MERRILL et al v. DUNLAP et al
Filing
42
First AMENDED COMPLAINT against All Defendants, filed by NICHOLAS GIUDICE, CHERYL PEABODY, LYNN MERRILL, PAULINE LAMONTAGNE. (Service of Process Deadline 12/29/2020)(AIELLO, KRISTIN)
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
LYNN MERRILL, NICHOLAS
GIUDICE, PAULINE LAMONTAGNE,
CHERYL PEABODY and DISABILITY
RIGHTS MAINE,
)
)
)
)
)
PLAINTIFFS
)
)
v.
) CIVIL ACTION NO. 1:20-cv-00248
) -JAW
MATTHEW DUNLAP, Secretary of State, )
in his official capacity; the MAINE
)
DEPARTMENT OF THE SECRETARY )
OF STATE, and, in their official capacities, )
KELLY GOOLDRUP, Augusta City Clerk )
& Registrar of Voters; LISA GOODWIN, )
Bangor City Clerk & Registrar of Voters; )
KATHERINE JONES, Portland City Clerk )
& Registrar of Voters; LISA GILLIAM,
)
Winslow Town Clerk & Registrar of Voters; )
and the Cities of AUGUSTA, BANGOR, )
PORTLAND and the Town of WINSLOW, )
)
Defendants
)
FIRST AMENDED COMPLAINT
FOR DECLARATORY AND INJUNCTIVE RELIEF
INTRODUCTION
1.
Plaintiffs bring this action against the Department of the Secretary of
State of the State of Maine, and, in their official capacities, Defendant Matthew
Dunlap, Secretary of State; Defendant Kelly Gooldrup, Town Clerk and Registrar
of Voters in the City of Augusta; Defendant Lisa Goodwin, City Clerk and
1
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Registrar of Voters in the City of Bangor; Defendant Katherine Jones, City Clerk
and Registrar of Voters in the City of Portland; and Defendant Lisa Gilliam, Town
Clerk and Registrar of Voters in the Town of Winslow, and the Cities of Augusta,
Bangor and Portland and the Town of Winslow. Plaintiffs bring their claims under
Title II of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §
12131 et seq., Section 504 of the Rehabilitation Act of 1973 (“Section 504”), 29
U.S.C. § 794 et seq., and the Maine Human Rights Act, 5 M.R.S.A. 4551 et seq.
2.
Plaintiffs seek to vindicate their rights as individuals with disabilities
to vote privately and independently by absentee ballot in the November 3, 2020,
election and in future elections. Plaintiffs have been denied that right in violation
of federal and state laws. On the basis of these violations, Plaintiffs seek a
temporary restraining order, preliminary and permanent injunctive relief, a
declaratory judgment, and attorney’s fees and costs.
3.
The
novel coronavirus
SARS-CoV-2 (“COVID-19”
or
“the
coronavirus”) has drastically impacted business as usual in Maine over the past
four months.
4.
Governor Janet Mills responded to the pandemic by taking emergency
measures designed to slow the spread of the coronavirus. These measures have
included changes to the way the State conducts its statewide and local elections.
For example, the Governor’s emergency orders delayed voting on Maine’s primary
2
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election and state bond referendum questions from June 9, 2020, to July 14, 2020.
The order also expanded the Absentee Voting program to encourage all Maine
registered voters to vote safely from home via absentee ballot.
5.
Maine’s Absentee Voting program requires voters to fill out a paper
ballot using a pen and to return the ballot by U.S. Mail or by hand delivery to a
public place.
6.
Plaintiffs are unable to independently mark a paper ballot because
they are blind. 1
7.
Maine allows all registered voters to vote via absentee ballot, for any
reason.
8.
Yet Maine’s Absentee Voting program on the state and local level
provides no alternatives to accommodate blind individuals who wish to vote
privately, independently and safely from home.
9.
Maine’s reliance exclusively on paper forms and ballots for absentee
voting prevents Plaintiffs, and others with print disabilities, from independently
and privately casting a vote.
10.
Individuals who are blind must choose between their health and their
right to vote privately and independently because they are forced to go to a public
voting place to privately and independently mark their ballot.
1
For semantic convenience throughout this Complaint, the term “blind” is used in its broadest sense to include all
persons who, under federal and state civil rights laws, have a vision-related disability that requires alternative
methods to access print.
3
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11.
The Constitution of the State of Maine guarantees the right to a secret
ballot. “[T]he right of secret voting shall be preserved.” ME Const., Art. II, § 5; see
also Help America Vote Act of 2002, Pub. L. 107-252 § 301, 116 Stat. 1666, 1704
(codified as amended at 52 U.S.C. 21081) (providing the right to review and
change one’s ballot privately and independently in federal elections).
12.
Maine and its municipalities are required to make their Absentee
Voting programs accessible to blind voters, and others who are unable to
independently mark a paper ballot, as many other states have done.
JURISDICTION AND VENUE
13.
Plaintiffs’ federal claims are made pursuant to Title II of the
Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12131 et seq., and Section
504 of the Rehabilitation Act of 1973 (“Section 504”), 29 U.S.C. § 794 et seq.
Plaintiffs’ state claims are made pursuant to Subchapter 5 of the Maine Human
Rights Act (“MHRA”), 5 M.R.S. § 4551 et seq.
14.
This Court has subject matter jurisdiction over this action under 28
U.S.C. §§ 1331, 1343(a)(4) because Plaintiffs’ claims arise under the ADA and
Section 504. This Court has supplemental jurisdiction over Plaintiffs’ state law
claims pursuant to 28 U.S.C. 1367(a).
15.
Venue is proper in this Court under 28 U.S.C. § 1391(b)(1).
4
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16.
Declaratory and injunctive relief are authorized by this Court pursuant
to 28 U.S.C. §§ 2201, 2202.
PARTIES
17.
Lynn Merrill is a citizen of the United States. Ms. Merrill is at least 18
years of age. Ms. Merrill resides in Augusta, Maine, where she is registered to
vote. Ms. Merrill has voted in past elections. She plans to vote in the general
election on November 3, 2020 and in subsequent federal, state, and local elections.
Ms. Merrill meets all qualifications to vote in Augusta, Maine.
18.
Nicholas Giudice, Ph.D., is a citizen of the United States. Dr. Giudice
is at least 18 years of age. He resides in Bangor, Maine, where he is registered to
vote. Dr. Giudice has voted in past elections and plans to vote in the general
election on November 3, 2020, and in subsequent federal, state, and local elections.
Dr. Giudice meets all qualifications to vote in Bangor, Maine.
19.
Pauline Lamontagne, Esq., is a citizen of the United States. Ms.
Lamontagne is at least 18 years of age. She resides in Portland, Maine, where she
is registered to vote. Ms. Lamontagne has voted in past elections and plans to vote
in the general election on November 3, 2020, and in subsequent federal, state, and
local elections. Ms. Lamontagne meets all qualifications to vote in Portland,
Maine.
5
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20.
Cheryl Peabody is a citizen of the United States. Ms. Peabody is at
least 18 years of age. Ms. Peabody resides in Winslow, Maine, where she is
registered to vote. Ms. Peabody has voted in past elections and plans to vote in the
general election on November 3, 2020, and in subsequent federal, state, and local
elections. Ms. Peabody meets all qualifications to vote in Winslow, Maine.
21.
Disability Rights Maine (DRME) is an independent non-profit
corporation organized under the laws of the State of Maine. DRME is a Protection
and Advocacy System (“P&A”), as that term is defined under the Developmental
Disabilities Assistance and Bill of Rights (“DD Act”), 42 U.S.C. § 15041 et seq.,
the Protection and Advocacy for Individuals with Mental Illness Act of 1986
(“PAIMI Act”), 42 U.S.C. § 10801 et seq., and the Protection and Advocacy of
Individual Rights Act (“PAIR Act”), 29 U.S.C. § 794e et seq., with offices located
at 160 Capitol Street, Suite 4, Augusta, ME 04330.
