[NFBMI-Talk] Absent Ballot Case Consent Decree

[terrydeagle at yahoo.com]

Consent Decree

Case 2:20-cv-11023-GAD-MJH ECF No. 31 filed 05/19/20 PageID.336 Page 1 of 10


AIN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN 

 

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MICHAEL POWELL, and FRED WURTZEL, individually and on behalf of those
similarly situated, and, 

Case No. 20-11023 Hon. Gershwin A. Drain Mag. Judge Michael J. Hluchaniuk  

THE NATIONAL FEDERATION OF THE BLIND OF MICHIGAN, 

   

Plaintiffs, 

   

v. 

   

JOCELYN BENSON, MICHIGAN SECRETARY OF STATE, in her official capacity, and 

   

JONATHAN BRATER, MICHIGAN DIRECTOR OF ELECTIONS, in his official capacity, 

   

Defendants.

/ 

  

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CONSENT DECREE JURISDICTION AND VENUE 

The Court has jurisdiction of this matter pursuant to 28 U.S.C. § 1331 and
1343. Venue is appropriate in this District pursuant to 28 U.S.C. § 1391. 

BACKGROUND 

1. 

On April 25, 2020, Plaintiffs, Michael Powell and Fred Wurtzel, individually
and on behalf of others similarly situated, and the National Federation of

 

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the Blind of Michigan (“NFBMI”) filed a Complaint and Motion for Preliminary
Injunction against Defendants, Michigan Secretary of State Jocelyn Benson

and Director of Elections Jonathan Brater (“Defendants”), in their official
capacities, alleging that Defendants were violating Title II of the
Americans

with Disabilities Act (“ADA”), 42 U.S.C. § 12131 et seq., and the Michigan
Persons with Disabilities Civil Rights Act, MCL § 37.2301 et seq., by
failing

to provide an absentee/mail-in voting system that is fully accessible to
individuals who are blind or have print disabilities for Elections scheduled
for

May, August, and November, 2020, and thereafter. 

2. 

Defendants deny the allegations in the Amended Complaint and Motion for
Preliminary Injunction and assert that their entry into this Consent Decree
does

not constitute an admission of liability, wrongdoing, or violation of the
ADA, or any other statute, regulation, or provision of any federal or state
law.

 

3. 

Plaintiffs Powell and Wurtzel are blind individuals who are registered to
vote in Michigan, and desire to exercise their right to vote by absentee
ballot

in an accessible and independent manner. 

4. 

Plaintiff NFBMI is the Michigan affiliate of the National Federation of the
Blind, an organization of individuals who are legally blind. The NFBMI is a

501(c)(3) non-profit corporation made up of blind Michiganders and their
families and friends. The organization promotes the general welfare of the
blind

by assisting the blind in their efforts to integrate themselves into society
on terms of equality and by removing barriers that result in the denial of

opportunity to blind persons in virtually 

Case 2:20-cv-11023-GAD-MJH ECF No. 31 filed 05/19/20 PageID.338 Page 3 of 10


every sphere of life. 

5. 

Defendant Secretary Benson is the chief election officer of the State of
Michigan and has supervisory control over local election officials in the
performance

of their duties under the Michigan Election Law, MCL 168.1 et seq. In this
capacity, she oversees Michigan’s absentee voting program and maintains and

operates the Secretary of State’s voter information website. 

6. 

Defendant Director Brater is vested with the powers and shall perform the
duties of the Secretary of State under the Secretary’s supervision with
respect

to the supervision and administration of elections laws. 

7. 

This Consent Decree is entered into by Plaintiffs and Defendants
(collectively “the Parties”) and resolves the allegations set forth above. 

8. 

The parties agree it is in their collective best interest to resolve this
lawsuit on mutually agreeable terms without further litigation. Accordingly,

the Parties agree to the entry of this Consent Decree, subject to the
approval of this Court, without trial or further adjudication of any issues
of fact

or law raised in Plaintiffs’ Amended Complaint. 

In resolution of this action, the Parties hereby AGREE and the Court
expressly APPROVES, ENTERS, AND ORDERS the following: 

I. 

