Gary et al v. Virginia Department of Elections et al

Filing 1

Complaint against Virginia Department of Elections, Christopher Piper, Virginia Board of Elections, Robert H. Brink, John O'Bannon, Jamilah D. LeCruise ( Filing fee $ 400, receipt number 0422-7322040.), filed by Regina Root. (Attachments: #1 Document filed in error and removed re Civil Cover Sheet, #2 Civil Cover Sheet Additional Counsel pending pro hac vice, #3 Affidavit Financial Disclosure ACB-VA, #4 Affidavit Financial Disclosure NFBV)(Traubert, Steven) Modified text on 7/28/2020 (klau, ). (Attachment 1 replaced on 7/28/2020) (klau, ). Modified text on 7/28/2020 (klau, ).

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION

CARSHENA GARY, LORI SCHARFF,
REGINA ROOT, NAIM MUAWIA ABU-EL
HAWA, JOHN HALVERSON, THE
NATIONAL FEDERATION OF THE BLIND
OF VIRGINIA, and THE AMERICAN
COUNCIL OF THE BLIND
OF VIRGINIA,

Case No.

Plaintiffs,
v.
VIRGINIA DEPARTMENT OF ELECTIONS,
CHRISTOPHER PIPER, Commissioner of the
Virginia Department of Election in his official
capacity, THE VIRGINIA BOARD OF
ELECTIONS, ROBERT H. BRINK, Chair of
the Virginia Board of Elections in his official
capacity, JOHN O’ BANNON, Vice Chair the
Virginia Board of Election in his official
capacity, and JAMILAH D. LECRUISE,
Secretary of the Virginia Board of Elections, in
her official capacity,

COMPLAINT FOR
DECLARATORY AND INJUCTIVE
RELIEF

Defendants.

1

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
(Violation of the Americans with Disabilities Act, the Rehabilitation Act, and the Virginia Code)
INTRODUCTION
The right to cast an unimpeded and private vote is a cornerstone of our
democracy. That right is severely compromised for many eligible voters in Virginia who are
blind, have low vision, or whose manual dexterity is impaired and who wish to vote absentee, as
other Virginia voters can. Because the absentee ballot is provided only in hard copy and must be
read in standard print and filled in by hand, these Virginia citizens are unable to cast their ballot
privately and independently. Instead, they must reveal their choices to another person and hope
that person correctly records their vote. Otherwise, they must risk COVID-19 infection by
traveling to the polls to vote in person.
Defendants, the Virginia Department of Elections, its Commissioner, Christopher
E. Piper, the Virginia State Board of Elections, its Chairman, Robert H. Brink, its Vice Chair,
John O’Bannon, and its Secretary, Jamilah D. LeCruise, are able, and are obligated, to remedy
this inequality for the November 3, 2020 General Election.
Remote accessible vote-by-mail (“RAVBM”) tools are readily available to make
Virginia’s absentee ballots accessible. In fact, Defendants have secured a RAVBM system but
refuse to make it available to voters with print disabilities. Many other states have implemented
this technology and are providing accessible electronic ballots.
The ability to vote absentee is particularly critical now. The impact of the novel
coronavirus SARS-CoV-2 (“COVID-19”) pandemic in the United States is being felt by
Virginians in every sphere of life. Voting is no exception. In response to the pandemic, Virginia
has encouraged its residents to vote by absentee ballot to prevent gathering at the polls. As Gov.

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Ralph Northam urged, “Virginians should never have to choose between casting a ballot and
risking their health.”1
Plaintiffs Carshena Gary, Lori Scharff, Regina Root, Naim Muawia Abu-El
Hawa, and John Halverson (collectively “Plaintiffs”), and members of Plaintiff organizations
The National Federation of the Blind of Virginia (“NFBV”) and The American Counsel of the
Blind of Virginia (“ACB-VA”) are unable to independently mark a paper ballot due to their
disabilities, including blindness, low vision, and physical disabilities that impair manual
dexterity (collectively herein, “print disabilities”).
The Absentee Voting Program provides no alternatives to accommodate
individuals with print disabilities to enable them to vote privately and independently. As a result,
individuals with print disabilities must choose between their health and their right to vote
because they are forced to go to their local electoral board or polling place to privately and
independently mark their ballots.
Defendants are aware of the need to make the Absentee Voting Program
accessible and have not done so. Plaintiffs file this lawsuit to require Defendants to implement an
accessible Absentee Voting Program for all Virginia voters with disabilities so that they may cast
their ballots privately and independently in the upcoming General Election.

