Gary et al v. Virginia Department of Elections et al

Filing 39

ORDER granting #37 Joint Motion for Entry of Partial Consent Judgment (see order for details). Signed by District Judge Claude M. Hilton on 08/28/2020. (jlan)

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UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division
CARSHENA GARY, et al.,
Plaintiffs,
v.

Case No. 1:20-CV-860

VIRGINIA
DEPARTMENT
ELECTIONS, et al.,

OF

Defendants,
PARTIAL CONSENT JUDGMENT AND DECREE
1.

Whereas Virginia Code §§ 24.2-706 and 24.2-707 require that voters completing

an absentee ballot must open, mark, and refold their ballot in the presence of a witness, and then
have the witness sign their ballot envelope.
2.

Whereas the witness requirement has been modified for the November 3, 2020

election as the result of a consent decree entered by U.S. District Court Judge Norman K. Moon
in League of Women Voters of Va. v. Va. State Bd. of Elections, 2020 U.S. Dist. LEXIS 152120
(W.D. Va. August 21, 2020).; see attached Exhibit A. The consent decree permits a voter who
believes she may not safely have a witness present while completing her ballot to disregard the
witness requirement for the November 3, 2020 election. See id.
3.

Whereas Virginia Code § 24.2-706(D) only permits absentee ballots to be

electronically transmitted to “covered voters,” as defined in Virginia Code § 24.2-452(1).

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4.

Whereas any physically disabled voter may request and then shall be handed a

printed ballot by an officer of election outside the polling place but within 150 feet of the
entrance to the polling place. Va. Code § 24.2-649(A).
5.

Whereas any voter who requires assistance to vote by reason of physical disability

or inability to read or write may, if she so requests, be assisted in voting. If the voter is blind, she
may designate an officer of election or any other person to assist. Va. Code § 24.2-649(B).
6.

Whereas the prohibition on electronically transmitting ballots to print disabled

voters necessitates that any print disabled voter who wishes to vote an absentee ballot will need
to either invite another person into their home to assist the voter in completing a paper ballot or
travel outside their home to vote in person utilizing ballot marking tools at absentee voting
locations or polling places. If the voter wishes to vote a paper absentee ballot, the individual
must have another person assist the voter in opening their ballot envelope, filling out their ballot,
closing and signing the envelope, and finally exchanging the envelope with the witness to obtain
the witness’s signature.
7.

Whereas an effective, widely available vaccine for COVID-19 will almost

certainly not be available by November 3, 2020, and the significant weight of scientific evidence
confirms that COVID-19 will likely continue to transmit widely in the community absent a
vaccine or herd immunity, and that herd immunity will not occur anytime in the near future.
8.

Whereas on July 27, 2020, Plaintiffs 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 filed a complaint against the 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

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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 (collectively Defendants), challenging Virginia’s
system of absentee voting for individuals with print disabilities, particularly in light of the
COVID-19 pandemic. ECF No. 1 at 1.
9.

Among other relief requested, the Complaint seeks a court order requiring

Defendants 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. ECF No. 1 at ¶ 169.
10.

Whereas on August 10, 2020, the same Plaintiffs filed a motion for preliminary

injunction requesting this Court require Defendants to, by September 18, 2020, implement an
absentee ballot program accessible to all print disabled voters, including a remote accessible
vote-by mail tool that provides for electronic delivery and marking of absentee ballots, to issue
guidance to localities requiring those localities to make that technology available to print
disabled voters, and to inform the public of the availability of the accessible absentee ballot
program. ECF No. 20 at p. 2-3.
11.

Whereas, pursuant to Va. Code § 24.2-612, absentee voting must be available 45

days prior to the November 3, 2020 General Election (“the November Election”), or Saturday,
September 19, 2020. For localities whose general registrar’s offices are closed on that Saturday,
absentee ballots must be available on Friday, September 18, 2020.
12.

Whereas, in light of the data that supports the Plaintiffs’ concerns for their safety

if they are required to interact with others in order to cast their ballot in the November Election
combined with the importance of ensuring every qualified voter may vote privately and

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independently, Plaintiffs and Defendants (collectively, the Consent Parties) agree that an
expeditious resolution of this matter for the November general election, in the manner
encompassed by the terms of this Consent Decree, is in the best interests of the health, safety,
and constitutional rights of the citizens of the Commonwealth of Virginia, and therefore in the
public interest.
13.