22.
As Maine’s Protection & Advocacy system, DRME is specifically
authorized to pursue legal, administrative, and other appropriate remedies or
approaches to ensure the protection of, and advocacy for, the rights of individuals
with disabilities. 42 U.S.C. § 15043(a)(2)(A)(i); 5 M.R.S.A. § 19505. DRME
represents the interests of Maine citizens with disabilities, and the voting rights of
people with disabilities are germane to the organization’s purpose. Pursuant to the
authority vested in it by Congress to file claims of rights violations on behalf of
6
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individuals with disabilities, DRME brings claims on behalf of individuals with
disabilities, including the individuals named herein, who are seeking or may seek
the right to vote using an accessible absentee ballot in the November 3, 2020
General Election, and for all future elections involving the use of the Absentee
Voting Program.
23.
Pursuant to the authority vested in it by Congress to file claims of
rights violations on behalf of individuals with disabilities, DRME brings claims on
behalf of individuals with disabilities, including the individuals named herein who
are seeking or may seek the right to vote using an accessible absentee ballot in the
November 3, 2020 General Election, and for all future elections involving the use
of the Absentee Voting program.
24.
Defendant Matthew Dunlap is the Secretary of State of Maine, and in
that position, leads the Maine Department of the Secretary of State. Defendant Sec.
Dunlap issues rules regarding voting in the State of Maine and supervises and
administers Maine’s elections, including the absentee voting program. He is sued
in his official capacity only.
25.
Defendant Maine Department of the Secretary of State is the
department within the Maine state government tasked with administering and
supervising elections within the State of Maine. The Department receives federal
7
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funds that are designated to conduct elections in the State of Maine, and is subject
to Section 504 of the Rehabilitation Act of 1973.
26.
Although Defendant Maine Department of the Secretary of State and
Defendant Dunlap are tasked with administering and supervising elections within
the State of Maine, they have failed to provide an absentee ballot system that is
accessible to voters with disabilities.
27.
In addition, at all relevant times, the Department and Sec. Dunlap
have provided no plan or system to ensure that local ballots are accessible in the
voting machines that the Department provides at all polling places in Maine. As a
result, people with print disabilities have been forced to obtain assistance from
others with voting on local ballots even when voting at polling places in all
municipalities across Maine.
28.
Defendant Kelly Gooldrup is the current City Clerk and Registrar of
Voters of the City of Augusta, Maine, and substitutes for Defendant Tracy Roy,
who was the City Clerk and Registrar of Voters when this lawsuit was filed on July
15, 2020. Defendant Gooldrup is sued in her official capacity only.
As the
Registrar of Voters, it is Defendant Gooldrup’s responsibility to administer and
operate all aspects of State and Local Elections in Augusta.
29.
Defendant Lisa Goodwin is the City Clerk and Registrar of Voters of
the City of Bangor, Maine. Defendant Goodwin is sued in her official capacity
8
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only. As the Registrar of Voters, it is Defendant Goodwin’s responsibility to
administer and operate all aspects of State and Local Elections in Bangor.
30.
Defendant Katherine Jones is Registrar of Voters of the City of
Portland, Maine. Defendant Jones is sued in her official capacity only. As the
Registrar of Voters, it is Defendant Jones’s responsibility to administer and operate
all aspects of State and Local Elections in Portland.
31.
Defendant Lisa J. Gilliam is the Registrar of Voters of the Town of
Winslow, Maine. Defendant Gilliam is sued in her official capacity only. As the
Registrar of Voters, it is Defendant Gilliam’s responsibility to administer all
aspects of State and Local Elections in Winslow.
32.
The cities of Augusta, Bangor, and Portland and the Town of
Winslow are all “public entities” or “public accommodations” pursuant to the
ADA and the MHRA. They each receive federal funds and are, therefore, subject
to the provisions of the Rehabilitation Act of 1973.
FACTS
COVID-19 and the Urgent Call for Absentee Voting
33.
On March 15, 2020, Maine Governor Janet Mills proclaimed a state of
emergency to authorize the use of emergency powers to expand and expedite the
State’s response to the serious health and safety risks of the highly contagious
9
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COVID-19. These emergency powers extended to the running of statewide and
local elections.
34.
On April 10, 2020, Governor Mills signed an Executive Order moving
Maine’s primary election and statewide referendum from Tuesday, June 9, 2020, to
Tuesday, July 14, 2020. This extraordinary step was for the purpose of planning
measures to reduce public exposure to COVID-19. See Executive Order No.39 FY
19/20, An Order Modifying the Primary Election to Reduce Exposure to COVID19.
35.
On June 3, 2020, Governor Mills issued another Executive Order
pertaining to elections. Executive Order 56 FY 19/20, An Order to Further
Facilitate the State Primary and Local Elections within Public Health Restrictions
Due to COVID-19.
36.
The Governor’s Order also allows applications for absentee ballots to
be made in writing or in person, without specifying a reason, up to and including
the day of the election. Executive Order 56 FY 19/20.
37.
The delay in the statewide election is intended in part to provide
Mainers additional time to request absentee ballots in order to minimize in-person
interaction at the polls. Executive Order 56 FY 19/20.
38.
Governor Mills has recommended and urged Maine voters to vote by
absentee ballot in order to reduce the spread of COVID-19.
10
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39.
Defendant Sec. Dunlap has also recommended and urged that Maine
voters use an absentee ballot to "help reduce the possibility of virus exposure for
voters and election workers." 2
40.
Defendant Sec. Dunlap recommends that the “safest option” to return
a ballot is to mail it to the voter’s town clerk, which must be received no later than
8:00 p.m. on Election Day. Id.
41.
Defendant Sec. Dunlap has also stated that the State is taking all
precautions, but cannot require the public to wear masks while voting.
42.
Nationwide, as of July 13, 2020, there have been 3,296,599 total cases
of COVID-19, and 134,884 deaths. 3
43.
Adults with disabilities are three times more likely than adults without
disabilities to have the serious underlying medical conditions which place them at
a higher risk of severe illness form COVID-19.4
44.
Because voters often must crowd together to vote in polling places,
polling places are ideal environments to further the spread of the COVID-19 virus.
The Centers for Disease Control and Prevention (“CDC”) has encouraged people
2
See Maine Department of the Secretary of State, May 19, 2020, online at
https://www.youtube.com/watch?v=OH4VuHk0mk0
3
Centers for Disease Control and Prevention, Coronavirus Disease 2019 (COVID19), Cases in the U.S.,
https://www.cdc.gov/coronavirus/2019-ncov/casesupdates/cases-in-us.html.
4
See Centers for Disease Control and Prevention, People Who Need Extra Precautions: People with Disabilities,
https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-disabilities.html
11
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to use an absentee or mail-in ballot rather than traveling to polling places on
election day. 5
45.
Technology is readily available that would afford Plaintiffs, and other
voters who are blind, the opportunity to cast their votes through absentee ballots
privately and independently—as sighted individuals may do. But Defendants have
not made this technology available to Plaintiffs.
46.
The need for immediate implementation of accessible absentee ballots
is urgent in light of the ongoing COVID-19 global pandemic.
47.
Many Maine voters are expected to vote by absentee ballot in the
upcoming elections due to concerns about COVID-19. According to recent news
reports of July 3, “an unprecedented 163,000 Maine voters have requested absentee
ballots ahead of the July 14, 2020 primary election.”6
48.
Due to urgent concerns about the virus and shortage of poll workers,
many Maine cities and towns are also pushing for absentee voting. 7
49.
