California Council of the Blind et al v. County of San Mateo et al

Filing 66

ORDER REQUESTING LETTER BRIEFING IN LIGHT OF LEGISLATIVE ACTION AND MEDIATION EFFORTS by Judge Charles R. Breyer (crblc2, COURT STAFF) (Filed on 7/5/2016).

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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CALIFORNIA COUNCIL OF THE BLIND,

No. C 15-cv-05784 CRB

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et al.,

ORDER REQUESTING LETTER
BRIEFING IN LIGHT OF LEGISLATIVE
ACTION AND MEDIATION EFFORTS

Plaintiff,

United States District Court
For the Northern District of California

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v.
COUNTY OF SAN MATEO, et al.,
Defendant.

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The California Council for the Blind and two named Plaintiffs (“Plaintiffs”) move

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under the ADA and Rehabilitation Act for a preliminary injunction ordering Defendants San

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Mateo County (the “County”) and the State of California to make an electronic ballot

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marking tool available to Plaintiffs for use in the November 2016 election. See Preliminary

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Injunction Motion (dkt. 47). The Court held a hearing on this matter on July 1, 2016.

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After considering the submissions, oral argument, and relevant authorities, including

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Hindel v. Husted, No. 2:15-CV-3061, 2016 WL 2735935 (S.D. Ohio May 11, 2016) and

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Nat’l Fed’n of the Blind v. Lamone, 813 F.3d 494 (4th Cir. 2016), the Court concludes that

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Plaintiffs have shown a strong likelihood of success on the merits of their claim. See

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Hearing Transcript (dkt. 64). As the Court noted at the hearing, Plaintiffs have made a

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showing that California Elections Code § 19205 is preempted by the ADA to the extent it

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bars blind and visually-impaired voters from using electronic ballot marking tools. See id.

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The Court further concludes that Defendants have shown a strong likelihood that

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implementation of the voting tool requested by Plaintiffs—on Plaintiff’s abbreviated
timeline—would be a fundamental alteration of the absentee voting program. See id.

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At the July 1 hearing on this matter, the state noted that the California legislature has

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passed a bill that would potentially allow Plaintiffs to use the voting software they have

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requested here. See id. The parties also informed the Court that (a) they are scheduled to

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attend mediation and (b) they are willing to submit additional letter briefs to the Court

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following that mediation and following action from the governor on the bill. See id.

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The Court thus ORDERS the parties to submit letter briefs to the Court addressing (1)

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whether a further hearing on the feasibility of implementing a new electronic ballot marking

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tool on Plaintiffs’ timeline is necessary; (2) whether further action from the Court is required

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given recent legislative action;1 and (3) whether the parties have been able to successfully

United States District Court
For the Northern District of California

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resolve this matter through mediation. The parties are ORDERED to submit these letter

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briefs as soon as possible, but not later than August 1, 2016.

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IT IS SO ORDERED.

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Dated: July 5, 2016
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CHARLES R. BREYER
UNITED STATES DISTRICT JUDGE

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As the Court noted at the hearing, if the governor signs the recently passed bill allowing the
use of electronic ballot marking tools in California elections, Plaintiffs have shown a strong likelihood
that an injunction should issue prohibiting the state from delaying certification or testing of such a tool
based on the fact that the new law would not take effect until January 2017. See Hearing Transcript.
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