1

Whittney Evans, Lawsuit Tries to Stop Virginians From Using Coronavirus as Excuse to Vote
Absentee, Va.’s Home for Pub. Media (VPM) (May 21, 2020),
https://vpm.org/news/articles/13610/lawsuit-tries-to-stop-virginians-from-using-coronavirus-asexcuse-to-vote; PBS NewsHour, Virginia Governor Ralph Northam Gives Coronavirus Update,
YouTube (Apr. 24, 2020), https://www.youtube.com/watch?v=BQ-BX1fI-N0&t=320s.
3

JURISDICTION AND VENUE
Plaintiffs’ federal claims are brought 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.
This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.
§§ 1331 and 1343.
Declaratory and injunctive relief are authorized by 28 U.S.C. §§ 2201–2202.
This Court has supplemental jurisdiction over Plaintiffs’ state law claim pursuant
to 28 U.S.C. § 1367, as the state claim arises from the same set of operative facts as Plaintiffs’
federal claim.
Venue is appropriate in the Eastern District of Virginia the pursuant to 28 U.S.C.
§ 1391(b)(2) because a substantial part of the events and omissions that gave rise to Plaintiffs’
claims occurred within this District.
PARTIES
PLAINTIFF CARSHENA GARY is a blind individual who is registered to vote
in Virginia and is a member of NFBV. She resides in Capron, Virginia, and wants to vote
absentee privately and independently in the November General Election and future elections.
PLAINTIFF LORI SCHARFF is a blind individual who is registered to vote in
Virginia and is a member of ACB-VA. She resides in Waynesboro, Virginia, and wants to vote
absentee privately and independently in the November General Election and future elections.
PLAINTIFF REGINA ROOT, has a vision disability and manual dexterity
impairment and is registered to vote in Virginia. She resides in Williamsburg, Virginia, and

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wants to vote absentee privately and independently in the November General Election and future
elections.
PLAINTIFF NAIM MUAWIA ABU-EL HAWA is a blind individual who is
registered to vote in Virginia. He resides in Vienna, Virginia, and wants to vote absentee
privately and independently in the November General Election and future elections.
PLAINTIFF JOHN HALVERSON is a blind individual who is registered to vote
in Virginia. He resides in Arlington, Virginia, and wants to vote absentee privately and
independently in the November General Election and future elections.
PLAINTIFF NATIONAL FEDERATION OF THE BLIND OF VIRGINIA
(“NFBV”) is the Virginia affiliate of the National Federation of the Blind. NFBV is a 501(c)(3)
non-profit corporation made up of blind Virginians, their families, and friends. NFBV brings this
suit on behalf of its members.
NFBV advances the National Federation of the Blind’s goal of complete
integration of the blind into society on a basis of equity. This objective involves the removal of
legal, economic, and social barriers; the education of the public to new concepts concerning
blindness; and the achievement by all blind people of the right to exercise to the fullest their
individual talents and capabilities. It means the right of the blind to work along with their sighted
neighbors in the professions, common callings, skilled trades, and regular occupations, and to
participate in the organized civic and community activities of society on an equal basis. The
NFBV works in furtherance of its members’ right to participate fully and equally in all aspects of
their lives in Virginia, including in voting.
The NFBV is a membership organization with many blind and deaf-blind
members, including Carshena Gary, Naim Muawia Abu-El Hawa, and John Halverson, who are

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registered to vote in Virginia and wish to vote privately and independently, as their fellow
Virginians may, in the upcoming November 3, 2020 election by casting an accessible absentee
ballot.
PLAINTIFF AMERICAN COUNCIL OF THE BLIND OF VIRGINIA, INC.
(“ACB-VA”), is the Virginia State affiliate of the American Council of the Blind. ACB-VA is a
501(c)(3) non-profit corporation whose members include people who are blind, visually
impaired, deaf-blind, and sighted. ACB-VA brings this suit on behalf of its members.
ACB-VA’s purpose is to support and promote the educational, vocational, and
social advancement of blind persons. ACB-VA works in furtherance of its members’ right to
participate fully and equally in all aspects of their lives in Virginia, including in voting.
ACB-VA is a membership organization with many blind and deaf-blind members,
including Lori Scharff, who are registered to vote in Virginia and wish to vote privately and
independently, as their fellow Virginians may, in the upcoming November 3, 2020 election by
casting an accessible absentee ballot.
Many of the NFBV and ACB-VA’s members, including Carshena Gary, Lori
Scharff, and John Halverson, are particularly susceptible to the threat of COVID-19 and
therefore put themselves at heightened risk if they attempt to vote in person. Blind people are
more likely to have the kinds of chronic health conditions, such as diabetes or high blood
pressure,2 that increase their risk of contracting or suffering serious consequences from COVID19.3 NFBV and ACB-VA have members with such conditions.

2

Coronavirus 2019: People with Certain Medical Conditions, CDC,
https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medicalconditions.html (last visited July 21, 2020).
3