The dangers posed by in-person voting are real. Wisconsin officials
reported that at least 40 people may have contracted COVID-19 due to in-person
participation in that state’s April 7, 2020, primary election. 8
5
See Centers for Disease Control and Prevention, Coronavirus Disease 2019 (COVID-19), Recommendations for
Election Polling Locations, https://www.cdc.gov/coronavirus/2019-ncov/community/election-polling-locations.html
6
Piper, Jessica, “Maine is seeing a historic number of absentee ballot requests ahead of the July election,” Bangor
Daily News (July 3, 2020), https://bangordailynews.com/2020/07/03/politics/maine-is-seeing-a-historic-number-ofabsentee-ballot-requests-ahead-of-the-july-election/
7
Piper, Jessica, “Maine cities and towns push absentee voting for July election reshaped by virus,” Bangor Daily
News (May 17, 2020) https://bangordailynews.com/2020/05/17/politics/maine-cities-and-towns-push-absenteevoting-for-july-election-reshaped-by-virus/
12
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50.
With respect to the general election in Maine, the danger is heightened
because many polling places will be closed, in part due to staffing shortages,
resulting in longer lines and denser crowds at the open polling places.
51.
Consolidation of polling places is likely in Maine due to COVID-19,
creating longer lines and more people at one location. 9
52.
At the polling places that remain open, it will be more difficult for
blind individuals, including Plaintiffs, to ensure they remain six feet apart from
other individuals, as is recommended by the CDC in order to stem the spread of
COVID-19—especially if such individuals need assistance to cast their ballot. Nor
can blind people as readily confirm whether others around them are wearing
masks.
53.
While blindness on its own is not a risk factor for COVID-19, people
with vision disabilities have increased risk of exposure due to their disabilities.10
People with vision disabilities often rely on touch more than sighted people and
therefore are at heightened risk of touching surfaces with the virus.
8
Teran Powel, “40 Coronavirus Cases In Milwaukee County Linked To Wisconsin Election, Health Official Says,”
WUWM 89.7 (Apr. 24, 2020), https://www.wuwm.com/post/40-coronavirus-cases-milwaukee-countylinkedwisconsin-election-health-official-says#stream/0
9
Edwards, Keith, “Augusta voting to be consolidated at Civil Center: Social distancing requirements and a lack of
poll workers have prompted the city to temporarily move away from ward voting,” Kennebec Journal (June 9,
2020), https://www.centralmaine.com/2020/06/09/augusta-voting-to-be-consolidated-at-augusta-civic-center/
10
See COVID-19 and Blindness: Staying Safe and How to Help, World Services for the Blind,
https://www.wsblind. org/blog/2020/3/26/covid-19-and-blindness-staying-safe-and-how-to-help (last visited July 23,
2020).
13
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54.
The journey to a polling place also is more hazardous for blind
individuals than it is for sighted individuals. Because Plaintiffs cannot drive, they
disproportionately rely on car pool or public transportation, which necessarily
brings them into close proximity with others.
55.
The individual Plaintiffs in this action are all Maine residents who are
registered to vote in their municipalities. Three of the four have underlying medical
conditions that place them at high risk if they contract COVID-19. All are blind or
visually impaired. And all wish to vote in November 3, 2020, general election and
future elections privately, independently, and safely by absentee ballot.
56.
Like many Maine residents, the Plaintiffs wished to follow the advice
of the Governor and Secretary of State and vote by absentee ballot for the July 14,
2020, state primary and local elections. The Plaintiffs each contacted their Town or
City Clerk and the Secretary of State and requested an electronic, accessible
absentee ballot in that election. All were denied because Defendants failed to
ensure that Maine’s Absentee Ballots are accessible to them.
Lynn Merrill of Augusta, Maine
57.
Plaintiff Lynn Merrill resides in Augusta, Maine.
58.
Ms. Merrill has a physical impairment, blindness, and is substantially
limited in the major life activity of seeing. She uses a guide dog and assistive
technology including text to speech software on her computer and iPhone.
14
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59.
Ms. Merrill is registered to vote in Augusta, Maine. She is qualified to
vote in federal, state, and local elections.
60.
Ms. Merrill intends to vote in the general election on November 3,
2020. But because of the COVID-19 pandemic, she does not intend to go to her
local polling place in order to vote. In addition to being blind, Ms. Merrill is an
older adult with an underlying medical condition that puts her at increased risk for
severe illness from COVID-19. In addition, she does not drive, and travelling to
the polls would place her in close proximity with others. Therefore, she wishes to
vote by accessible absentee ballot for the November 3, 2020, general election, and
she would like to have this option for future federal, state, and local elections.
61.
The only absentee ballots offered to Maine residents who are not
service members or overseas citizens are paper ballots. Paper ballots are not
accessible to Ms. Merrill because she is blind.
62.
Voting electronically would be an effective accommodation for Ms.
Merrill. She would be able to vote through a universal, accessible balloting
platform that is readily available from Democracy Live or other ballot-marking
companies. In addition, Ms. Merrill is able to review, complete, and return fillable
PDF documents on her computer. She would be independently and privately able
to vote by electronic absentee ballot using the JAWS software she already has on
her computer to review and complete her choices. Voting electronically would
15
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avoid her having to have assistance of a sighted individual to read the printed text
on the ballot, to make her selections, and to return the ballot to her City Clerk.
63.
Ms. Merrill contacted then-Augusta City Clerk Tracy Roy on or about
June 15, 2020, June 26, 2020, June 28, 2020, and June 29, 2020, to request
reasonable modification, to vote with an electronic ballot that is accessible to her.
In her communications with Ms. Roy, Ms. Merrill requested an accessible absentee
ballot for the July 14, 2020 election and other upcoming elections, and explained
that she would like to vote absentee because she is blind and has underlying
conditions that place her at higher risk if she votes at the polls.
64.
On Monday, June 29, 2020, Ms. Roy contacted Ms. Merrill by
telephone and stated that, regarding absentee ballots, Ms. Merrill could have two
people she trusts assist her with completing the paper absentee ballot. Ms. Merrill
replied to Ms. Roy that the method she was suggesting would not allow the privacy
to which every citizen is entitled. Ms. Roy simply repeated that they [the voting
assistants] would be people that Ms. Merrill trusts. At the end of the conversation,
Ms. Roy verbally confirmed that there is no accommodation for private absentee
voting for individuals who are blind.
65.
Ms. Merrill is an active member and an officer in the American
Council of the Blind (“ACB”), Maine Chapter. On or about June 15, 2020, the
ACB President of the Maine chapter emailed a letter (authored by Ms. Merrill) to
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the Defendants Dunlap and the Department of the Secretary of State. In the letter,
the ACB President expressed concern that voters with disabilities do not have
equal access and opportunity to vote independently and privately via absentee
ballot in Maine. The email also requested the Secretary of State’s plan for
providing accessible absentee voting for people who are blind. The ACB never
received a response from Defendant Sec. Dunlap or anyone at the Secretary of
State’s Office.
66.
Ms. Merrill wants to vote by absentee ballot in the general election on
November 3, 2020, and in future federal, state, and local elections. She seeks
declaratory and injunctive relief from the Court to allow her to vote independently,
privately, and safely via absentee, electronic ballot.
Dr. Nicholas Giudice of Bangor, Maine
67.
Plaintiff Nicholas Giudice, Ph.D. resides in Bangor, Maine.
68.
Dr. Giudice has a physical impairment, blindness, or abnormal vision
loss. Dr. Giudice is substantially limited in the major life activity of seeing. He
uses a guide dog and assistive technology including text to speech software on his
computer and iPhone.
69.
Dr. Giudice is registered to vote in Bangor, Maine. He is qualified to
vote in federal, state, and local elections in Bangor.
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70.
Dr. Giudice intends to vote on November 3, 2020. But because of the
COVID-19 pandemic, he does not intend to go to his local polling place in order to
vote.
Rather, he would like to vote safely, privately, and independently by
absentee ballot. Because he is blind, Dr. Giudice does not drive and must take
public transportation or arrange for a ride to get to the polls, which places him in
close proximity with others during the pandemic and is an inconvenience.