Whereas the Consent Parties agree that, for the November 3, 2020 election:
a. Not later than September 18, 2020, Defendants will make available to all
localities a tool that will allow print disabled voters to electronically receive and
mark absentee ballots using screen reader assistive technology such as MyBallot
(the “Ballot Marking Tool”). If, despite their best efforts, Defendants are unable
to implement the Ballot Marking Tool by September 18, 2020, Defendants shall
implement it as soon thereafter as practicable but in no event later than September
30, 2020.
b. Defendants shall issue updated guidance to inform general registrars that if on the
Virginia Vote by Mail Application Form a voter marks the box at 7d (“I need
assistance completing my ballot due to a disability, blindness, or inability to read
or write.”), the general registrar shall:
i. Contact the voter via mail, phone, or email to inquire as to whether the
voter has a print disability.
ii. If the voter affirms that they have a print disability, the general registrar
shall electronically make available the Ballot Marking Tool and accessible
electronic instructions for completion and return of the ballot, to the voter
if the voter so elects.

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iii. The registrar shall also send the voter a ballot return envelope (Envelope
B), enclosed in a larger envelope (Envelope A). The registrar shall place a
tactile marking on Envelope A (e.g., hole punch, a corner cut, or a tactile
sticker) in order to identify the envelope as Envelope A to the voter.
iv. The registrar shall not reject ballots from print disabled voters on the basis
of the position of the voter’s signature or address on Envelope B if the
voter’s signature or address is anywhere on the envelope.
v. The registrar shall not reject ballots from print disabled voters because
they are completed using the Ballot Marking Tool and printed on regular
paper.
c. Defendants shall provide instructions to all localities that the localities must make
the Ballot Marking Tool available to all print disabled voters.
d. Defendants shall provide instructions with each paper absentee ballot sent to
voters that, if the voter is print disabled, the voter may contact the general
registrar to void that paper absentee ballot and vote instead using the Ballot
Marking Tool.
e. Defendants shall take reasonable steps to provide information to the public
regarding the Ballot Marking Tool, including issuing a press release and posting
information on the Department of Elections website and social media pages
before September 18 and periodically during the early voting period.
f. Defendants shall take reasonable steps to provide information to the public
regarding the fact that, if a voter with a print disability has already received a
paper absentee ballot that has not been cast, the voter may contact their general

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registrar to cancel that paper absentee ballot and request the use of the Ballot
Marking Tool.
g. Any voter who utilizes the Ballot Marking Tool shall be required to mail or
physically return their absentee ballot to the appropriate general registrar using
Envelope B.
14.

Whereas Plaintiffs agree to withdraw with prejudice their August 10, 2020

Motion for Preliminary Injunction upon entry of this Partial Consent Judgment and Decree.
15.

Whereas the Consent Parties agree that entry of this Consent Decree does not

affect the viability of Plaintiffs’ claims under Title II of the Americans with Disabilities Act (42
U.S.C. § 12131 et seq.), § 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794), or Virginia
Code § 51.5-43 with respect to voting by print disabled voters in any subsequent elections after
the November Election.
16.

The Consent Parties further agree that neither the entry of this Consent Decree,

nor anything contained herein, is or shall be deemed an admission of liability by the
Commonwealth Defendants as to any of the Plaintiffs’ claims made, or issues raised, in the
Complaint (ECF No. 1) or otherwise waives or prejudices the Defendants’ ability, which is
hereby reserved, to deny, dispute, or challenge any of the issues, claims or allegations made
therein (including, without limitation, any claims for damages, fees (including attorneys’ fees),
expenses, costs, and/or any other relief sought).
17.

Whereas the Consent Parties will attempt in good faith to reach a final agreement

resolving Plaintiffs’ remaining claims and issues of damages, fees, including attorneys’ fees,
expenses, and costs, that may have accrued or may accrue, and Plaintiffs reserve the right to seek
an award of damages, fees, and costs if resolution is not achieved.

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18.

