate tension with the

362.
Defendants somewhat mischaracterize plaintiffs’ claims as
advancing a disparate impact theory of discrimination.
See,
e.g., Br. of Appellants 38.
While some sort of disparity will
necessarily be present in cases of discrimination, that does not
mean that all discrimination cases are legally evaluated as
“disparate impact” cases; we do not interpret plaintiffs’
arguments as advancing a legal disparate impact theory (and the
district court did not evaluate them as such).
We understand
plaintiffs to be pursuing their claims on the theory that
defendants have failed to make reasonable accommodations that
would
afford
disabled
individuals
meaningful
access
to
Maryland’s absentee voting program.
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text of the ADA.

Pg: 18 of 34

Title II states that a disabled individual may

not be “excluded from participation in or be denied the benefits
of the services, programs, or activities of a public entity, or
be subjected to discrimination by any such entity.”
§ 12132.

42 U.S.C.

Defendants’ proposed focus on voting in its entirety

effectively reads out much of this language, suggesting that
Title II prohibits only complete exclusion from participation in
broadly-defined
disjunctive.

public

programs.

However,

Title

II

is

By its own terms it is not limited only to public

“programs”; it applies to “services, programs, or activities.”
Id.

(emphasis

“exclusion

from

added).

Title

participation”

II
in

a

does

not

public

only

program;

prohibit
it

also

separately prohibits “den[ying] the benefits” of that program.
Id. 6

And in addition to those prohibitions, Title II separately

generally
Id.

prohibits

Although

the

“discrimination
bare

language

by
of

any

[public]

Title

II

entity.”
does

not

definitively resolve the question of appropriate scope, it does

6

The United States, as amicus, suggests that defendants
would still be in violation of Title II even were we to conclude
that Maryland’s entire voting program was “the” program subject
to Title II’s requirements. We acknowledge that it is possible
to view the ability to vote from the comfort of one’s home as
one of the “benefits” of Maryland’s overall voting program, the
denial of which benefit on the basis of disability might support
a Title II claim.
However, given our conclusion below that we
must evaluate Maryland’s absentee voting program directly, we
need not address the United States’s contention.
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suggest

to

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us

that

some

Pg: 19 of 34

granularity

in

analytic

focus

is

necessary.
The Supreme Court has cautioned against defining the scope
of a public benefit so as to avoid questions of discriminatory
effects.

In Alexander v. Choate, 469 U.S. 287, 301 (1985), a

Rehabilitation Act case, a unanimous Court counseled that in
assessing whether a disabled individual had been provided with
meaningful
course,

access

cannot

to

be

qualified

access

which

(citing

with

benefit,

defined

otherwise
to

a

they

a

handicapped
are

approval

“[a]ntidiscrimination

in

“[t]he
way

that

See

the

also

government’s

legislation

can

itself,

effectively

individuals

entitled.”
the

benefit

denies

meaningful

id.

at

statement

obviously

be

of

n.21
that

emptied

of

meaning if every discriminatory policy is ‘collapsed’ into one’s
definition of what is the relevant benefit”).

The logic of

Alexander further suggests that we should proceed cautiously to
avoid defining a public program so generally that we overlook
real difficulties in accessing government services.
Also significant for our analysis of the proper scope of
review here is the fact that Maryland allows any voter to vote
by

absentee

ballot.

Elec.

Law

§§

9-301,

9-304.

Absentee

ballots are not provided only to a limited set of voters with a
demonstrated need to vote absentee; they are instead provided to
the entire Maryland electorate at the option of each individual
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voter.

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Pg: 20 of 34

On the whole, then, we think it is far more natural to

view absentee voting—rather than the entire voting program—as
the appropriate object of scrutiny for compliance with the ADA
and the Rehabilitation Act.
Defendants’

remaining

arguments

straightforward conclusion are unpersuasive.

against

this

Defendants cite an

ADA-implementing regulation, 28 C.F.R. § 35.150(a), which they
assert

requires

program

“in

its

a

reviewing

court

entirety.”

to

view

However,

the

expressly pertains to “existing facilities.”