Therefore, Dr. Giudice wishes to vote by accessible, electronic absentee ballot for
the November 3, 2020, general election and he would like to have this option for
future federal, state, and local elections.
71.
The only absentee ballots offered to Maine residents who are not
service members or overseas citizens are paper ballots. Paper ballots are not
accessible to Dr. Giudice because he is blind.
72.
Voting electronically would be an effective accommodation for Dr.
Giudice. Dr. Giudice would be able to vote through a universal, accessible
balloting platform that is readily available from Democracy Live or other ballotmarking companies. In addition, Dr. Giudice is able to review, complete, and
return fillable PDF documents on his computer. He would be independently and
privately able to vote by electronic absentee ballot using the JAWS software he
already has on his computer, or a similar program, to review and complete his
choices. Voting electronically would avoid his having to have assistance of a
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sighted individual to read the printed text on the ballot, to make his selections, and
to return the ballot to his City Clerk.
73.
Therefore, Dr. Giudice emailed Bangor City Clerk Lisa Goodwin and
the Secretary of State’s Office on July 6, 2020, to request an accessible electronic
absentee ballot. Dr. Giudice stated in the email that he is blind and that he would
like to avoid going to the polls during the pandemic, and he requested to vote
absentee in the Primary and Special Referendum Election on July 14, 2020, and the
General Election on November 3, 2020. He also indicated that he cannot access a
paper absentee ballot, and requested reasonable modification, an accessible
electronic ballot, or another process that would allow him to vote privately and
independently without going to the polls.
74.
On July 7, 2020, Kristen Schulze Muszynski, Spokesperson for the
Department of the Secretary of State, responded by email. Ms. Muszyniski
indicated that those who cannot mark a paper ballot may use the ExpressVote
system at the polling place. Defendants provided no option for an accessible
absentee ballot. Defendant Goodwin did not respond to Dr. Giudice’s request for
reasonable modification.
75.
Defendants denied Dr. Giudice’s request to vote privately and
independently via absentee ballot in the July 14, 2020, and future elections.
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76.
Dr. Giudice wants to vote by absentee ballot in the general election on
November 3, 2020, and in future federal, state, and local elections. He seeks
declaratory and injunctive relief from the Court to allow him to vote
independently, privately, and safely via absentee, electronic ballot.
Pauline Lamontagne, Esq., of Portland, Maine
77.
Plaintiff Pauline Lamontagne, Esq., resides in Portland, Maine.
78.
Ms. Lamontagne has a physical impairment, blindness, or abnormal
vision loss. Ms. Lamontagne is substantially limited in the major life activity of
seeing. She uses a guide dog, a white cane and assistive technology including text
to speech software on her computer and iPhone.
79.
Ms. Lamontagne is registered to vote in Portland, Maine. She is
qualified to vote in federal, state, and local elections in Portland.
80.
Ms. Lamontagne intends to vote in the general election on November
3, 2020. But because of the COVID-19 pandemic, she does not intend to go to her
local polling place in order to vote. In addition to being blind, Ms. Lamontagne is
over 65 years old with an underlying medical condition that puts her at increased
risk for severe illness from COVID-19. Also, neither she nor her husband drives,
and travelling to the polls would place her in close proximity with others.
Therefore, she wishes to vote by accessible absentee ballot for the November 3,
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2020, general election, and she would like to have this option for future federal,
state, and local elections.
81.
The only absentee ballots offered to Maine residents who are not
service members or overseas citizens are paper ballots. Paper ballots are not
accessible to Ms. Lamontagne because she is blind.
82.
Voting electronically would be an effective accommodation for Ms.
Lamontagne. She would be able to vote through a universal, accessible balloting
platform that is readily available from Democracy Live or other ballot-marking
companies. In addition, Ms. Lamontagne is able to review, complete, and return
fillable PDF documents on her computer. She would be independently and
privately able to vote by electronic absentee ballot using the JAWS software she
already has on her computer to review and complete her choices.
Voting
electronically would avoid her having to have assistance of a sighted individual to
read the printed text on the ballot, to make her selections, and to return the ballot to
her City Clerk.
83.
Therefore, on or about July 2, 2020, Ms. Lamontagne emailed
Defendant Portland City Clerk, Katherine Jones, and the Defendant Secretary of
State’s Office to request reasonable modification, to vote absentee via an electronic
ballot that is accessible to her. In her email, Ms. Lamontagne disclosed that she is
blind and requested “an electronic accessible ballot or another process which
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would allow me to vote independently and privately.” She further stated that the
“paper ballot necessitates my using an aide; therefore, it is not private, nor am I
completing the ballot independently. Is an accessible electronic ballot available or,
for example, a touch tone telephone available with the candidates and referendum
issues?” She indicated that she is planning to vote in the primary election and also
the general election in November.
78.
On July 2, 2020, Patricia Condon, Director, Constituent Services of
the Secretary of State’s Office, replied to Ms. Lamontagne via email that “the
municipal clerk from South Portland [sic] should advise about their accessible
voting system, which is a ballot marking device at the polling place. Thank you
again for including our office regarding your inquiry.”
79.
The Secretary of State’s Office did not provide Ms. Lamontagne with
a viable option that would allow her to vote independently and safely from her
home via absentee ballot. Rather, the only option given was a ballot marking
device at the polls.
80.
On or about July 7, 2020, Ms. Lamontagne called Defendant Jones
because she had not heard back from her. Defendant Jones told Ms. Lamontagne
that only a paper ballot was available for absentee voting. Ms. Lamontagne shared
that she is disappointed. Ms. Lamontagne, an attorney, noted that it is her
understanding that West Virginia and New York have processes for people with
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disabilities to be able to vote by accessible absentee ballots both privately and
independently. She questioned why this was not possible in Maine. Defendant
Jones did not provide an explanation.
81.
Ms. Lamontagne did not wish to go to the polls for the July 14, 2020,
statewide primary and local election due to her concern about the coronavirus. But
she wanted her vote to count, so she was forced to choose between going to the
polls and risking exposure to COVID-19 or voting absentee by paper ballot
without privacy or independence. Ms. Lamontagne voted by absentee ballot with
and her ballot was cast neither privately nor independently.
82.
Ms. Lamontagne wants to vote by absentee ballot in the general
election on November 3, 2020, and in future federal, state, and local elections. She
seeks declaratory and injunctive relief from the Court to allow her to vote
independently, privately, and safely via absentee, electronic ballot.
Cheryl Peabody of Winslow, Maine
83.
Plaintiff Cheryl Peabody resides in Winslow, Maine.
84.
Ms. Peabody has a physical impairment, blindness or abnormal vision
loss. Ms. Peabody is substantially limited in the major life activity of seeing.
85.
Ms. Peabody is registered to vote in Winslow, Maine. For past
elections, she has gone to her polling place in order to cast her vote, using
accessible voting machines, in person.
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86.
Ms. Peabody intends to vote in the general election on November 3,
2020. But because of the COVID-19 pandemic, she does not intend to go to her
local polling place in order to vote. In addition to being legally blind, Ms. Peabody
is at increased risk for severe illness from COVID-19. Therefore, she wishes to
vote by accessible absentee ballot for the November 3, 2020, general election, and
she would like to have this option for future federal, state, and local elections.
87.
The only absentee ballots offered to Maine residents who are not
service members or overseas citizens are paper ballots. Paper ballots are not
accessible to Ms. Peabody.
88.
Voting electronically would be an effective accommodation for Ms.
Peabody. She would be able to vote through a universal, accessible balloting
platform that is readily available from Democracy Live or other ballot-marking
companies. In addition, Ms. Peabody is able to review, complete, and return
fillable PDF documents on her computer. She would be independently and
privately able to vote by electronic absentee ballot using the screen magnification
she already has on her computer to review and complete her choices. Voting
electronically would avoid her having to have assistance of a sighted individual to
read the printed text on the ballot and to make her selections.
89.
