Sixth Circuit Revives Blind Ohioans’ Bid for Voting Tool

CINCINNATI (CN) – The Sixth Circuit breathed new life into an effort by blind Ohio voters to introduce an online voting tool to replace absentee paper ballots for the disabled, finding that state officials did not prove the software would fundamentally change its voting system.

In a unanimous ruling Monday, the Cincinnati-based appeals court overturned a decision by a federal judge in Columbus, who had sided with Ohio last year.

The Sixth Circuit panel remanded the case for further proceedings, finding Ohio Secretary of State Jon Husted did not prove the requested tool would require the state to adopt the software before officials could certify and test it.

It is almost impossible for blind voters to read or fill out their paper absentee ballot without somebody else helping them, according to a 2015 lawsuit filed by three registered voters and the National Federation of the Blind, which alleged violations of the Americans with Disabilities Act.

NFB spokesman Chris Danielsen said that technology to replace absentee ballots for the blind is stable and secure and stressed that it did not mean “voting online.” It only allows blind voters to generate and print a ballot so they can mail it in, he said.

“The bottom line is that blind people have the right to vote in secret and independently just like everybody else does and there is now technology that allows us to do that in the absentee ballot process,” Danielsen said during a phone interview Tuesday. “The result of the blind person using that technology appears no different once the ballot is printed out and mailed in than a traditional absentee ballot.”

Husted’s spokesman Sam Rossi said that Ohio election officials wanted to make sure that the state’s voting system is accessible and secure for all voters, including people with disabilities.

“However, previous rulings have made clear that one group of voters cannot receive special accommodations to cast a ballot that aren’t available to others,” Rossi wrote in an email on Tuesday. “The court must provide clarity on how we accommodate voters who need additional services without jeopardizing the current process for all other voters.”

Shelbi Hindel, Barbara Pierce, Marianne Denning and the NFB sued Husted ahead of Ohio’s 2016 primaries. They argued that the state was depriving them of a right afforded to most Ohio voters to cast absentee ballots privately and access the state’s voter services website.

The voters said they would like to cast absentee ballots because of difficulties reaching polling places without assistance from friends and family, or if they were out of town, sick, or unable to travel to the polls because of bad weather.

Paper ballots stripped “the individual plaintiffs of the secrecy of their ballots,” they said in their December 2015 lawsuit.

Last year, U.S. District Judge George Smith ruled in favor of Husted. The judge agreed that the three voters were deprived of meaningful access to the state’s absentee voting process but stopped short of requiring the state to implement the online voting tool.

Maryland developed its own version of the software, which allows blind voters to use Braille display or speech recognition to print off and post their absentee ballots without assistance. It has offered to provide the technology for free to other states.

Similar systems are in place in Oregon, Wisconsin, New Hampshire and Alaska.

The NFB sued Maryland successfully in 2014 to implement the online voting tool and the Fourth Circuit affirmed last year in favor of the group after state officials appealed.

But in Ohio, Judge Smith found that introducing the new technology would “fundamentally alter Ohio’s voting system.” He said the plaintiffs knew that the software was available as early as 2012, but did not try to get the technology certified and instead waited until 2015 to take legal action.

“The court encourages both plaintiffs and the Secretary of State to continue to work on this issue and determine if such software could be implemented for future elections, or if some other alternative could be made available such as Braille ballots,” Smith wrote in an 18-page order.

But a three-judge panel of the Sixth Circuit, led by President George W. Bush appointee Judge Richard Griffin, reversed Smith’s decision Monday.

“Without proof that the proposed ADA accommodation is unreasonable or incompatible with Ohio’s election system, defendant’s affirmative defense based on an allegation, alone, is insufficient,” Griffin wrote.

Judge Smith has already addressed the voters’ complaints about accessibility to Ohio’s voter website, ruling in their favor and issuing a permanent injunction. The state has not appealed that ruling, according to the Sixth Circuit.

Judges Richard Suhrheinrich and Raymond Kethledge, also George W. Bush appointees, joined Griffin on the panel.

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