Vision Impairment and Chronic Health Conditions, CDC,
https://www.cdc.gov/visionhealth/living/index.html (last visited July 23, 2020).
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In addition, many of NFBV and ACB-VA’s blind members, including Plaintiffs
Carshena Gary, Naim Muawia Abu-El Hawa, Lori Scharff, and John Halverson, must rely on
public transportation services, which necessarily bring them into close proximity with others and
puts them at risk of contracting COVID-19.
NFBV and ACB-VA’s members, collectively and independently, face the threat
of imminent injury as a result of Defendants’ illegal conduct.
DEFENDANT VIRGINIA DEPARTMENT OF ELECTIONS (“VA DOE”) is the
State agency responsible for managing and supervising elections in Virginia.
VA DOE is responsible for ensuring that Virginia operates elections in
conformity with state and federal law, including Title II of the ADA and Section 504.
VA DOE is a public entity under Title II of the ADA.
VA DOE receives federal financial assistance in many forms, including, but not
limited to, direct grants of assistance to develop, certify, and maintain voting, such as $9.5
million for COVID-19 related expenses through the Coronavirus Aid, Relief, and Economic
Security Act, Pub. L. No. 116-136 (2020) (“CARES Act”),4 and $10.2 million in Help America
Vote Act funds for Fiscal Year 2020.5
DEFENDANT CHRISTOPHER E. PIPER, sued in his official capacity, is the
Commissioner of the VA DOE.
DEFENDANT VIRGINIA STATE BOARD OF ELECTIONS (“VA BOE”) is
the regulatory board for the VA DOE. VA BOE is authorized to prescribe standard forms for

See 2020 Cares Act Grants, U.S. Elections Assistance Comm’n,
https://www.eac.gov/payments-and-grants/2020-cares-act-grants (last visited July 22, 2020).
4

5

https://www.eac.gov/sites/default/files/paymentgrants/Funding_Chart_ES.pdf (last visited July
26, 2020).
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voter registration and elections and to supervise, coordinate, and adopt regulations governing the
work of local electoral boards, registrars, and officers of elections in Virginia.
VA BOE is responsible for ensuring that Virginia’s local electoral boards,
registrars, and offices operate elections in conformity with state and federal law, including Title
II of the ADA and Section 504.
VA BOE is a public entity under Title II of the ADA.
VA BOE receives federal financial assistance in many forms, including, but not
limited to, direct grants of assistance to develop, certify, and maintain Virginia’s voting program.
DEFENDANT ROBERT H. BRINK, sued in his official capacity, is the Chair of
the VA BOE.
JOHN O’BANNON, sued in his official capacity, is the Vice Chair of the VA
BOE.
JAMILAH D. LECRUISE, sued in her official capacity, is the Secretary of the
VA BOE.
STATEMENT OF FACTS
Absentee Voting in Virginia
Nationally, people with disabilities report substantially more difficulty voting than
others. According to one report, “[a]mong those who voted in a polling place in 2012, 30% of
voters with disabilities reported some type of difficulty in voting, compared to 8% of voters
without disabilities.”6 People with disabilities are more likely to vote by mail than other voters,

6

Lisa Schur & Douglas Kruse, Projecting the Number of Eligible Voters with Disabilities in the
November 2016 Elections 3 n.1 (2016), https://smlr.rutgers.edu/sites/default/files/documents/
faculty_staff_docs/Kruse%20and%20Schur_Disability%20electorate%20projections%202016_9
-8-16.pdf (hereinafter “Projecting the Number”).
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but almost 10% of voters with disabilities who voted by mail in 2012 “reported having
difficulties in doing so, and the need for assistance in filling out or sending the ballot.”7
Effective July 1, 2020, pursuant to the Code of Virginia § 24.2-700, Virginia
voters have the right to vote by absentee ballot without providing a reason or excuse in an
election in which they are qualified to vote.
Virginia’s Absentee Voting Program requires voters to fill out a paper ballot using
a pen or marker and to return the ballot by mail.
In order to cast an absentee vote, the voter must read the ballot in standard print,
physically write and/or fill in the ballot choices, enclose the ballot in the envelope provided for
that purpose, seal the envelope, fill in and sign the statement printed on the back of the envelope
in the presence of a witness, who shall sign the same envelope, enclose the ballot envelope and
any required assistance form within the envelope directed to the general registrar, and seal that
envelope and mail it to the office of the general registrar or deliver it personally to the general
registrar.
Requiring blind voters, including Plaintiffs, to read, mark, and sign their ballots
and envelopes in hard copy forces them to seek assistance from other persons in order to vote
absentee, depriving them of the right to cast a ballot privately and independently, as nondisabled
voters may do.
Defendants provide no accessible means for voters with print disabilities to
receive, review, mark, or submit an absentee ballot privately and independently.

7

Lisa Schur, Reducing Obstacles to Voting for People with Disabilities: White Paper prepared
for Presidential Commission on Election Administration 6 (2013), http://web.mit.edu/
supportthevoter/www/files/2013/08/Disability-and-Voting-White-Paper-for-PresidentialCommission-Schur.docx.pdf (hereinafter “Reducing Obstacles”).
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The Fourth Circuit has made clear that such an inaccessible absentee voting
system violates federal law. National Federation of the Blind v. Lamone, 813 F.3d 494 (4th Cir.
2016) (“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. . . . [D]efendants have provided such a benefit [private, independent
absentee voting] to non-disabled voters while denying that same benefit to plaintiffs on the basis
of their disability. This is precisely the sort of harm the ADA seeks to prevent.”).
COVID-19 Forces Plaintiffs To Risk Their Lives To Vote Privately and Independently
The Centers for Disease Control & Prevention (“CDC”) urges jurisdictions to
“consider offering alternatives to in-person voting” to reduce the spread of COVID-19.8 The
CDC also recognizes that “[m]ail-in voting can make it more difficult for voters with disabilities
to exercise their right to vote. Election officials should ensure that accessible voting options are
available and that these options are consistent with the recommendations for slowing the spread
of COVID-19.”9
According to the Virginia Department of Health, as of July 27, 2020, there are
86,072 confirmed and probable cases of COVID-19 in the state, 7,647 hospitalizations due to
COVID-19 infection, and 2,048 deaths.10
In light of COVID-19, it is reasonably expected that significant numbers of voters
will heed the Governor’s advice and exercise the option to vote by absentee ballot in the