On June 30, 2020, Ms. Peabody emailed Winslow Town Clerk and
Registrar of Voters, Lisa Gilliam. Ms. Peabody wrote that she is a registered voter
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in Winslow, that she is legally blind, and that she requests an accessible absentee
ballot. She also disclosed that she is an older adult with an underlying medical
condition that places her at increased risk for a severe illness if she contracts
COVID-19.
90.
On July 1, 2020, Ms. Gilliam replied to Ms. Peabody’s request for an
accessible, electronic absentee ballot as follows:
Late yesterday afternoon I spoke with the Elections Division of the Secretary
of State’s Office to find out if they have an alternative way for voters to cast
their vote other than by paper ballot; unfortunately they do not have a
different method. If you would like I can mail you an absentee ballot and on
the return envelope there is a place for your signature and for the signature
of an aide who would assist by reading and/or marking the ballot for you.
91.
Ms. Peabody wants to vote independently and privately. She does not
wish to have an assistant fill in her choices for her.
92.
Defendants denied Ms. Peabody’s request for modification to vote
privately and independently via absentee ballot in the July 14, 2020, and future
elections, and failed to have an absentee voting option that is accessible to voters
with disabilities. Ms. Peabody wants to vote absentee in the upcoming general
election on November 3, 2020, and in future federal, state, and local elections,
independently and privately. Ms. Peabody seeks declaratory and injunctive relief
from the Court to allow her to vote independently and privately via absentee ballot.
Defendants Were On Notice of the Inaccessible Absentee Voting Program in
Maine
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93.
On Friday, September 27, 2019, Mark Riccobonno, President of the
National Federation of the Blind, emailed Secretary Dunlap a detailed letter “to
remind you of your obligation, as required by federal law and recent court
decisions, to provide voters with print disabilities an accessible way to privately
and independently mark an absentee ballot.” The letter outlined the State of
Maine’s obligation under Title II of the ADA and Court decisions including Nat’l
Fed’n of the Blind v. Lamone, 813 F.3d 494, 506 (4th Cir. 2016), provided
guidance regarding accessible absentee ballot-marking systems for use in U.S.
elections, and offered the expertise of the NFB to help the State of Maine in
developing an accessible ballot-marking tool.
94.
NFB did not receive a response from Defendants Sec. Dunlap or the
Maine Department of the Secretary of State.
95.
On or about June 14, 2020, the President of the Maine Chapter of the
American Council of Blind (“ACB”), whose group includes the Plaintiffs, emailed
a letter to Defendant Sec. Dunlap. The letter expressed concern about the lack of
access to absentee ballots for voters with disabilities, and requested Maine’s plan
for making the absentee voting process accessible to blind voters.
96.
ACB did not receive a response from Defendant Sec. Dunlap
Defendants Sec. Dunlap or the Maine Department of the Secretary of State.
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97.
On or about June 30, 2020, Disability Rights Maine counsel for
Plaintiffs spoke with Defendant Sec. Dunlap and requested accessible absentee
ballots for the upcoming primary election and the general election in November.
Defendant Sec. Dunlap indicated that providing electronic accessible absentee
ballots would definitely not be possible for the July 14, 2020 election, and “there
are no guarantees for the general election.” On or about July 2, 2020, counsel for
Plaintiffs provided a follow-up letter to Defendant Sec. Dunlap requesting that he
reconsider, given the fundamental rights at stake and the fact that other states have
accomplished providing accessible absentee ballots for voters with disabilities.
98.
Defendants all refused the individual requests for reasonable
modification from each of the Plaintiffs for the July 14, 2020 Primary Election and
the November 3, 2020 Presidential Election, and have failed to ensure that Maine’s
Absentee Ballot Program will accommodate them and other blind voters for future
elections.
Overview of Current Absentee Voting Procedures in Maine
99.
The State of Maine offers the option of absentee voting to any
registered voter who requests an absentee ballot for any reason. 11
100. Absentee voting allows registered voters to cast a ballot from their
home without having to go to a public voting place on Election Day.
11
21-A M.R.S. § 751.
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101. Absentee ballots can be requested by the voter
- in writing by mail, in person or by facsimile;
- by telephone; and
- by electronic means authorized by the Secretary of State.12
102. To request a ballot electronically, a voter may access an application
for an absentee ballot on Maine.gov, a secure online service provided by the
Secretary of State. 13
103. The Application for Absentee Ballot on the Secretary of State’s
website is a fillable or blank PDF request form that the voter can complete online
and submit to the Secretary of State, Division of Elections, or print, fill out, and
submit. 14
104. After an absentee ballot is requested online, the Secretary of State’s
Office forwards the request for an absentee ballot to the voter’s town or city clerk.
The clerk’s office then sends paper ballot(s) to the voter via U.S. Mail.
105. Once the paper ballot is received by the voter, he or she must
complete the following steps in order to vote:
A. Sign the return envelope in the voter’s signature line on the outer flap of
the envelope.
12
21-A M.R.S. § 753-A.
The online application can be found at https://www.maine.gov/cgi-bin/online/AbsenteeBallot/index.pl
14
The online application can be found at https://www.maine.gov/online/AbsenteeBallot/ABS-2020-07-14.pdf
13
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B. To make choices on the ballot, the voter must fill in the oval next to their
choice completely, using a ballpoint pen with with black or blue ink.
C. When finished voting, refold the ballots and seal them in the return
envelope.
D. Check that the voter has signed the envelope.
E. Return the ballot to the town clerk.
106. This process of voting by absentee ballot is wholly inaccessible to
Plaintiffs and other individuals with print disabilities.
107. Plaintiffs are unable to independently sign in the voter’s signature line
on the outer flap of the envelope; they cannot independently and privately make
choices on the paper ballot; they cannot fill out the choices with a blue or black ink
pen. Plaintiffs cannot see to discern which ballots to place in which envelopes.
They cannot double check to ensure they signed the envelope, as the Secretary of
State’s Office advises voters to do. The entire process of voting by absentee ballot
is inaccessible to Plaintiffs and all individuals who are blind or have print
disabilities.
108. If a voter is unable to sign the declaration, Maine law allows a witness
to sign the “return” envelope and affirm the voter was unable to sign his or her
own name, and that the witness helped the voter complete his or her ballot.
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109. Because Plaintiffs must rely on the assistance of another, they cannot
vote privately and independently using absentee ballots.
110. By forcing Plaintiffs to seek out third party assistance, the absentee
and mail-in ballots system jeopardizes the safety of Plaintiffs and other blind
individuals during the COVID-19 pandemic.
111. Requiring Plaintiffs to locate at least two individuals whom they trust
to assist them in voting places a barrier on Plaintiffs’ right to vote independently,
freely, and secretly. This would also require individuals who are blind to break
social distancing guidelines, if, for example, they don’t have one or two trusted
individuals already as part of their household.
112. And although Plaintiffs could choose to vote in person at the general
election on November 3, 2020, doing so may put their health (or even their lives) at
risk. Plaintiffs are entitled to equal access to an absentee or mail-in ballot to vote
privately and independently, as sighted individuals can.
113. Because Maine’s Absentee Voting program is not accessible to
Plaintiffs, they are unable to exercise their fundamental, Constitutional right to
vote by secret ballot.15
114. Making Maine’s UOCAVA absentee ballot available to all blind
voters is one way that Defendants could have provided modification for the July
15
ME Const. art. II, § 5.
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14, 2020, primary, even if it was only a temporary solution to this longstanding
problem. Defendants were made aware of this option, but failed to implement it.
They must do better for the November 3, 2020 Presidential Election and beyond.
Maine Can Easily Make Its Absentee Voting Program Accessible
115. Technology is available and in use across the country that allows
voters with disabilities to register and vote and request, receive, fill out, and return
their absentee ballots electronically.
116. Several third party vendors provide online or electronic ballot
marking systems. These include Prime III, Democracy Live, Five Cedars,
Dominion Voting, and Voting Works by Enhanced Voting. Maryland has designed
and implemented its own online ballot marking system.