Maryland’s
cited

voting

regulation

See id.

On its

face, this regulation simply provides that a public entity does
not have to make each of its facilities accessible as long as
individuals
offered

with

public

disabilities

have

services.

access

This

to

that

entity’s

is

targeted

regulation

principally at physical accessibility and allows a public entity
to

provide

accessibility

alternatives

that

would

not

require

large-scale architectural modifications of existing facilities.
Accord

Constantine,

411

F.3d

at

489

(discussing

28 C.F.R.

§ 35.150(a) and explaining that “structural changes in existing
physical

facilities”

are

“probably

the

most

expensive

enterprise” in providing accessibility).
Other ADA-implementing regulations, however, are applicable
here

and

entirety

conflict
of

with

Maryland’s

defendants’
voting
20

proposed

program.

As

focus
one

on

the

example,

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28 C.F.R.

Filed: 02/09/2016

§

35.130

discrimination”)

Pg: 21 of 34

(“General

directly

prohibitions

implements

discrimination mandate of Title II.

the

general

against
anti-

Subsection (b)(7) of the

regulation requires public entities to make certain reasonable
modifications in “policies, practices, or procedures when the
modifications are necessary to avoid discrimination on the basis
of disability”; this regulation clearly contemplates a focus on
accessibility at a more granular level than entire government
programs—the

level

of

“policies,

practices,

and

procedures.”

Id. 7
Defendants also cite to three district court decisions from
other circuits that they argue stand for the proposition that
all aspects of a state’s voting program must be viewed together
when analyzing an ADA claim.

Br. of Appellants 55-56.

7

It is

As another example, 28 C.F.R. § 35.160 states that “[a]
public entity shall take appropriate steps to ensure that
communications with [disabled persons] are as effective as
communications with others” and “shall furnish appropriate
auxiliary
aids
and
services
where
necessary
to
afford
individuals with disabilities . . . an equal opportunity to
participate in, and enjoy the benefits of, a service, program or
activity of a public entity.”
Id. § (a)(1), (b)(1).
The
requirement to provide “auxiliary aids and services” again
suggests to us that accessibility cannot be adequately assessed
at the highest level of program abstraction. The United States
argues that this particular regulation alone is a sufficient
basis to affirm the decision here.
Br. for United States as
Amicus Curiae 17-19.
We think that the ADA itself and the
general anti-discrimination regulation discussed above provide
the most direct resolution in this case. We therefore need not
consider whether there might be other independent bases that
support an ADA or Rehabilitation Act claim on the facts here.
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not clear to us that the cited cases in fact support defendants’
proposition; in any event, we find them unpersuasive.

Further,

later decisions in some of those districts (and decisions by the
courts of appeals sitting above them), flatly reject the very
argument

defendants

advance

here.

See,

e.g.,

United

Spinal

Ass’n v. Bd. of Elections in New York, 882 F. Supp. 2d 615, 62324 (S.D.N.Y. 2012) (“It is abundantly clear that Defendants are
obligated to provide a level of access to their voting program
beyond the simple assurance that voters with disabilities are
able to cast a ballot in some way, shape, or form.”); Disabled
in Action v. Bd. of Elections in New York, 752 F.3d 189, 198-99
(2d Cir. 2014) (“[T]o assume the benefit is . . . merely the
opportunity to vote at some time and in some way [] would render
meaningless

the

mandate

that

public

entities

may

not

afford

persons with disabilities services that are not equal to that
afforded others.” (quotation omitted)).

B.
Having determined that Maryland’s absentee voting program
is

the

determine

appropriate
whether

subject

absentee

of

our

voting

is

ADA

analysis,

accessible

to

we

must

disabled

individuals as required by statute and implementing regulations.
As the Supreme Court has explained:

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Congress enacted the ADA in 1990 to remedy widespread
discrimination against disabled individuals.
In
studying the need for such legislation, Congress found
that “historically, society has tended to isolate and
segregate individuals with disabilities, and, despite
some
improvements,
such
forms
of
discrimination
against individuals with disabilities continue to be a
serious and pervasive social problem.”
PGA Tour, Inc. v. Martin, 532 U.S. 661, 674-75 (2001) (quoting
42

U.S.C.