8

See Coronavirus Disease 2019 (COVID-19): Consideration for Election Polling Locations and
Voters, CDC, https://www.cdc.gov/coronavirus/2019-ncov/community/election-pollinglocations.html (last visited July 19, 2020).
9

Id.

10

COVID-19 Daily Dashboard, https://www.vdh.virginia.gov/coronavirus/covid-19-dailydashboard (last visited July 27, 2020).
10

November General Election, making the need for implementation of an accessible Absentee
Voting Program more pressing than ever. In one sign of the likelihood of skyrocketing absentee
turnout, in Virginia’s June 2020 Democratic Primary, about 37% of voters returned absentee
ballots. By comparison, only approximately 8% of voters returned absentee ballots in Virginia’s
June 2019 Democratic Primary.11
Public health and government officials consider social distancing critical to
prevent the spread of COVID-19. On June 30, 2020, Governor Northam issued Executive Order
67, effective July 1, 2020, in response to the COVID-19 public health emergency. Executive
Order 67 urges Virginians to “remain cautious—continue teleworking whenever possible, wash
our hands frequently, do not touch our faces, and wear face coverings.”
Requiring people with print disabilities to travel to a board of elections office to
use a ballot marking device or to seek in-person assistance from others to complete their
absentee ballots puts them at risk of COVID-19 infection.12
The risk of contracting COVID-19 is particularly acute for people who are at high
risk of serious complications or death from COVID-19, including older adults, those with
immune disorders, heart, lung, kidney, or liver disease, diabetes, chronic lung disease (including
chronic obstructive pulmonary disease), asthma, or obesity.13

11

Data accessed from https://apps.elections.virginia.gov/SBE_CSV/ELECTIONS/
ELECTIONTURNOUT. Open the links for “Turnout-2020 June Democratic Primary.csv” and
“Turnout-2019 June Democratic Primary.csv.” Percentages derived from the sum of
“absentee_ballots” (Column H) divided by the sum of “TotalVoteTurnout” (Column K).
12

See Coronavirus Disease 2019 (COVID-19): People with Disabilities, CDC,
https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with
disabilities.html (last visited July 19, 2020).
13

See Coronavirus Disease 2019 (COVID-19): Groups at Higher Risk for Severe Illness, CDC,
https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/groups-at-higher-risk.html
(last visited July 19, 2020).
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Individuals, such as Plaintiffs, who require assistance to read, fill out, and sign
paper forms cannot both socially distance themselves from others and vote absentee in Virginia.
Defendants’ Absentee Voting Program puts Plaintiffs and other individuals with
print disabilities at unnecessary risk of contracting COVID-19 by requiring them to come into
close contact with others to assist them in reading, completing, and signing the absentee ballot.
Defendants’ Absentee Voting Program puts Plaintiffs and other individuals with
print disabilities who cannot independently and privately vote absentee at unnecessary risks of
contracting COVID-19 by requiring them to travel to their polling places or board of election to
vote in person.
If individuals with print disabilities are not willing to risk contracting COVID-19
by voting with assistance or by voting in person, they must give up their right to vote.
Mechanisms Available To Provide Accessible Absentee Ballots
Accessible alternatives to paper absentee ballots exist and are used by other states.
If Virginia implemented an accessible alternative to paper absentee ballots,
Plaintiffs would have an equal opportunity to vote privately and independently via absentee
ballot.
Virginia has secured an accessible email ballot delivery system for military and
overseas citizens pursuant to its obligation under the Uniformed and Overseas Citizens Absentee
Voting Act (“UOCAVA”), 52 U.S.C. § 20301 et seq. This system is called the myBallot
KNOWiNK system.
However, Defendants are making the KNOWiNK system available only to
overseas voters from select counties. They are not making the system available to voters with
print disabilities at all or to voters statewide.

