Federal judge makes mobile electoral commissions permissive, not mandatory, to win over voters who are blind and unable to read print
While the U.S. District Court for the Southern District of Indiana expressed “serious concern” about the current procedures in place to allow blind and print-impaired Hoosiers to vote by mail, it determined that it was only able to deliver a partial injunction before the May 2022 primary election. But disability rights organizations say the order ends the nation’s ‘most restrictive’ rule on commissions mandatory mobile polls for print-disabled voters.
Judge Jane Magnus-Stinson of the U.S. District Court for the Southern District of Indiana ruled Wednesday that the use of a traveling absentee voter board should be permissive rather than mandatory for print-disabled voters.
The move came after the Indiana American Council of the Blind, Indiana Protective and Defense Services Commission, Kristin Fleschner, Rita Kersh, and Wanda Tackett in December 2020 filed suit against the Indiana Election Commission. Indiana, its members in their official capacities, the Indiana Secretary of State, the Indiana Electoral Division and its co-directors of the IED in their official capacities. The plaintiffs argued that the exclusion of blind voters from Indiana’s absentee ballot program amounted to discrimination under Title II of the Americans with Disabilities Act and Section 504 of the Act. on Rehabilitation of 1973.
The plaintiffs filed a motion for a preliminary injunction ahead of the May primary election that makes the use of a mail-in roving voters board permissive, rather than mandatory, for print-disabled voters and orders the State to provide a web-based absentee ballot marking and submission option, known as remotely accessible absentee balloting, for print-disabled voters to use with assistive technology. Magnus-Stinson granted the injunction on the first but not the last request.
Disability Rights Advocates and Indiana Disability Rights celebrated the decision in a press release Thursday.
“I tried so hard to make an appointment with the traveling council during the 2020 presidential election, but they never came and I was never able to vote at all,” plaintiff Tackett said in the Press release. “I am so relieved that no one has to go through this in the May 2022 election. Not only am I grateful to everyone working on this side of the table, but I am grateful to God for His grace and mercy.
In Indiana, any voter can vote by mail in one of four ways: in-person early voting, absentee voting, voting with the assistance of the traveling council, or through the Citizens’ Absentee Voting Act. in uniform and overseas.
According to Indiana Act of registration in the Senate 398which came into effect on July 1, 2021, print-disabled voters have been added to the list of voters eligible to vote under the UOCAVA program, which allows postal voting by postal mail, email or fax for military and foreign voters.
In September of last year, the Secretary of State issued an “Order Adopting Absenteeism Procedures for Voters with Reading Disabilities” addressing procedures for implementing SEA 398 and allowing voters with reading difficulties to vote according to the UOCAVA model. The order provides that print-disabled voters will have access to a combined voter registration and mail-in ballot application that is “substantially similar” to the form used by UOCAVA military and foreign voters.
After completing and returning the combined form, print-disabled voters will receive: (1) an Absentee Voter’s Bill of Rights; (2) a voluntary waiver of the secret ballot, which allows election officials to transfer the choices marked on the absentee ballot to paper readable by voting machines; (3) a postal vote; and (4) any county-specific instructions developed by the voter’s county board of elections. The voter must then complete and sign the absentee ballot and secrecy waiver, if voting by fax or email, and return these documents to their county election officials.
However, the issue raised by the complainants was that print-disabled voters cannot sign or mark a document using traditional methods, and many cannot sign a document using computer mouse or touch device. Further, plaintiffs argued that nothing in the ordinance required state and county election commissions to take action to ensure that absentee ballots, county-specific voting instructions, or the declaration Absentee Voters’ Rights – which are necessary to vote under the UOCAVA program – be accessible to voters with print disabilities or meet web content access guidelines established by the international consortium World Wide Web.
“Defendants intend to create these documents and make them accessible using .pdf software, but defendants have not yet begun to develop these documents or make any effort to make these documents accessible or compliant. to WCAG,” according to the court order for the Southern District of Indiana.
“Additionally, given that ballots are complex documents and that Indiana’s 4,500 precincts in 92 counties will need to produce between 2,500 and 3,500 different ballots for the primary election, it is extremely unlikely that all of the necessary materials can be developed in an accessible form before Election Day,” the order states. Voting from home involves the use of a mobile council.The mobile council system significantly interferes with the ability of a person who is blind or unable to read print to vote privately and independently.
Magnus-Stinson added, “…Plaintiffs are likely to succeed on the merits of their claims challenging Indiana’s current mail-in voting procedures under the ADA and the Rehabilitation Act.”
Thus, she ordered the defendants to make the use of a traveling council permissive, rather than mandatory, for print-disabled voters seeking to vote by mail in the upcoming primary election.
“Voters who are print-disabled may complete their mail-in ballot with the assistance of a person of their choice, as long as that person is not the voter’s employer, a union officer of the voter or an agent of the voter’s employer or union,” the order reads. “Defendants should notify the County Boards of Elections that they must accept and count these ballots if they are otherwise valid.”
“Vote traveling on board in 2020 was not only inconvenient, but I was also unable to vote privately and independently,” plaintiff Fleschner said in the press release. According to Disability Rights Advocates, Fleschner had to appoint a traveling council to vote in 2020, but when the traveling council arrived, they asked his mother to fill out her ballot, defeating the purpose of their visit.
“(Wednesday’s) order bodes very well for our trial and our leave of absence request. vote private, independent and accessible to all,” she said.
However, the court denied the defendants’ request to implement a RAVBM voting option before the next election.
“The Court reiterates that its partial denial of Plaintiffs’ motion is without prejudice to Plaintiffs’ ability to file a renewed motion seeking an injunction relating to future elections,” Magnus-Stinson wrote. “While binding case law prevents the Court from resolving obvious issues with Defendants’ current mail-in voting procedures prior to the May 3, 2022 primary election, the Court is gravely concerned about these issues and expects Defendants are stepping up efforts to address these issues in advance of the next election.”
The parties have been ordered to appear at a status conference in three months, which will be scheduled in a separate order. At this conference, Defendants, in person, “should be prepared to advise the Court of the status of mail-in voting for print-disabled voters and of any issues raised in connection with Plaintiffs’ current motion.”
In addition, the court ordered the defendants to collect data on the following in connection with the May 3 election, for the purpose of measuring the success of the defendants’ current plan for accessible mail-in voting:
- How many voters—and more specifically, how many print-disabled voters—completed the absentee ballot and registration application form contemplated by SEA 398 and the UOCAVA program under the Indiana Code § 3-11-4-6.
- How many print-disabled voters were successfully registered and allowed to vote by mail under SEA 398 and the UOCAVA program.
- How many accessible ballots were sent to voters with print disabilities.
- How many accessible ballots were started, completed, accepted and counted, and rejected.
The deal is American Council of the Blind of Indiana, Indiana Protection and Advocacy Services Commission, Kristin Fleschner, Rita Kersh and Wanda Tackett v. Indiana Election Commission, Individual Indiana Election Commission Members, Indiana Secretary of State, Indiana Election Division, and Indiana Electoral Division Co-Directors, 1:20-cv-03118.