§

12101(a)(2)).

discrimination

was

not

Congress
limited

found

“outright

to

explicitly

that

intentional

exclusion,” but was also to be found in “the ‘failure to make
modifications to existing facilities and practices.’”
675

(quoting

42

U.S.C.

§

12101(a)(5)).

After

Id. at
thorough

investigation and debate, Congress concluded that there was a
“compelling

need”

mandate”

to

disabled

individuals

life.

both

for

a

“clear

eliminate
into

and

comprehensive

discrimination

the

social

to

mainstream

Id. (internal citations omitted).

provided that broad mandate.”

and

of

national
integrate
American

“In the ADA, Congress

Id.

Congress has explicitly directed the Attorney General to
promulgate

regulations

non-discrimination mandate.

implementing

Title

42 U.S.C. § 12134.

II’s

Pursuant to

this directive, the Department of Justice (“DoJ”) promulgated a
number

of

regulations,

including

28

C.F.R.

§

35.130.

regulation provides:
A public entity, in providing any aid, benefit, or
service, may not . . . [a]fford a qualified individual
23

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with a disability an opportunity to participate in or
benefit from the aid, benefit, or service that is not
equal to that afforded others . . . [or] [p]rovide a
qualified individual with a disability with an aid,
benefit, or service that is not as effective in
affording equal opportunity to obtain the same result.
28 C.F.R. § 35.130(b)(1)(ii)-(iii). 8

We have recognized that

“[t]he department’s regulations are the agency’s interpretation
of

the

statute,

and

they

are

therefore

given

‘controlling

weight’ unless they conflict with other departmental regulations
or the ADA itself.”

Seremeth, 673 F.3d at 338 (citing Stinson

v. United States, 508 U.S. 36 (1993), and Chevron, U.S.A., Inc.
v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 844 (1984)).
We have little trouble concluding from the record before us
that

Maryland’s

absentee

voting

program

does

not

provide

disabled individuals an “opportunity to participate . . . equal
to that afforded others.”

See 28 C.F.R. § 35.130(b)(1)(ii).

The district court found that “it is clear that most voters may
mark their absentee ballots without assistance.”
This

finding

is

not

clearly

erroneous.

The

J.A. 1055.

district

court

further found that Maryland’s current absentee voting program
does not allow disabled individuals such as plaintiffs to mark
their ballots without assistance.
clearly

erroneous.

This

sharp

8

Id.

This finding is also not

disparity

makes

obvious

that

The Rehabilitation Act’s regulations impose similar
requirements. See, e.g., 45 C.F.R. § 84.4(b)(1)(ii)-(iii).
24

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defendants
disabled

Filed: 02/09/2016

have

provided

individuals]

Pg: 25 of 34

“an

that

aid,

is

benefit,

not

as

or

effective

service
in

[to

affording

equal opportunity to obtain the same result, to gain the same
benefit,

or

to

reach

provided to others.”

the

same

level

of

achievement

as

that

See 28 C.F.R. § 35.130(b)(1)(iii).

The

ADA requires more.
Defendants do not seriously challenge the district court’s
factual
vote

findings

without

concerning

plaintiffs’

assistance.

Instead,

current

inability

defendants

argue

to

that

plaintiffs have not been denied meaningful access to absentee
voting because disabled individuals such as plaintiffs have no
right to vote without assistance.
This

argument

simply

See Br. of Appellants 59-60.

misapprehends

the

nature

of

plaintiffs’

claims.
This case does not turn on whether there is a standalone
right to vote privately and independently without assistance.
Plaintiffs’ argument is that defendants have provided such a
benefit to non-disabled voters while denying that same benefit
to

plaintiffs

on

the

basis

of

their

disability.

precisely the sort of harm the ADA seeks to prevent.