12

On information and belief, the myBallot KNOWiNK system could be made
available to all Virginia voters with print disabilities statewide in time for the November 3, 2020
election.
The State of Maryland developed an online ballot marking tool that allows voters
to view and mark their absentee ballots on their computers.
Maryland created the tool to work with screen access software and has
extensively tested the tool’s usability for individuals with a variety of disabilities.
Maryland has used its online ballot marking tool since the November 2014
election to allow Maryland voters with disabilities to mark their ballots on their computers,
review a summary screen showing their marked ballot, and print out their marked ballot.
On information and belief, Maryland shares its online ballot marking technology
with other states at no charge.
Numerous other states provide RAVBM tools using commercially available
systems that allow voters to receive ballots online or by email, mark ballots on their computers
using assistive technology, and return ballots via online submission, email, fax, or mail.
Examples of RAVBM systems used in other states include Five Cedars Alternate
Format Ballot, Democracy Live OmniBallot, and Prime III.
Some of the commercially available RAVBM systems, including Prime III, are
available free of charge.
If Virginia chooses not to make myBallot KNOWiNK available to voters with
print disabilities, it could implement a commercially available remote accessible electronic ballot
marking tool in time for the November 3, 2020 election.

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Individual Plaintiffs’ Need for Accessible Absentee Voting
Plaintiff CARSHENA GARY lives in Capron, Virginia, and is a member of
NFBV.
Ms. Gary is blind and cannot read print. She uses assistive technology, such as
JAWS screen reader and Apple VoiceOver, to read printed materials aloud on a computer or
smart device.
Ms. Gary is registered to vote in Virginia and has voted in previous elections.
Because of the COVID-19 pandemic, Ms. Gary does not feel safe going to her
local polling place to vote.
Ms. Gary is concerned about contracting COVID-19 while voting because she has
diabetes, asthma, and Guillain-Barre syndrome, which place her at increased risk of severe
illness from the virus.
Ms. Gary is uncertain whether other individuals at the polling place or on public
transportation to the polling place will wear face coverings to help prevent the spread of the
COVID-19 virus. Because she is blind, she will be unable to confirm the use of face coverings or
adequate social distancing at the polling place.
Voting privately and independently is important to Ms. Gary. If available, she
intends to apply for an accessible mail-in ballot so that she can exercise her right to vote in the
November 3, 2020 General Election.
Ms. Gary is unable to vote absentee independently and privately because
Defendants refuse to make a RAVBM system available to voters with print disabilities.
PLAINTIFF LORI SCHARFF resides in Waynesboro, Virginia, and is a member
of ACB-VA.

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Ms. Scharff is blind and cannot read print. She uses assistive technology, such as
JAWS screen reader and Apple VoiceOver, to read printed materials aloud on a computer or
smart device.
Ms. Scharff is registered to vote in Virginia and has voted in previous elections.
Because of the COVID-19 pandemic, Ms. Scharff does not feel safe going to her
local polling place to vote.
Ms. Scharff is concerned about contracting COVID-19 while voting because she
has multiple sclerosis, which places her at increased risk of severe illness from the virus.
Ms. Scharff is uncertain whether other individuals at the polling place or on
public transportation to the polling place will wear face coverings to help prevent the spread of
the COVID-19 virus. Because she is blind, she will be unable to confirm the use of face
coverings or adequate social distancing at the polling place.
Voting privately and independently is important to Ms. Scharff. If available, she
intends to apply for an accessible mail-in ballot so that she can exercise her right to vote in the
November 3, 2020 General Election.
Ms. Scharff is unable to vote absentee independently and privately because
Defendants refuse to make a RAVBM system available to voters with print disabilities.
PLAINTIFF REGINA ROOT lives in Williamsburg, Virginia.
Dr. Root has nystagmus and has difficulty reading and writing standard print, as
well as central nervous system and manual dexterity disabilities as a result of a brain tumor. She
uses magnification software to magnify print to 24 point font.
Dr. Root is registered to vote in Virginia and has voted in previous elections.

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Because of the COVID-19 pandemic, Dr. Root does not feel safe going to her
local polling place to vote.
Voting privately and independently is important to Dr. Root. If available, she
intends to apply for an accessible mail-in ballot so that she can exercise her right to vote in the
November 3, 2020 General Election.
Dr. Root is unable to vote absentee independently and privately because
Defendants refuse to make a RAVBM system available to voters with print disabilities.
PLAINTIFF NAIM MUAWIA ABU-EL HAWA lives in Vienna, Virginia.
Mr. Hawa is blind and cannot read print. He uses assistive technology, such as
JAWS screen reader and Apple VoiceOver, to read printed materials aloud on a computer or
smart device, or via a refreshable Braille display.
Mr. Hawa is registered to vote in Virginia and has voted in previous elections.
Because of the COVID-19 pandemic, Mr. Hawa does not feel safe going to his
local polling place to vote.
Mr. Hawa is uncertain whether other individuals at the polling place or on public
transportation to the polling place will wear face coverings to help prevent the spread of the
COVID-19 virus. Because he is blind, he will be unable to confirm the use of face coverings or
adequate social distancing at the polling place.
Voting privately and independently is important to Mr. Hawa. If available, he
intends to apply for an accessible mail-in ballot so that he can exercise his right to vote in the
November 3, 2020 General Election.
Mr. Hawa is unable to vote absentee independently and privately because
Defendants refuse to make a RAVBM system available to voters with print disabilities.

