Federal judge makes traveling voter boards permissive, not mandatory, in win for blind, print-disabled voters

While the U.S. District Court for the Southern District of Indiana expressed it was “gravely concerned” about the current procedures in place for allowing blind and print-disabled Hoosiers to vote absentee, it determined it was only able to provide partial injunctive relief ahead of the May 2022 primary election. But disability rights organizations say the order puts an end to the country’s “most restrictive” rule regarding mandatory traveling voter boards for voters with print disabilities.

Judge Jane Magnus-Stinson of the U.S. District Court for the Southern District of Indiana on Wednesday ruled that the use of a traveling absentee voter board should be permissive, rather than mandatory for voters with print disabilities.

That ruling came after the American Council of the Blind of Indiana, the Indiana Protection and Advocacy Services Commission, Kristin Fleschner, Rita Kersh and Wanda Tackett in December 2020 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. The plaintiffs argued the exclusion of blind voters from Indiana’s absentee vote-from-home program amounted to discrimination under Title II of the American Disabilities Act and Section 504 of the Rehabilitation Act of 1973.

The plaintiffs filed a motion for preliminary injunction in advance of the May primary election, which makes use of a traveling absentee voter board permissive, rather than mandatory, for voters with print disabilities and directs the state to provide a web-based absentee ballot marking and submission option, known as a Remote Accessible Vote-by-Mail, for voters with print disabilities to use with assistive technology. Magnus-Stinson granted the injunction as to the former but not the latter request.

Disability Rights Advocates and Indiana Disability Rights celebrated that decision in a Thursday news release.

“I tried so hard to make an appointment with the traveling board in the 2020 Presidential Election, but they never came, and I never got to vote at all,” plaintiff Tackett said in the news release. “I’m so relieved that no one will have to go through that 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 may vote in one of four ways absentee: early in-person voting, absentee voting by mail, voting with assistance of the traveling board or via the Uniformed and Overseas Citizens Absentee Voting Act.

Pursuant to Indiana’s Senate Enrolled Act 398, which took effect on July 1, 2021, voters with print disabilities were added to the list of voters eligible to vote under the UOCAVA scheme, which permits absentee voting by postal mail, email or fax for military and overseas voters.

In September of last year, the secretary of state issued an “Order Adopting Absentee Procedures for Voters with Print Disabilities” addressing the procedures for implementing SEA 398 and permitting voters with print disabilities to vote under the UOCAVA model. The order provides that voters with print disabilities will have access to a combined voter registration and absentee ballot application which is “substantially similar to” the form used by military and overseas UOCAVA voters.

After completing and returning the combined form, qualifying voters with print disabilities will be sent: (1) an absentee voter bill of rights; (2) a voluntary waiver of secret ballot form, which authorizes election officials to transfer the choices marked on the absentee ballot onto paper that can be read by voting machines; (3) an absentee ballot; and (4) any county-specific instructions developed by the board of elections of the voter’s county. The voter must then complete and sign the absentee ballot and the secrecy waiver, if voting by fax or email, and return those documents to their county election officials.

However, the issue raised by the plaintiffs was that voters with print disabilities are unable to affix their signature or mark to a document using traditional methods, and many cannot sign a document using a computer mouse or touch-sensitive device. Additionally, the plaintiffs contended there was nothing in the order requiring that state and county boards of elections take any steps to ensure that absentee ballots, county-specific voting instructions or the absentee voter bill of rights — which are necessary for voting under the UOCAVA scheme —  be accessible to voters with print disabilities or comply with the Web Content Access Guidelines established by the international World Wide Web Consortium.

“Defendants intend to create these documents and make them accessible using .pdf software, but Defendants have not yet begun developing these documents or making efforts toward making these documents accessible or WCAG compliant,” according to the Indiana Southern District Court’s order.

“Furthermore, given that ballots are complex documents and that Indiana’s 4,500 voting precincts in 92 counties will need to produce between 2,500 and 3,500 different ballot forms for the primary election, it is exceedingly unlikely that all of the necessary documents could be developed in accessible form prior to election day,” the order states. “… As a result, the only absentee voting option that currently permits voters with print disabilities to vote from home is using a Traveling Board. The Traveling Board scheme significantly interferes with a blind or print disabled person’s ability to vote privately and independently.”

Magnus-Stinson added, “… Plaintiffs are likely to succeed on the merits of their claims challenging Indiana’s current absentee voting procedures under the ADA and the Rehabilitation Act.”

Thus, she ordered the defendants to make the use of a traveling board permissive, rather than mandatory, for voters with print disabilities seeking to vote absentee by mail in the upcoming primary election.

“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 states. “Defendants shall notify county election boards that they must accept and count such ballots if otherwise valid.”

“Voting by traveling board in 2020 was not only inconvenient, but also I was not able to vote privately and independently,” plaintiff Fleschner said in the news release. According to Disability Rights Advocates, Fleschner had to make a traveling board appointment to vote in 2020, but when the traveling board arrived, they asked her mother to complete her ballot, defeating the purpose of their visit.

“(Wednesday’s) order bodes very well for our lawsuit and our request to make absentee voting private, independent, and accessible to all people,” she said.

However, the court denied the request that the defendants implement an RAVBM voting option in advance of the upcoming election.

“The Court reiterates that its partial denial of Plaintiffs’ motion is without prejudice to Plaintiffs’ ability to file a renewed motion seeking injunctive relief relating to future elections,” Magnus-Stinson wrote. “Although binding caselaw prevents the Court from addressing obvious problems with Defendants’ current absentee voting procedures in advance of the May 3, 2022 primary election, the Court is gravely concerned about those issues and expects Defendants to increase their efforts to remedy those problems in advance of future elections.”

The parties were ordered to appear at a status conference in three months, which will be set in a separate order. At that conference, the defendants, in person, “must be prepared to update the Court regarding the status of absentee voting for voters with print disabilities and all of the issues raised in connection with plaintiffs’ current motion.”

Further, the court ordered the defendants to gather data on the following items in connection with the May 3 election, with the purpose of measuring the success of the defendants’ current plan for accessible absentee voting:

• How many voters — and specifically, how many voters with print disabilities — completed the absentee ballot application and registration form contemplated by SEA 398 and the UOCAVA scheme under Indiana Code § 3- 11-4-6.
• How many voters with print disabilities were successfully registered and approved to vote absentee under SEA 398 and the UOCAVA scheme.
• How many accessible ballots were sent out to voters with print disabilities.
• How many accessible ballots were started, completed, accepted and counted, and rejected.

The case 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 members of the Indiana Election Commission, Indiana Secretary of State, Indiana Election Division and co-directors of the Indiana Election Division, 1:20-cv-03118.