This

is

Cf., e.g.,

Disabled in Action, 752 F.3d at 199-200 (“Although [plaintiffs]
were

ultimately

able

to

cast

their

vote

with

the

fortuitous

assistance of others, the purpose of the Rehabilitation Act is
‘to

empower

individuals

with
25

disabilities

to

maximize

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employment,

Filed: 02/09/2016

economic

Pg: 26 of 34

self-sufficiency,

independence,

inclusion and integration into society’ . . . .

and

The right to

vote should not be contingent on the happenstance that others
are

available

to

help.”

(emphasis

by

2d

Circuit)(quoting

29 U.S.C. § 701(b)(1))); Cal. Council of the Blind v. Cty. of
Alameda,

985

F.

Supp.

2d

1229,

1239

(N.D.

Cal.

2013)

(“[R]equiring blind and visually impaired individuals to vote
with the assistance of a third party, if they are to vote at
all, at best provides these individuals with an inferior voting
experience

‘not

equal

to

that

afforded

others.’”

(quoting

28 C.F.R. § 35.130(b)(1)(ii))).
Voting is a quintessential public activity.
the

ADA,

Congress

explicitly

found

that

In enacting

“‘individuals

with

disabilities . . . have been . . . relegated to a position of
political powerlessness in our society, based on characteristics
that are beyond the control of such individuals.’”
Lane,

541

U.S.

12101(a)(7)).

509,

516

(2004)

(quoting

Tennessee v.
42

U.S.C.

§

Ensuring that disabled individuals are afforded

an opportunity to participate in voting that is equal to that
afforded others, 28 C.F.R. § 35.130, helps ensure that those
individuals

are

powerlessness.

never

relegated

to

a

position

of

political

We affirm the district court’s conclusion that

by effectively requiring disabled individuals to rely on the
assistance

of

others

to

vote

absentee,
26

defendants

have

not

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provided

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plaintiffs

with

Pg: 27 of 34

meaningful

access

to

Maryland’s

absentee voting program.

IV.
Determining

that

plaintiffs

have

been

denied

access to absentee voting does not end our analysis.
public

services,

programs,

or

activities

can

meaningful
Not all
be

made

meaningfully accessible to all citizens, or at least they cannot
be made so without a prohibitive cost or unreasonable effort on
the part of the public entity.
their

ADA

claim,

For this reason, to prevail on

plaintiffs

must

propose

a

reasonable

modification to the challenged public program that will allow
them the meaningful access they seek.

See, e.g., Halpern v.

Wake Forest Univ. Health Scis., 669 F.3d 454, 464 (4th Cir.
2012) (noting that federal law mandates that federal grantees
and

public

accommodations

make

“reasonable”

modifications

to

accommodate persons with disabilities). 9
DoJ

regulations

implementing

the

ADA

explain

that

“[a]

public entity shall make reasonable modifications in policies,
practices, or procedures when the modifications are necessary to

9

Halpern was a Title III and Rehabilitation Act case. We
have noted that in general the different language of Titles II,
III, and the Rehabilitation Act should be construed together to
the extent possible.
Halpern, 669 F.3d at 461-62 (collecting
cases).
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avoid discrimination on the basis of disability.”
§ 35.130(b)(7). 10

A

modification

is

reasonable

28 C.F.R.
if

it

is

“reasonable on its face” or used “ordinarily or in the run of
cases” and will not cause “undue hardship.”

Halpern, 669 F.3d

at 464 (citing U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 40102 (2002)); cf. Henrietta D. v. Bloomberg, 331 F.3d 261, 280
(2d.

Cir

2003)

(stating

that

the

burden

of

establishing

the

reasonableness of an accommodation is “‘not a heavy one’” and
that it “is enough for the plaintiff to suggest the existence of
a plausible accommodation, the costs of which, facially, do not
clearly exceed its benefits” (quoting Borkowski v. Valley Cent.
Sch. Dist., 63 F.3d 131, 138 (2d Cir. 1995))).

Determination of

the reasonableness of a proposed modification is generally factspecific.
The

Halpern, 669 F.3d at 464.
district

court

here

found

that

plaintiffs’

proposed

modification—the online ballot marking tool—was both reasonably
secure and reasonably accessible to disabled voters.

