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National Federation of The Blind, Inc. v. Lamone

United States District Court, D. Maryland

September 4, 2014

NATIONAL FEDERATION OF THE BLIND, INC., et al. Plaintiffs,
v.
LINDA H. LAMONE, et al. Defendants.

MEMORANDUM OPINION

RICHARD D. BENNETT, District Judge.

The focus of this case is an unassumingly-named piece of software-the "online ballot marking tool." Maryland law allows absentee ballot voters to receive their ballots electronically, and the online ballot marking tool would allow voters to also mark their ballots electronically before printing them for submission.[1] The State of Maryland has been developing this software for the past several years. The Plaintiff National Federation of the Blind has participated in that development process, and the Maryland Board of Elections has solicited and implemented its feedback. An earlier version of the tool was available to all voters during the 2012 primary election and to some overseas voters during the 2012 general election. Those earlier uses of the tool appear to have been uneventful, and there has been no evidence of security breaches connected to that use. Nevertheless, despite the successful use of this tool, it is presently not being made available for the 2014 general election.

In response to an opinion issued by the Maryland Attorney General's Office that the tool was not a "voting system, " the Maryland General Assembly passed a statute in 2013 requiring that the tool be certified by the Maryland Board of Elections before it could be used in further elections. The current version of the tool now includes accessibility features for disabled voters thanks to the Board's work with Plaintiff National Federation of the Blind, and this new version is capable of implementation for the 2014 general election. However, the Board has not certified the tool and, therefore, the State does not plan to make the tool available to any voters for the upcoming election.

The Plaintiffs in this case[2] have sued Linda Lamone, the State Administrator of the Maryland State Board of Elections ("the Board"), and the individual members of the Board[3] for violation of Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101-12213, and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794;[4] specifically, Plaintiffs complain that they are unable to privately and independently participate in the State's absentee ballot voting program. Plaintiffs request that this Court order the Board to make the online ballot marking tool available to them in the upcoming 2014 Maryland general election.

Subsequently, a coalition of three individuals and three organizations (the "Putative Intervenors")[5] filed a Motion to Intervene in this action in order to assert their own claims against the Defendants and to essentially bar certification of the online ballot marking tool. After a conference call with the parties, this Court decided to permit the Putative Intervenors to participate in the case on a provisional basis and hold the motion sub curia for decision at a later date.

This Court held a three-day bench trial on August 13, 14, and 26, 2014 and has carefully considered the exhibits introduced into evidence, the testimony of the witnesses who testified in person, the written submissions of the parties, and the oral arguments of counsel.[6] For the reasons stated herein, the Putative Intervenors' Motion to Intervene (ECF No. 21) is GRANTED IN PART and DENIED IN PART; specifically, the motion is granted to the extent the Putative Intervenors have participated thus far, but it is denied to the extent that the Putative Intervenors attempt to assert independent claims against the Defendants.

The following also constitutes this Court's findings of fact and conclusions of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure with respect to the bench trial. This Court finds that Plaintiffs have been denied meaningful access to the State's absentee ballot voting program as mandated by the Americans with Disabilities Act and the Rehabilitation Act. This Court also finds that allowing the Plaintiffs to use the online ballot marking tool is a reasonable and necessary modification to the State's program, and further finds that the use of such an aid in the 2014 general election would not constitute a fundamental alteration of that program and would not impose an undue financial or administrative burden. Accordingly, the accompanying Order enters Judgment in favor of Plaintiffs with respect to Plaintiffs' claims and the Defendants are hereby ORDERED that it shall make the online ballot marking tool available to Plaintiffs for the 2014 general election.

I. FACTUAL AND PROCEDURAL BACKGROUND

Individual Plaintiffs Kenneth Capone, Melissa Riccobono, and Janice Toothman are Maryland voters with various disabilities. Plaintiff Kenneth Capone has cerebral palsy and cannot use his arms or legs; Plaintiff Melissa Riccobono is blind; and Plaintiff Janice Toothman is blind and deaf.

Due to their disabilities, Individual Plaintiffs have difficulty voting without assistance. Plaintiffs also prefer to vote by absentee ballot and wish to do so in the upcoming Maryland general election. Individuals who choose to vote by absentee ballot receive their ballots by mail or fax, or by downloading a ballot from the Board's website. Regardless of the method of delivery, voters currently must mark their ballots by hand before submitting them. Although the State has developed a fully-functional online ballot marking tool, the Board has not certified the tool, which is a requirement of implementation under state law. See Md. Code, Elec. Law § 9-308.1.

Plaintiffs filed the present action on May 19, 2014 after the Board failed to hold a vote to certify the online ballot marking tool at the Board's April 2014 meeting. Specifically, Plaintiffs sued Linda Lamone, the State Administrator of the Maryland State Board of Elections ("the Board"), Bobbie Mack, the Chairman of the Board, David McManus, Vice Chairman of the Board, and Patrick Hogan, Janet S. Owens, and Charles Thomann, as members of the Board, for violation of Title II of the Americans with Disabilities Act, 42 U.S.C. § 12101-12213, and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. The main thrust of their suit focuses on the State's absentee ballot procedures; Plaintiffs specifically seek to force the State to make the online ballot marking tool available to them for the 2014 general election. When Plaintiffs initially filed this action, they also moved the Court for a preliminary injunction "prohibiting the Board from violating Title II of [the ADA] and Section 504 of the Rehabilitation Act of 1973... and requiring the Board to make the online ballot marking tool available for the June 24, 2014 primary election and all future elections." See Pls.' Mot. Prelim. Inj., ECF No. 3. This Court held a hearing on June 11, 2014, and ultimately declined to order a preliminary injunction. See Order, ECF No. 12. However, this Court scheduled a bench trial for August 13 and 14, 2014 so that, if Plaintiffs were to prevail, the State could still implement the online ballot marking tool before absentee ballots are sent out to voters on September 19, 2014.

