Federal judge: Absentee voters with print disabilities can choose individual helping them

IL file photo

Ahead of early voting for the November general election, an Indiana federal judge has ordered that voters with print disabilities can choose who will assist them in marking their paper absentee ballots.

Judge Jane Magnus-Stinson of the U.S. District Court for the Southern District of Indiana on Sept. 2 granted declaratory judgment to several individuals and disability advocacy organizations, finding Indiana’s current procedures for absentee voting discriminate against voters with print disabilities under the American Disabilities Act and the Rehabilitation Act of 1973.

In December 2020, the American Council of the Blind of Indiana, the Indiana Protection and Advocacy Services Commission, Kristin Fleschner, Rita Kersh and Wanda Tackett filed suit against the Indiana Election Commission, its members in their official capacities, the Indiana secretary of state, the Indiana Election Division and its co-directors of the IED in their official capacities.

“I am glad that this order recognizes what we’ve been saying since we filed this case: that Indiana’s absentee voting system discriminates against blind people and voters with print disabilities like me,” said Tackett in a press release. “It is my sincere hope that this order will push the state to respect my rights, and the rights of those like me, to have a fully accessible absentee voting experience.”

The plaintiffs argued the exclusion of blind voters from Indiana’s absentee voting program amounted to discrimination under Title II of the ADA and Section 504 of the Rehabilitation Act.

“The disagreement between Plaintiffs and Defendants in this case boils down to the tension between theory and reality,” Magnus Stinson wrote in issuing the Sept. 2 order. “The State of Indiana has established a method of voting for individuals with print disabilities under the (Uniformed Overseas Citizens Absentee Voting Act) Scheme that, in theory, would solve the problem of discrimination in absentee voting. However, that method of voting has yet to become a reality.”

An individual with a “print disability” cannot independently mark a paper ballot or ballot card due to blindness, low vision, or a physical disability that limits manual dexterity.

In March, Magnus Stinson ordered for partial injunctive relief  ahead of the May 2022 primary election, ruling that the use of a traveling absentee voter board should be permissive rather than mandatory for voters with print disabilities.

“Because the circumstances concerning voting by Traveling Board have not materially changed since the issuance of the Amended Preliminary Injunction, the Court now grants in part Plaintiffs’ Motion for Summary Judgment and Permanent Injunction, or in the Alternative a Preliminary Injunction, to the extent that it seeks a preliminary injunction making the use of the Traveling Board permissive, rather than mandatory, for voters with print disabilities seeking to vote absentee by mail pursuant to Ind. Code § 3-11-10-24 in the upcoming November 2022 General Election,” the order states.

“Voters with print disabilities may complete their mail-in ballots with the assistance of an individual of their own choosing, as long as the individual is not the voter’s employer, an officer of the voter’s union, or an agent of the voter’s employer or union,” the order continued.  “Defendants shall notify county election boards that they must accept and count such ballots if otherwise valid. Upon resolution of the issue of remedy for the discrimination in Indiana’s current absentee voting procedures, the propriety of this preliminary injunction may be reevaluated.”

Magnus-Stinson noted that further proceedings addressing the issue of remedy for the discrimination in Indiana’s absentee voting procedures are necessary, and as such, no final judgment would be issued “at this time.”

Additionally, Magnus-Stinson denied the plaintiffs’ request for permanent injunctive relief requiring the defendants to implement a web-based RAVBM tool. She also denied the defendant’s motion seeking judgment that their absentee voting procedures do not discriminate against voters with print disabilities.

Indiana Disability Rights and Disability Rights Advocates, who represent the parties in the suit, praised the September decision.

“Judge Magnus-Stinson’s ruling strikes down Indiana’s rule that absentee voters with print disabilities may only vote absentee by scheduling an appointment with a ‘traveling board’ in the general election,” the organization said in a press release. “The traveling board rule was the most restrictive in the country for voters with disabilities and prohibited at least one voter from casting a ballot in the 2020 election.”