Reviewing

the record as a whole, these findings do not appear clearly
erroneous and we see no need to disturb them.

Further, although

not determinative by itself, the fact that a version of the tool
10

The regulations, however, do not require implementation
of even reasonable modifications where the “public entity can
demonstrate that making the modifications would fundamentally
alter the nature of the service, program, or activity.”
28 C.F.R. § 35.130(b)(7).
We address defendants’ “fundamental
alteration” defense below.
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was voluntarily implemented by defendants in the 2012 elections—
“without

any

apparent

incident,”

J.A.

reasonableness of using the tool.

1057—speaks

to

the

Additionally, because the

tool has already been developed, there does not appear to be any
substantial cost or implementation burden that would need to be
borne by Maryland to make the tool available for use.

On the

facts before us, we conclude that plaintiffs’ proposed use of
the online ballot marking tool is a reasonable modification to
Maryland’s absentee voting policies and procedures.

V.
Defendants

correctly

argue

that

even

a

reasonable

modification to Maryland’s absentee voting program need not be
made

if

program.
464.

that

modification

would

“fundamentally

alter”

the

See 28 C.F.R. § 35.130(b)(7); Halpern, 669 F.3d at

Defendants bear the burden of proving that the requested

modification would be a fundamental alteration to the program.
See 28 C.F.R. § 35.130(b)(7).

After considering defendants’

arguments and reviewing the record as a whole, we conclude that
they have not met this burden.
Defendants’
voting

systems,

principal
including

argument

is

certification

that
of

certification
the

online

of

ballot

marking tool under Election Law Section 9-308.1, is fundamental
to

Maryland’s

voting

program.
29

They

argue

from

this

that

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requiring them to make the online ballot marking tool available
for plaintiffs’ use, where that tool has not yet received the
statutorily-required

supermajority

vote,

alteration to Maryland’s voting program.

works

a

fundamental

Therefore, defendants

argue, the district court abused its discretion in enjoining
We disagree. 11

them to make the tool available to plaintiffs.
As

an

initial

matter,

the

strong

form

of

defendants’

argument—that the mere fact of a state statutory requirement
insulates

public

modifications
correct.

to

entities
prevent

from

making

disability

otherwise

reasonable

discrimination—cannot

be

The Constitution’s Supremacy Clause establishes that

valid federal legislation can pre-empt state laws.

Oneok, Inc.

v. Learject, Inc., 135 S. Ct. 1591, 1595 (2015) (citing U.S.
Const. Art. VI, cl. 2).

The Supreme Court has held that the

ADA’s Title II, at least in certain circumstances, represents a
valid exercise of 14th Amendment powers, Lane, 541 U.S. at 53334, and as such it trumps state regulations that conflict with
its requirements.

As the Sixth Circuit has put it, “[r]equiring

public entities to make changes to rules, policies, practices,
or services is exactly what the ADA does.”
11

Jones v. City of

Given our conclusion that use of the online ballot
marking tool does not fundamentally alter Maryland’s program, we
discern no abuse of discretion in the district court’s decision
to issue the injunction as the other factors to be considered
easily weigh in favor of granting injunctive relief. Cf. Legend
Night Club, 637 F.3d at 302-03.
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Monroe, MI, 341 F.3d 474, 487 (6th Cir. 2003) (citing Oconomowoc
Residential Programs, Inc. v. City of Milwaukee, 300 F.3d 775,
782-83 (7th Cir. 2002)), abrogated on other grounds by Anderson
v. City of Blue Ash, 798 F.3d 338 (6th Cir. 2015); accord Mary
Jo C. v. New York State and Local Ret. Sys., 707 F.3d 144, 163
(2d Cir. 2013) (“If all state laws were insulated from Title
II’s

reasonable

modification

requirement

solely

because

they

were state laws . . . the ADA would be powerless to work any
reasonable modification in any requirement imposed by state law,
no matter how trivial the requirement and no matter how minimal
the costs of doing so.”).
However, we also think that the converse proposition cannot
be correct either.