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PLAINTIFF JOHN HALVERSON lives in Arlington, Virginia, with his wife,
who is also blind.
Dr. Halverson is blind and cannot read print. He uses assistive technology, such as
JAWS screen reader and Apple VoiceOver, to read printed materials aloud on a computer or
smart device, or via a refreshable Braille display.
Dr. Halverson is registered to vote in Virginia and has voted in previous elections.
Because of the COVID-19 pandemic, Dr. Halverson does not feel safe going to
his local polling place to vote.
Dr. Halverson is concerned about contracting COVID-19 while voting because he
has diabetes, COPD, high blood pressure, and an irregular heartbeat, which place him at
increased risk of severe illness from the virus.
Dr. Halverson is uncertain whether other individuals at the polling place or on
public transportation to the polling place will wear face coverings to help prevent the spread of
the COVID-19 virus. Because he is blind, he will be unable to confirm the use of face coverings
or adequate social distancing at the polling place.
Voting privately and independently is important to Dr. Halverson. If available, he
intends to apply for an accessible mail-in ballot so that he can exercise his right to vote in the
November 3, 2020 General Election.
Dr. Halverson is unable to vote absentee independently and privately because
Defendants refuse to make a RAVBM system available to voters with print disabilities.
Communications with Defendants
Plaintiffs and the disability community have requested that Defendants make
Virginia’s Absentee Voting Program accessible.

17

On September 27, 2019, the National Federation of the Blind submitted a letter to
Defendants reminding them that the ADA and Section 504 require implementation of an
accessible absentee ballot system to ensure that voters with disabilities have an equal opportunity
to cast absentee ballots privately and independently and provided information on available
accessible systems.
On October 15, 2019, Defendant Piper responded to NFB’s September 27, 2019
letter and stated: “We are aware of the Fourth Circuit’s decision in National Federation of the
Blind v. Lamone, as well as the requirements of Title II of the Americans with Disabilities Act.”
Yet, Defendants have not made any efforts to ensure their Absentee Voting Program complies
with the ADA.
In anticipation of the primary election held in June 2020, NFBV wrote a follow
up letter to Defendant Piper on April 21, 2020. NFBV informed Defendant Piper that NFBV was
“hearing from many blind constituents who are very alarmed about having a private and
independent means to vote in the upcoming elections.” NFBV explained Defendant Piper’s
obligation under federal law to ensure that voters with disabilities are able to vote privately and
independently. NFBV explained that other states were meeting their legal obligations under the
ADA and Section 504 by allowing voters with disabilities to use RAVBM tools. NFBV offered
to meet with Defendant Piper to educate him about accessible voting options and to collaborate
regarding implementation of a RAVBM tool in Virginia.
In response to NFBV’s April 21 letter, Defendant Piper met with NFBV on May
1, 2020. NFBV was hopeful that they could work with Defendants to implement a remote access
vote by mail tool, but Defendant Piper did not follow up on the meeting before the June 23, 2020

18

primary election. As a result, voters with print disabilities were not able to vote privately and
independently in Virginia’s May 19, 2020 municipal elections or June 23, 2020 primary election.
NFBV followed up with Defendant Piper several times between May 1, 2020, and
July 9, 2020, when NFBV once again met with Defendants. On July 9, 2020 Defendants
informed NFBV that, while they have completed a successful pilot of the myBallot KNOWiNK
system in one county, they only intended to expand its use to a few other counties and they
would not be making it available to voters with disabilities.
On June 28, 2020, ACB-VA submitted a letter to Defendants reminding them that
the ADA and Section 504 require implementation of an accessible absentee ballot system to
ensure that voters with disabilities have an equal opportunity to cast absentee ballots privately
and independently and provided information on accessible systems that are available. Defendants
did not respond to this letter.
On July 15, 2020, undersigned counsel wrote to Defendant Piper, as well as
Governor Northam and Attorney General Herring, on behalf of a coalition of disability rights
organizations, including Plaintiffs NFBV and ACB-VA, to request the Commonwealth’s written
commitment to adopt and implement a remote, accessible electronic absentee ballot marking tool
in compliance with federal law in time for the upcoming general election. Defendant Piper did
not respond to this request.
Defendants have refused to make the Absentee Voting Program accessible despite
Plaintiffs’ efforts to resolve this matter without litigation.

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FIRST CLAIM FOR RELIEF
TITLE II OF THE AMERICANS WITH DISABILITIES ACT
42 U.S.C. § 12131 et seq.
Plaintiffs incorporate by reference each and every allegation contained in the
foregoing paragraphs as if specifically alleged herein.
Title II of the ADA, 42 U.S.C. § 12131 et seq., guarantees individuals with
disabilities an equal opportunity to access the benefits of the services, programs, or activities of a
public entity. 42 U.S.C. § 12132.
Title II mandates, inter alia, 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.” 42 U.S.C. § 12132.
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).
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 individuals with disabilities, including
applicants, participants, companions, and members of the public, an equal opportunity to