117. For example, Democracy Live offers the Omniballot which is an
electronic, fully accessible absentee and UOCAVA ballot solution. Most recently,
the states of MI, PA, DE, VT OH, FL contracted with Democracy Live to set up
their fully accessible, ADA-compliant at-home absentee voting portals. Democracy
Live, for example, is currently available to provide its services to Maine in time for
the November 3, 2020 election.
117. Maryland makes its ballot marking software available to other states
for free, and both Prime III and Voting Works are also available free of charge.
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118. For forms (other than the ballot), related to the absentee voting
program, Defendants need simply provide the paperwork in accessible, fillable
PDFs, and allow applicants to use electronic signatures and submit the forms over
email. Making such forms accessible is easily done in Adobe. Such forms can also
be securely signed on the computer.
119. Several states have recently changed their absentee ballot procedures
to make them accessible to voters with print disabilities. Some of these changes
have come voluntarily, others in response to court orders.
120. For example, pursuant to a court-ordered stipulation as a temporary
measure for its imminent June 23, 2020, primary, New York allowed voters to
request accessible absentee ballots by email, receive the ballots and envelope
template over email, mark the ballots on their computers, then print and return
them by mail. New York accepted typed or electronic signatures for the application
for an absentee ballot and a signature anywhere on the envelope returning the
ballot.16
121. In May 2020, Michigan voluntarily entered into a consent decree
requiring it to “acquire a remote accessible vote by mail system (RAVBM) that
16
Stipulation of Settlement & Order for the Withdrawal of the Motion for Temporary Restraining Order &
Preliminary Injunction, Hernandez v. N.Y. State Bd. Of Elections, Case No. 1:20-cv-04003-LJL (S.D.N.Y. June 2,
2020), ECF No. 38.
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shall allow voters with print disabilities to review and mark vote by mail ballots
electronically, privately and independently in time for its August 2020 election.”17
122. On July 1, 2020, Delaware announced the relaunch of its pilot
accessible absentee voting program through Democracy Live for its July 7, 2020,
election. The Delaware program offers electronic delivery of accessible absentee
ballots, a ballot marking tool, and submission by voter choice of mail, fax, or email
for military and overseas voters as well as voters with disabilities. 18
123. The Maine UOCAVA (Uniformed and Overseas Citizens Absentee
Voting Act) system already allows uniformed and overseas voters to get the ballot
through the State’s online service as a printable PDF.
124. In 2015, Maine Legislature passed an Act to explicitly allow for the
use of the internet to provide a ballot-marking system or software that is used for
voters with disabilities, uniformed service voters, or overseas voters to mark a
ballot and transmit the marked ballot online. 19
125. Voters in Maine and UOCAVA voters may apply for absentee ballots
online.20
17
Consent Decree, Powell v. Benson, Case No. 2:20-cv-11023-GAD-MJH (E.D. Mich. May 19, 2020), ECF No. 31.
Press Release, Del. Dep’t of Elections, Accessible Voting Available for July 7th Presidential Primary (July 1,
2020), https://news.delaware.gov/2020/07/01/accessible-voting-available-forjuly-7th-presidential-primary .
19
21-A MRSA §§ 809-A (1), (3). See LD 1449, An Act to Amend the State Election Laws, online at
file:///D:/Blind%20voters%20-20Acessible%20Absentee%20Ballot/Research/EM%20Research/Maine%20127%20%20SP%20552%20item%201.pdf (allowing for the use of the Internet to provide a ballot-marking device or
software that is used for voters with disabilities, uniformed service voters or overseas voters to mark a ballot and
transmit the marked ballot online.”).
20
21-A M.R.S. §§ 753-A and 781-A
18
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126. UOCAVA voters may designate electronic or mail delivery of their
absentee ballot.21 All other Maine voters may only receive a paper absentee ballot.
127. UOCAVA voters may receive their UOCAVA absentee ballot sent
electronically to them by the Secretary of State.22 Voters who opt for electronic
transmission of their ballot are emailed instructions on how to log into the online
system to receive a PDF version of their absentee ballot.23
128. UOCAVA voters may return their completed UOCAVA ballots
electronically to the Secretary of State to be counted. 24
129. Using their screen reader software or screen magnification, Plaintiffs
would be able to privately and independently vote with accessible, fillable PDF
ballots provided to them electronically. Plaintiffs would also be able to vote with a
fully accessible ballot provided by a ballot marking system. Plaintiffs are unable to
vote independently and privately vote with the paper absentee ballots currently in
use in Maine.
130. According to public records, Maine has received $3,512,764 in federal
Help American Vote Act, 52 U.S.C. § 20901 et seq (“HAVA”) funds25 and
21
29-250 C.M.R. Ch. 525-2 § 2 (2010).
21-A M.R.S. § 783 (4) (authorizing the electronic transmission of absentee ballots to uniformed service voters or
overseas voters); __ C.M.R. 29-250 Ch. 525-2 § 2(1) (2010) (state absentee ballots issued by the Secretary of
State).
23
From the Maine Department of the Secretary of State, Frequently asked Questions: Uniformed Service and
Overseas (UOCAVA)Voters, found online at file:///D:/Blind%20voters%20%20Acessible%20Absentee%20Ballot/Research/EM%20Research/Maine%20127%20%20SP%20552%20item%201.pdf
24
21-A M.R.S. § 783 (5) (authorizing the electronic receipt of voted absentee ballots from uniformed service voters
or overseas voters by a method authorized by the Secretary of State); __ C.M.R. 29-250 Ch. 525-3 § 2(2) (2010)
(outlining procedures for receiving completed ballots by electronic means).
22
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$3,299,827 in HAVA emergency funds 26 under the Coronavirus Aid, Relief, and
Economic Security Act, Pub. L. No, 116-136 (2020) (CARES Act), in 2020, for
the purpose of conducting elections safely during the pandemic. These funds could
and should be used to resolve this issue.
131. Defendants have not made their absentee voting program accessible to
print-disabled individuals, including Plaintiffs, who wish to exercise their right to
vote in the November 3, 2020, election, and future elections, but do not wish to
risk their health, privacy, or independence to do so.
132. Defendants’ failure to meet their obligations to provide Plaintiffs with
an equal opportunity to vote absentee constitutes discrimination against them, and
is an ongoing and continuous violation of the ADA and its implementing
regulations, Section 504 and the Maine Human Rights Act and its implementing
regulations.
FIRST COUNT
Violation of Title II of the Americans with Disabilities Act
42 U.S.C. §§ 12131-12134
133. Plaintiffs repeat and reallege each and every allegation in the
foregoing paragraphs as if fully incorporated herein.
25
26
https://www.eac.gov/payments-and-grants/2020-hava-funds
https://www.eac.gov/payments-and-grants/2020-cares-act-grants
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134. Title II of the ADA guarantees qualified individuals an equal
opportunity to access the benefits of the services, programs, or activities of a public
entity. 42 U.S.C. § 12132.
135. Title II mandates 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, or activities of a public entity, or be subjected to
discrimination by any such entity.” Id.
136. In providing aids, benefits, or services, public entities may not
“[a]fford a qualified individual with a disability an opportunity to participate in or
benefit from the aid, benefit, or service that is not equal to that afforded others,”
nor may public entities provide qualified individuals with disabilities “an aid,
benefit, or service that is not as effective in affording equal opportunity” to gain
the same result or benefit as provided to others. 28 C.F.R. § 35.130(b)(1)(ii)-(iii).
137. Public entities must make reasonable modifications to their policies,
practices, and procedures when necessary to avoid discrimination against
individuals with disabilities. Id. § 35.130(b)(7)(i).