Certain requirements of state law could in

fact be fundamental to a public program in a way that might
resist

reasonable

modifications

otherwise

that program into compliance with the ADA.

necessary

to

bring

Defendants here urge

that Maryland’s statutory certification requirement is just such
an example:

certification, they argue, goes to the very heart

of the voting program by ensuring the integrity of the voting
process

as

a

undoubtedly

an

whole.
important

Public

confidence

governmental

in

concern.

elections
But

on

is
the

record before us defendants simply have not established their
premise, that is, that use of the online ballot marking tool
degrades the integrity of Maryland’s voting processes.
31

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Put

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another

way,

Pg: 32 of 34

defendants

are

merging

Maryland’s

procedural certification requirement with substantive concerns
about whether the tool should be certified.

The mere fact that

a procedural requirement has not been met does not necessarily
mean that the underlying substantive purpose of that requirement
has not been met.

The underlying question is fact-specific.

See, e.g., Halpern, 669 F.3d at 464-68; cf. Jones, 341 F.3d at
480

(“In

cases

involving

waiver

of

applicable

rules

and

regulations, the overall focus should be on whether waiver of
the rule in the particular case would be so at odds with the
purposes behind the rule that it would be a fundamental and
unreasonable

change.”

(quotation

omitted)).

The

relevant

inquiry here is not whether certification qua certification is
fundamental to Maryland’s voting program, but whether use of the
tool without certification would be so at odds with the purpose
of certification that such use would be unreasonable. 12
Here, the district court found, after a three-day bench
trial, that the tool is reasonably secure, safeguards disabled
voters’ privacy, and (in earlier versions at least) has been

12

The problem with conflating procedure and substance here
can be illustrated by analogy to the archetypal physical
accessibility modifications often associated with the ADA.
It
would
be
difficult
for
a
government
entity
to
resist
installation of, for example, wheelchair ramps for a new
courthouse, solely by enacting a law requiring that ramps be
certified and then declining to certify any ramps.
32

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used in actual elections without apparent incident. 13

We do not

think these findings are clearly erroneous and defendants have
not provided any substantial reasons that they should be called
into question.

Cf., e.g., Pepper, 663 F.3d at 215 (“[I]f the

district court's account of the evidence is plausible in light
of the record in its entirety, we will not reverse the district
court's finding simply because we have become convinced that we
would have decided the question of fact differently.” (quoting
TFWS, Inc. v. Franchot, 572 F.3d 186, 196 (4th Cir. 2009))).

On

the record as a whole, we do not conclude that use of the online
ballot

marking

tool

is

so

at

odds

with

the

certification that its use would be unreasonable.

purposes

of

We agree with

the district court that defendants have not met their burden to
show that plaintiffs’ proposed modification—use of the online
ballot marking tool—would fundamentally alter Maryland’s voting
program.

VI.
We recognize that some of the standard analytic language
used

in

evaluating

ADA

claims—“failure

to

make

reasonable

accommodations”; “denial of meaningful access”—carries with it

13

Nothing in the post-trial record indicates any problems
with the use of the tool by plaintiffs in the 2014 general
election subsequent to the district court’s decision.
33

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certain

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negative

Pg: 34 of 34

connotations.

We

would

be

remiss

in

not

highlighting that the record is devoid of any evidence that the
defendants

acted

with

discriminatory

Maryland’s absentee voting program.

animus

in

implementing

Indeed, we recognize that

Maryland’s decision to provide “no excuse” absentee voting to
all its citizens provides a benefit that is far from universal
across the United States.
However, the ADA and the Rehabilitation Act do more than
simply provide a remedy for intentional discrimination.

They

reflect broad legislative consensus that making the promises of
the Constitution a reality for individuals with disabilities may
require even well-intentioned public entities to make certain
reasonable accommodations.
by

concern

that

Our conclusions here are not driven

defendants

are

manipulating

the

election

apparatus intentionally to discriminate against individuals with
disabilities; our conclusions simply flow from the basic promise
of equality in public services that animates the ADA.
For the foregoing reasons, we affirm.
AFFIRMED

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