Whereas the Court finds that it has subject matter jurisdiction over the Consent

Parties and that the Partial Consent Judgment and Decree is fair, adequate, and reasonable, and
not illegal, a product of collusion, or against the public interest because such agreement
preserves the constitutional right to vote of Plaintiffs and other Virginia voters while promoting
public health during a pandemic and does so without harming the integrity of Virginia’s
elections. The agreement also gives appropriate weight to Defendants’ expertise and public
interest responsibility in the area of election administration.
19.

Whereas Plaintiffs made a sufficiently strong showing on the merits of the claim,

as shown in their complaint and motion for preliminary injunction, to further support the
fairness, adequacy, and reasonableness of this Partial Consent Judgment and Decree.
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED FOR THE REASONS
STATED ABOVE IN PARAGRAPHS 1-18
1.

That for the November 3, 2020 Election:
a. Not later than September 18, 2020, Defendants will make available to all
localities a tool that will allow print disabled voters to electronically and
accessibly receive and mark absentee ballots using screen reader assistive
technology (the Ballot Marking Tool). If, despite their best efforts, Defendants are
unable to implement the Ballot Marking Tool described herein by September 18,
2020, Defendants shall implement it as soon thereafter as practicable but in no
event later than September 30, 2020.
b. Defendants shall issue updated guidance to inform general registrars that if a voter
in applying for an absentee ballot, on or after the date of the entry of this consent
decree, marks that the voter will require assistance in completing their absentee

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ballot, the general registrar shall contact the voter via mail, phone, or email to
inquire as to whether the voter has a print disability. If the voter affirms that they
have a print disability, the general registrar shall make available the Ballot
Marking Tool and instructions to the voter if the voter so elects. The registrar
shall also send the voter a ballot return envelope (Envelope B), enclosed in a
larger envelope (Envelope A). Defendants shall provide instructions to all
localities that the localities must make the Ballot Marking Tool available to all
print disabled voters and must not reject ballots from voters with print disabilities
based on the position of the voter’s signature or address on the ballot return
envelope or based on the fact that the ballot is printed on regular paper. The
registrar shall place a tactile marking on Envelope A (e.g., hole punch, a corner
cut, or a tactile sticker) in order to identify the envelope as Envelope A to the
voter.
c. Defendants shall provide instructions with each paper absentee ballot sent to
voters that, if the voter is print disabled, the voter may contact the general
registrar to void that paper absentee ballot and vote instead using the Ballot
Marking Tool.
d. Defendants shall take reasonable steps to provide information to the public
regarding the Ballot Marking Tool, including issuing a press release and posting
information on the Department of Elections website and social media pages
before September 18 and periodically during the early voting period.
e. Defendants shall take reasonable steps to provide information to the public
regarding the fact that, if a voter has a print disability and has already received a

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Dated: August 27, 2020
AGREED AND CONSENTED TO:
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)
Abigail Graber (pro hac vice)
Brown Goldstein & Levy
120 E. Baltimore St., Ste. 1700
Baltimore, MD 21202
[phone] (phone)
[phone] (fax)
[e-mail]
[e-mail]

MARK R. HERRING
Attorney General of Virginia
By: /s/ Carol L. Lewis
CAROL L. LEWIS (VSB #92362)
BLAIRE HAWKINS O’BRIEN (VSB #83961)
HEATHER HAYS LOCKERMAN (VSB
#65535)
RONALD N. REGNERY (VSB #37453)
Office of the Attorney General
202 North Ninth Street
Richmond, Virginia 23219
804-692-0558 (telephone)
804-692-1647 (facsimile)
[e-mail]
Attorneys for Virginia Department Of Elections,
Christopher Piper, the Virginia Board Of
Elections, Robert H. Brink, John O’ Bannon, and
Jamilah D. Lecruise

Steven P. Hollman (pro hac vice)
Jonathan Wang (pro hac vice)
SHEPPARD MULLIN RICHTER
& HAMPTON, LLP
2099 Pennsylvania Avenue, NW Washington,
DC 20006-6801
Phone: [phone]
Fax: [phone]
[e-mail]
Kaitlin Banner (pro hac vice)
Margaret Hart (pro hac vice)
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]
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