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participate in, and enjoy the benefits of, a service, program, or activity of a public entity.” 28
C.F.R. § 35.160.
The ADA regulations provide that “[i]n determining what types of auxiliary aids
and services are necessary, a public entity shall give primary consideration to the requests of
individuals with disabilities.” 28 C.F.R. § 35.160(b)(2).
To be effective, the “auxiliary aids and services must be provided in . . . such a
way as to protect the privacy and independence of the individual with a disability.” 28 C.F.R.
§ 35.160(b)(2).
Auxiliary aids and services specifically include “screen reader software;
magnification software; optical readers; . . . [and] accessible electronic and information
technology.” 28 C.F.R. § 35.104.
Defendants VA DOE and VA BOE are public entities under Title II of the ADA.
Individual Defendants are sued in their official capacities as those responsible for carrying out
the operations of Defendant agencies.
Absentee voting is a service, program, or activity provided by Defendants.
Individual Plaintiffs are individuals with disabilities under the ADA.
Individual Plaintiffs are lawfully registered to vote in Virginia and intend to vote
in upcoming elections, including the November 3, 2020 election, and are thus qualified
individuals entitled to the protections of the ADA.
Organizational Plaintiffs NFBV and ACB-VA work to protect the rights of blind
people in Virginia and have members who are qualified individuals with disabilities under the
ADA.

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Remote, accessible absentee ballot tools are readily available to Defendants and
allow independent, private absentee voting for people with print disabilities.
Defendants have failed to meet their obligations to provide voters with disabilities
an opportunity to vote absentee that is equal to the opportunity provided to other voters.
By failing to implement a readily available RAVBM tool, Defendants have
refused to provide an auxiliary aid or service necessary to allow Plaintiffs to vote absentee as
effectively as voters without disabilities.
During the current pandemic, implementing accessible absentee voting would
enable Virginia voters with print disabilities to vote privately and independently without
compromising their health or their lives by risking exposure to COVID-19.
Accordingly, Defendants have discriminated against Plaintiffs because their
service, program, or activity of absentee voting is inaccessible.
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’ Absentee Voting Program, they will be unable to vote privately
and independently by absentee ballot in the November 3, 2020 election and in future elections,
and in order to vote in person they will be forced to risk their health and safety due to the threat
of COVID-19.
In the absence of injunctive relief, Defendants will continue to deny Plaintiffs
their right to vote by absentee ballot privately and independently in upcoming elections.
Plaintiffs are entitled to injunctive and declaratory relief and to reasonable
attorneys’ fees and costs.

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SECOND CLAIM FOR RELIEF
VIOLATION OF SECTION 504 OF THE REHABILITATION ACT OF 1973
29 U.S.C. § 794 et seq.
Plaintiffs incorporate by reference all allegations contained in the preceding
paragraphs, as if alleged herein.
Section 504 of the Rehabilitation Act 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.” 29 U.S.C. § 794(a).
Section 504 defines “program or activity,” in pertinent part, as “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 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[.]” 29
U.S.C. § 794(b)(1).
Such federally funded entities may not, inter alia, 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. § 2.503(b)(1)(i).
Such federally funded entities must also “insure that communications with their
. . . beneficiaries are effectively conveyed to those having impaired vision and hearing,” 28
C.F.R. § 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

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participation of such persons in a program or activity receiving Federal financial assistance.” 28
C.F.R. § 42.503(f).
Defendants VA DOE and VA BOE, agencies of the Commonwealth of Virginia,
receive federal financial assistance, thereby subjecting themselves to the requirements of Section
504. Individual Defendants are sued in their official capacities as those responsible for carrying
out the operations of Defendants VA BOE and VA DOE.
Defendants VA DOE and VA BOE have 15 or more employees.
Absentee voting is a service, program, or activity provided by VA DOE and VA
BOE.
Individual Plaintiffs are people with disabilities under Section 504.
Plaintiffs are lawfully registered to vote in Virginia in all upcoming elections,
including the November 3, 2020 election, and thus are qualified individuals with disabilities
entitled to the protections of Section 504.
Organizational Plaintiffs NFBV and ACB-VA have members who are qualified
individuals with disabilities under Section 504.
Remote, accessible absentee ballot tools are readily available to Defendants and
allow independent, private absentee voting for people with print disabilities.
Defendants have failed to meet their obligations to provide voters with disabilities
with an opportunity to vote absentee that is equal to the opportunity provided to other voters.
By failing to implement a readily available RAVBM tool, Defendants have
refused to provide an auxiliary aid or service necessary to allow plaintiffs to vote absentee as
effectively as voters without disabilities.

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During the current pandemic, implementing accessible absentee voting would
enable Virginia voters with print disabilities to vote privately and independently without
compromising their health or their lives by risking exposure to COVID-19.
Accordingly, Defendants have discriminated against Plaintiffs because their
service, program, or activity of absentee voting is inaccessible.
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’ Absentee Voting Program, they will be unable to vote privately
and independently by absentee ballot in the November 3, 2020 election and in future elections,
and in order to vote they will be forced to risk their health and safety.
In the absence of injunctive relief, Defendants will continue to deny Plaintiffs
their right to vote by absentee ballot privately and independently in upcoming elections.
Plaintiffs are entitled to injunctive and declaratory relief and to reasonable
attorneys’ fees and costs.
THIRD CLAIM FOR RELIEF
VIOLATION OF VIRGINIA CODE
The right to a secret ballot is enshrined in the Constitution of Virginia. Va. Const.
Art. II, § 3.
The Code of Virginia states, “No person with a disability who is otherwise
entitled to vote . . . shall be denied the opportunity to register or vote in this Commonwealth
because of such disability.” Va. Code § 51.5-43.