On August 1, 2014, several individuals and three entities (the "Putative Intervenors") filed a Motion to Intervene (ECF No. 21). The Putative Intervenors include Charles Crawford, Jane Sheehan, Cindy LaBon, the American Council of the Blind of Maryland, Verified Voting.org, and SAVEourVotes.org.[7] The Putative Intervenors also attached a proposed Complaint (ECF No. 21-2) to their Motion to Intervene in which they asserted several claims against the named Defendants, including a claim for violation of the ADA and Section 504 of the Rehabilitation Act (Count I); a 28 U.S.C § 1983 claim for violation of the Equal Protection Clause of the Fourteenth Amendment (Count II); a § 1983 claim for violation of the Substantive Due Process Clause of the Fourteenth Amendment (Count III); a § 1983 claim for violation of the Equal Protection Clause arising out of the state-created right to a secret ballot (Count IV); and a § 1983 claim for violation of the First Amendment Right to Freedom of Speech (Count V).

On August 8, 2014, this Court held a conference call with counsel for all parties, including the Putative Intervenors, in order to discuss the best way to proceed in light of the Motion to Intervene. Ultimately, this Court, with the agreement of the parties, opted to hold the Motion to Intervene sub curia and to allow the Putative Intervenors to participate at the trial, which remained scheduled for August 13 and 14, 2014.[8] This Court also issued a letter order (ECF No. 29) setting additional scheduling deadlines in order to allow all parties to participate under fair time constraints while also allowing the case to proceed on the expedited schedule necessary for resolving these matters before the Maryland general election.

II. MOTION TO INTERVENE

As a preliminary matter, this Court will first resolve the pending Motion to Intervene (ECF No. 21), which this Court has held sub curia until this point. Intervention is governed by Rule 24 of the Federal Rules of Civil Procedure, which provides in pertinent part:

(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action:
...
(2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.
(b) Permissive Intervention. Upon timely application anyone may be permitted to intervene in an action:
(1) In General. On timely motion, the court may permit anyone to intervene who:
...
(B) has a claim or defense that shares with the main action a common question of law or fact.
...
(3) Delay or Prejudice. In exercising its discretion, the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties' rights.

Fed. R. Civ. P. 24.

As this Court suggested during the August 8, 2014 teleconference on the Motion to Intervene, Putative Intervenors have proceeded under a theory of permissive intervention pursuant to Rule 24(b). A district court has broad discretion over determinations of permissive intervention. See Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 351 n.4 (1983). In general, "liberal intervention is desirable to dispose of as much of a controversy involving as many apparently concerned persons as is compatible with efficiency and due process." Feller v. Brock, 802 F.2d 722, 729 (4th Cir. 1986) (internal quotation marks omitted).

It should be noted at the outset, however, that the Putative Intervenors' position in this suit is somewhat atypical. Unlike the normal case where the intervenor seeks to join the litigation on one side or another, the Putative Intervenors essentially argue that the Defendants have violated their rights in ways similar to the Plaintiffs, but they also attempt to assert independent claims against the Defendants and seek relief that is directly opposed to that sought by the Plaintiffs.[9] For example, with respect to the Putative Intervenors' disability discrimination claim, the Putative Intervenors seek to show that the same legal conclusion as the Plaintiffs-that the Defendants have violated the ADA and Rehabilitation Act by preventing disabled individuals from participating in absentee ballot voting-but they desire to present evidence that the online ballot marking tool is not a reasonable modification under the ADA and Rehabilitation Act and they demand an injunction against any future certification and use of the online ballot marking tool.[10]

Turning first to the Putative Intervenors' § 1983 claims, the Court notes that permissive intervention on these counts would inject a variety of other legal issues into the case. In light of the condensed time-frame under which this case must proceed, expansion of the scope of this litigation is inappropriate as such expansion would merely delay this Court's decision in this pressing matter.[11]

The Putative Intervenors' claim under the ADA and Rehabilitation Act (Count I) presents a somewhat closer question because both the Plaintiffs' claims and the Putative Intervenors' Count I raise common issues of law and fact regarding the accessibility and security of the online ballot marking tool. However, the unusual posture of this case (noted above) presents this Court with two complex questions-one procedural, one substantive. The first is an issue of standing.[12] Although standing is typically treated as a matter of subject matter jurisdiction, the issue in this case did not fully arise until the last day of trial. In their closing arguments and again in their Proposed Findings of Fact and Conclusions of Law, the Putative Intervenors for the first time argued that a demonstration of Article III standing is unnecessary for a party seeking permissive intervention under Rule 24(b).[13] By a post-trial letter (ECF No. 57), Plaintiffs have argued that a showing of Article III standing is necessary where an intervenor attempts to assert an independent claim for relief. After reviewing the parties' submissions and conducting its own research, this Court notes that the precise issue appears to be unresolved in the United States Court of Appeals for the Fourth Circuit.[14]

The second issue is whether a disabled individual may maintain a cause of action under the ADA and Rehabilitation Acts in order to prevent a particular accommodation from being implemented. This issue, while alluded to by Plaintiffs at various times throughout the litigation, has not been extensively briefed or argued.

As these complicated and nuanced issues were not raised by Plaintiffs' original claims, it is clear that permitting the Putative Intervenors to assert their own claims against the Defendants would significantly expand the scope of this litigation. Moreover, this Court would be forced to address these issues with very limited argument from the parties and under pressing time constraints. Accordingly, this Court finds that ...


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