138. Furthermore, public entities “shall take appropriate steps to ensure
that communications with applicants, participants, members of the public, and
companions with disabilities are as effective as communications with others,” and
“shall furnish appropriate auxiliary aids and services where necessary to afford
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individuals with disabilities, including applicants, participants, companions, and
members of the public, an equal opportunity to participate in, and enjoy the
benefits of, a service, program, or activity of a public entity.” Id. § 35.160.
139. To be effective, “auxiliary aids and services must be provided in . . .
such a way as to protect the privacy and independence of the individual with a
disability.” Id. § 35.160(b)(2).
140. Auxiliary aids and services include “screen reader software;
magnification software; optical readers; … accessible electronic and information
technology; or other effective methods of making visually delivered materials
available to individuals who are blind or have low vision.” Id. § 35.104.
141. Because they are blind, Plaintiffs are individuals with disabilities
protected by the ADA. See 42 U.S.C. § 12102; 28 C.F.R. § 35.108.
142. Plaintiffs are registered to vote in Maine and intend to vote in the
November 3, 2020, election, and other future elections. Plaintiffs are qualified to
receive voting services from Defendants and are entitled to the protections afforded
under the ADA. See 42 U.S.C. § 12131(2).
143. Organizational Plaintiff DRME is statutorily authorized to represent
individuals with disabilities under the ADA.
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144. Defendant Sec. Dunlap heads the Department of State. The
Department of State is a public entity subject to Title II of the ADA. See 42 U.S.C.
§ 12131(1).
145. Defendants City and Town Clerks/Registrars of Voters Kelly
Gooldrup, Goodwin, Jones, and Gilliam each operate the voting programs in the
local governments where they are employed including the Cities of Augusta,
Bangor, and Portland, and the Town of Winslow. Defendants Augusta, Bangor,
Portland, and Winslow, and the Town and City Clerks (in their official capacities)
that run elections in these municipalities are public entities subject to Title II of the
ADA. 42 U.S.C. § 12131(1).
146. Voting by absentee or mail-in ballot is a service, program, or activity
provided by Defendants.
147. Defendants’ absentee voting programs discriminate against Plaintiffs
because these individuals cannot register to vote absentee, apply for an absentee
ballot, or vote via absentee ballot secretly and independently, as other voters can.
148. Defendants have also discriminated against Plaintiffs voters by failing
to make the instructions on their website for voting during the pandemic
accessible.
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149. Defendants have failed to provide Plaintiffs with an opportunity to
vote by absentee or mail-in ballot that is equal to the opportunity provided to other
voters that do not have disabilities.
150. Defendants could make reasonable modifications to their absentee and
mail-in ballot voting process by offering accessible online voting to Plaintiffs.
151. Defendants have failed to afford Plaintiffs auxiliary aids and services
necessary to afford them effective communication in the absentee and mail-in
voting process.
152. Defendants have excluded and continue to exclude Plaintiffs and other
voters who are print-disabled from participation in, and denied them the benefits
of, or otherwise discriminated against them in, their absentee voting programs.
153. As a result of Defendants’ actions and inactions, Plaintiffs and those
similarly situated have suffered and will continue to suffer irreparable harm. They
have suffered and continue to suffer from discrimination and unequal access to
Defendant’s programs, services, or activities. And in the absence of injunctive
relief, Plaintiffs and those similarly situated will be denied their right to vote by
absentee ballot privately and independently.
154. In light of COVID-19, and the rapidly approaching election in
November, Plaintiffs and other print-disabled voters are at imminent risk of
irreparable harm absent injunctive relief for the November 3, 2020, general
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election. Many print-disabled individuals do not have assistance in their homes to
complete paper forms and ballots and cannot seek assistance or vote in person due
to fears for their health. For that reason, Defendants’ actions and inactions may
prevent such individuals from voting in the general election.
155. Because of Defendants’ intransigence, Plaintiffs and other print
disabled individuals will face the unconscionable choice of either leaving their
homes in order to receive in-person assistance with voting at the closest polling
place— thereby facing the threat of severe illness or death—or staying home and
foregoing the right to vote privately and independently (if third-party assistance is
available), or foregoing the right to vote entirely (if it is not).
156. Defendants’ failure to meet their obligations to provide Plaintiffs and
print-disabled voters with an equal opportunity to vote by absentee or mail-in
ballot is an ongoing violation of the ADA and its implementing regulations. Unless
restrained from doing so, Defendant will continue to violate the ADA and to inflict
irreparable injuries for which Plaintiffs have no adequate remedy at law.
157. Plaintiffs are entitled to injunctive relief, including the requested
temporary restraining order, as well as reasonable attorney’s fees and costs.
SECOND COUNT
Violation of Section 504 of the Rehabilitation Act of 1973
29 U.S.C. 794 et seq.
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158. Plaintiffs repeat and reallege each and every allegation in the
foregoing paragraphs as if fully incorporated herein.
159. Plaintiffs Merrill, Giudice, Lamontagne, and Peabody are individuals
with disabilities who are registered and eligible to vote, and therefore are protected
by Section 504. Organizational Plaintiff DRME has members who are qualified
individuals with disabilities under Section 504. The Maine Department of the
Secretary of State receives federal financial assistance, and therefore is subject to
Section 504. 29 U.S.C. § 794. The Cities of Augusta, Bangor, and Portland, and
the Town of Winslow each receive federal financial assistance, and therefore are
subject to Section 504. Id. Individual Defendants are sued in their official
capacities as those responsible for carrying out the operations of Defendant
Secretary of State or the Cities of Augusta, Bangor, Portland the Town of
Winslow.
160. Section 504 mandates that “[n]o otherwise qualified individual with a
disability . . . 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. . . .” Id. § 794(a).
161. Section 504 defines “program or activity” to include “all of the
operations of . . . a department, agency, special purpose district, or other
instrumentality of a State or of a local government” or “the entity of such State or
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local government that distributes such assistance and each such department or
agency (and each other State or local government entity) to which the assistance is
extended, in the case of assistance to a State or local government[.]” Id. §
794(b)(1).
162. Such federally-funded entities may not, in providing aids, benefits, or
services, “[d]eny a qualified handicapped person the opportunity accorded others
to participate in the program or activity receiving Federal financial assistance.” 28
C.F.R. § 42.503(b)(1)(i).
163. Such federally-funded entities must also “insure that communications
with their . . . beneficiaries are effectively conveyed to those having impaired
vision and hearing,” id. § 42.503(e), and, if the entity has 15 or more employees,
must “provide appropriate auxiliary aids to qualified handicapped persons with
impaired sensory, manual, or speaking skills where a refusal to make such
provision would discriminatorily impair or exclude the participation of such
persons in a program or activity receiving Federal financial assistance,” id. §
42.503(f).
164. Defendant Sec. Dunlap is the Secretary of the Maine Department of
State, which is an agency or instrumentality of the State of Maine that receives
federal financial assistance, and thereby is subject to the requirements of Section
504.
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165. Defendants Gooldrup, Goodwin, Jones and Gilliam are the Town
Clerks and Registrars of Voters of the municipalities of Augusta, Bangor, Portland,
and Winslow, each of which respectively receive federal financial assistance, and
thereby is subject to the requirements of Section 504.
166. The absentee voting program and the administration of the programs
are a service, program, or activity provided by Defendants.
167. Plaintiffs each have substantial limitations in the major life activity of
seeing are people with disabilities under Section 504.
168. Plaintiffs are registered to vote in Maine and are thus qualified
individuals with disabilities entitled to the protections of Section 504.
169. Organizational Plaintiff DRME has members who are qualified
individuals with disabilities under Section 504.
170. Organizational Plaintiff DRME is statutorily authorized to represent
individuals with disabilities under Section 504.
171. Defendants have failed and continue to fail to meet their obligations to
provide blind voters an opportunity to vote that is equal to the opportunity
provided to other voters.
169. In denying use of an accessible absentee voting program, Defendants
refuse to provide an auxiliary aid or service that would allow Plaintiffs equal
access to vote.