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The Virginia Code defines a person with a disability as “any person who has a
physical or mental impairment that substantially limits one or more of his major life activities or
who has a record of such impairment.” Va. Code § 51.5-40.1.
Plaintiffs have print disabilities that impact the major life activities of seeing,
moving, and/or writing, and are thus individuals with disabilities within the meaning of the
Virginia Code. Va. Code § 51.5-40.1.
Plaintiffs are individuals with disabilities who are lawfully registered to vote in
Virginia in all upcoming elections, including the November 3, 2020 election, and thus are
qualified individuals with disabilities entitled to the protections of the Code of Virginia.
Virginia’s Absentee Voting Program deprives Plaintiffs of their right to cast a
private, independent absentee ballot because it requires Plaintiffs to vote via paper ballot.
In order to cast a vote using a paper ballot, a voter is required to read standard
print, physically write and/or fill in the ballot choices, certify the ballot via a signature on the
envelope, secure a witness’s signature, and mail the ballot back to the appropriate voting official
to be counted. These requirements pose barriers to individuals with print disabilities, including
Plaintiffs, that force those individuals to seek assistance from other persons in order to vote
absentee. Virginia’s Absentee Voting Program therefore deprives people with print disabilities of
the right to cast an absentee ballot secretly and independently.
Remote, accessible absentee ballot systems are readily available to Defendants
and allow independent, secret absentee voting for people with print disabilities.
Defendants have failed to meet their obligations to provide voters with disabilities
with an opportunity to vote absentee that is equal to the opportunity provided to other voters.

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Accordingly, Defendants have discriminated against Plaintiffs by failing to
implement a readily available RAVBM system. Defendants have denied Plaintiffs the equal
opportunity to vote secretly and independently because of their disabilities.
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’ Absentee Voting Program, they will be unable to vote secretly
and independently by absentee ballot in the November 3, 2020 election and in future elections,
and in order to vote in person they will be forced to risk their health and safety due to the threat
of COVID-19.
In the absence of injunctive relief, Defendants will continue to deny Plaintiffs
their right to vote by absentee ballot secretly and independently in upcoming elections.
Plaintiffs are entitled to injunctive relief and to reasonable attorneys’ fees and
costs.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs request the Court to provide relief as set forth below:
A declaration that Defendants have violated and continue to violate the ADA,
Section 504, and Virginia Code by failing to provide individuals with print disabilities an
accessible means of receiving, marking, and submitting absentee ballots with privacy and
independence;
A preliminary and permanent injunction prohibiting Defendants from violating
the ADA, Section 504, and Virginia Code § 51.5-43 and requiring them to offer a private and
independent method of absentee voting that is accessible for Plaintiffs and others with print
disabilities in time for use by voters in the November 3, 2020 election and in all future elections;

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A preliminary and permanent injunction requiring Defendants to provide
immediate guidance, training, and technical assistance to the elections officials of each voting
jurisdiction within the Commonwealth of Virginia regarding the proper and timely
implementation of the private and independent accessible method of absentee voting;
A preliminary and permanent injunction requiring Defendants to provide
immediate notice, guidance, and training to voters with disabilities throughout the
Commonwealth of Virginia regarding the availability and use of the private and independent
accessible method of absentee voting;
An award of Plaintiffs’ reasonable attorneys’ fees and costs; and
Such other and further relief as the Court may deem just and proper.

DATE: July 27, 2020

Respectfully,
BY: /s/ Steven M. Traubert
Steven M. Traubert, VSB#41128
Zachary S. Devore, VSB#65401
disAbility Law Center of Virginia
1512 Willow Lawn Drive, Suite 100
Richmond, VA 23230
Phone: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Eve L. Hill (pro hac vice to be filed)
Abigail Graber (pro hac vice to be filed)
Brown Goldstein & Levy
120 E. Baltimore St., Ste. 1700
Baltimore, MD 21202
[phone] (phone)
[phone] (fax)
[e-mail]

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[e-mail]
Steven P. Hollman (pro hac vice to be filed)
SHEPPARD MULLIN RICHTER
& HAMPTON, LLP
2099 Pennsylvania Avenue, NW
Washington, DC 20006-6801
Phone: [phone]
Fax: [phone]
[e-mail]
Kaitlin Banner (pro hac vice to be filed)
Margaret Hart (pro hac vice to be filed)
WASHINGTON LAWYERS’
COMMITTEE FOR CIVIL RIGHTS AND
URBAN AFFAIRS
700 14th Street, NW, Suite 400
Washington, DC 20005
Phone: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Counsel for Plaintiffs

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