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170. Accordingly, Defendants have discriminated and continue to
discriminate against Plaintiffs with respect to their inaccessible absentee voting
program.
171. As a result of Defendants’ actions, Plaintiffs have suffered and will
continue to suffer irreparable harm; they have suffered and continue to suffer from
discrimination and unequal access to Defendants’ program, service, or activity of
voting by absentee ballot.
172. The technology to make their absentee voting program accessible is
readily available to Defendants and would allow independent, private absentee
registration and voting for print-disabled people.
173. In the absence of injunctive relief, including a preliminary injunction,
Defendants will continue to deny Plaintiffs their right to participate in their
absentee voting programs privately and independently in the November 3, 2020,
general election and in future elections.
174. Plaintiffs are entitled to injunctive relief, including a temporary
restraining order, as well as reasonable attorney’s fees and costs.
THIRD COUNT
Violation of the Maine Human Rights Act
5 M.R.S.A. 4551 et seq.
175. Plaintiffs repeat and reallege each and every allegation in the
foregoing paragraphs as if fully incorporated herein.
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176. The Maine Human Rights Act was enacted in 1971 to acknowledge
"the basic human right to a life with dignity" by preventing discrimination in
employment, housing or access to public accommodations as well as in the
extension of credit and in education. 5 M.R.S. § 4552.
177. Subchapter 5 of the Maine Human Rights Act guarantees every
individual “[t]he opportunity . . . to have equal access to places of public
accommodation without discrimination because of . . . disability.” 5 M.R.S. §
4591.
178. “Public accommodation” includes “an establishment of the State or
local government.” 5 M.R.S. § 4553 (8). Public accommodation means a public
entity or private entity that owns, leases, leases to or operates a place of public
accommodation; “public entity” in turn means state or local government or any
department, agency, special purpose district or other instrumentality of the State or
local government. 5 M.R.S. §§ 4553 (8-B); (8-C)(A),(B).
179. The MHRA declares it a denial of public accommodation “[f]or any
public accommodation or any person who is the operator, manager, agent or
employee of any place of public accommodation to directly or indirectly refuse,
discriminate against or in any manner withhold from or deny the full and equal
enjoyment to any person, on account of . . . disability . . .” 5 M.R.S. § 4592 (1);
94-348 C.M.R. Ch. 7, Sec.7.02 (A) (1997).
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180. In providing services, a public entity shall not deny or afford an
individual with a disability, or class of individuals, with an opportunity to
participate in or benefit from the aid, benefit, or service that is not equal to that
afforded others; nor may a public entity provide individuals with disabilities an aid,
benefit, or service that is not as effective in affording equal opportunity to gain the
same result or benefit as provided to others. 94-348 C.M.R. Ch. 7, Sec. 7.03 (A),
(B) (1997).
181. Public accommodations must make reasonable modifications to their
policies, practices, and procedures when necessary to avoid discrimination against
individuals with disabilities. Id. § 7.16 (A).
182. Furthermore, public accommodations “shall take those steps that may
be necessary to ensure that no individual with a physical or mental disability is
excluded, denied services, segregated or otherwise treated differently than other
individuals because of the absence of auxiliary aids and services.” Id. § 7.17 (A).
183. The term ‘auxiliary aids and services’ includes but is not limited to
screen reader software; magnification software; optical readers; . . . accessible
electronic and information technology; or other effective methods of making
visually delivered materials available to individuals who are blind or have low
vision; [a]cquisition or modification or equipment or devices; or other similar
services and actions. Id. §§ 7.17 (B)(2)-(4).
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184. A public accommodation “shall furnish appropriate auxiliary aids and
services where necessary to ensure effective communication with individuals with
physical or mental disabilities;” and “a public accommodation should consult with
individuals with disabilities whenever possible to determine what type of auxiliary
aid is needed to ensure effective communication.” Id. §§ 7.17(C)(1); 7.17(C)(1)(ii).
185. Finally, “[i]n order to be effective, auxiliary aids and services must be
provided in accessible formats, in a timely manner, and in such a way as to protect
the privacy and independence of the individual with a disability.” Id. §
7.17(C)(1)(ii).
186. As individuals with blindness, Plaintiffs have per se disabilities
pursuant to the Maine Human Rights Act, 5 M.R.S. § 4553(1)(B), and they are
substantially limited in the major life activity of seeing. 5 M.R.S. § 4553(1)(A)(1).
187. Plaintiffs are registered to vote in Maine and intend to vote in the
November 3, 2020, election, and all other upcoming elections. Each Plaintiff meets
the essential eligibility requirements to receive voting services from Defendants,
and each is therefore a qualified individual. 5 M.R.S. § 4551 (8-D).
188. Organizational Plaintiff DRME has members who are qualified
individuals with disabilities under the Maine Human Rights Act.
189. Organizational Plaintiff DRME is statutorily authorized to represent
individuals with disabilities under the Maine Human Rights Act.
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188. Defendant Sec. Dunlap heads the Maine Department of Secretary of
State, and is the operator, manager, agent or employee of the Department of the
Secretary of State. Defendant Town Clerks/Registrars of Voters Gooldrup of
Augusta, Goodwin of Bangor, Jones of Portland, and Gilliam of Winslow run
elections in their municipalities and are the operator, manager, agent, or employee
of the municipalities where they are employed. The Department of the Secretary of
State and the Cities of Augusta, Bangor, Portland and Winslow are each public
entities and public accommodations pursuant to Subchapter 5 of the Maine Human
Rights Act.
189. Defendants have violated the MHRA in the same manner as alleged
under Count 1, Violation of the ADA and Count 2, violation of Section 504. Flood
v. Bank of America Corp., 780 F.3d 1 (1st Cir. 2015) (holding that by closely
tracking federal employment discrimination law, the Maine Legislature intended
courts to look to federal case law to provide significant guidance in the
construction of the Maine Human Rights Act).
190. Plaintiffs are entitled to injunctive relief, including the requested
temporary restraining order or preliminary injunction and attorney’s fees and costs.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs request that this Court enter judgment in their
favor and award them the following relief:
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A preliminary and permanent injunction prohibiting Defendants from
violating the ADA, Section 504, and the Maine Human Rights Act, and requiring
Defendants to remedy their absentee ballot system by implementing a remote,
effective accessible absentee balloting system for Plaintiffs and those similarly
situated for the November 3, 2020, election and all future elections;
A declaration that Defendants have violated and continue to violate the
ADA, Section 504, and the Maine Human Rights Act;
Costs and attorney’s fees under 42 U.S.C. §§ 1988, 12133; 29 U.S.C. 795 §§
1988, 12133; 29 U.S.C. 795 §§ 505 (2), (b); 42 U.S.C. § 12205, 5 M.R.S. § 4614
and any other appropriate relief.
Such other relief as this Court deems proper and just.
Dated: September 8, 2020
/s/ Kristin L. Aiello_____________
Kristin L. Aiello, ME Bar No. 8071
Attorney for Plaintiffs
DISABILITY RIGHTS MAINE
160 Capitol Street, Suite 4
Augusta, Maine 04330
(207) 626-2774
kaiello@drme.org
Dated: September 8, 2020
/s/ Peter M. Rice______________
Peter M. Rice, ME Bar No. 7277
Attorney for Plaintiffs
DISABILITY RIGHTS MAINE
160 Capitol Street, Suite 4
Augusta, Maine 04330
(207) 626-2774
pmrice@drme.org
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CERTIFICATE OF SERVICE
I hereby certify that on this date, I electronically filed the foregoing
document entitled First Amended Complaint via the Court’s CM/ECF system,
which will serve a copy of same upon all counsel of record.
DATED: September 8, 2020
/s/ Kristin L. Aiello
Kristin L. Aiello, ME Bar No. 8071
Attorney for Plaintiffs
DISABILITY RIGHTS MAINE
160 Capitol Street, Suite 4
Augusta, Maine 04330
(207) 626-2774
kaiello@drme.org
50
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