DEFINITIONS 

The following terms shall have the following meanings with respect to this 

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Agreement. All other terms shall be interpreted according to their plain and
ordinary meaning: 

1. 

Unless otherwise provided in this Agreement, technical terms used in this
Agreement have the same meaning as provided in the Web Content Accessibility

Guidelines (“WCAG”) 2.0 published by the World Wide Web Consortium (“W3C”),
available at www.w3.org/TR/WCAG/. The term “WCAG 2.0 AA” as used in this
Agreement

incorporates the WCAG 

2.0

Level A and Level AA Success Criteria. “Accessible Forms” are forms,
applications, ballots, or transactions that are electronically fillable and
submissable,

produce a savable confirmation of submission for users, are provided in an
HTML format option, and are compliant with WCAG 

2.0

AA. 

2. 

“Print disabilities” are disabilities that interfere with the effective
reading, writing, or use of printed material. This definition includes
persons

who are visually impaired, those with learning disabilities, as well those
with a physical disability that interferes with holding and manipulating
paper

or a pen or pencil. 

3. 

“Conformance” and “conform” have the same meaning as used in WCAG 

2.0

AA. 

4. 

“Effective Date” is the date of the last signature on this Agreement. 

5. 

“Voting Program” includes, but is not limited to: (i) the opportunity
provided to Michigan residents to vote privately and independently in-person
at designated

Polling Places or to vote by mail/absentee in lieu of voting in person; (ii)
the provision of sample ballots to Michigan residents in advance of
Elections;

and (iii) the processes for Michigan voters to request, receive, mark and
submit ballots. 

II. 

REQUIREMENTS 

Pursuant to the terms of this Consent Decree, by June 25, 2020, Defendants
will implement the following: 

1. 

Shall not exclude individuals with print disabilities, including Plaintiffs 

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and their members, from participation in, or deny them the benefits of, the
Voting Program’s services, programs, or activities, or subject them to
discrimination

with respect to Michigan’s Voting Program, 42 U.S.C. § 12132, unless the
individual is otherwise ineligible from participating in the Voting Program
under

state or federal law. 

2. 

Shall not provide individuals with print disabilities, including Plaintiffs
and their members, an unequal opportunity to participate in or benefit from

aids, benefits, or services, or provide an aid, benefit, or service that is
not as effective in affording equal opportunity to gain the same result or

benefit as provided to others with respect to Michigan’s Voting Program, 28
C.F.R. § 35.130(b)(1)(ii)-(iii), unless the individual is otherwise
ineligible

from participating in the Voting Program under state or federal law. 

3. 

Shall take the necessary and timely steps to ensure that it furnishes
appropriate auxiliary aids and services where necessary to afford
individuals with

print disabilities, including Plaintiffs and their members, an equal
opportunity to participate in, and enjoy the benefits of, the services,
programs,

and activities of Michigan’s Voting Program, 28 

C.F.R.

§ 35.160(b)(1), unless the individual is otherwise ineligible from
participating in the Voting Program under state or federal law. Nothing in
this order

should be interpreted to require the Defendants to provide software or
hardware technical support. 

4. 

Voting at Polling Places. Defendants shall continue to ensure that all
persons with print disabilities have an opportunity that is equal to the
opportunity

the State affords to all other persons to vote privately and independently
at their designated, local Polling Place, by using an accessible voting
machine.

 

5. 

Voting by Mail. Defendants shall ensure that all persons with print
disabilities have an opportunity that is equal to the opportunity Michigan
affords

to all other persons to vote privately and independently by mail, 

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subject to the provisions of this paragraph. 

a. 

So that it may be used for the August 2020 Election, Defendants shall
acquire a remote accessible vote-by-mail system (“RAVBM”) that shall allow
voters

with print disabilities to review and mark vote-by-mail ballots
electronically, privately and independently, in accordance with the
following: 

i. 

At least 15 days before purchasing any RAVBM for the August 2020 election,
Defendants shall notify Plaintiffs in writing of which RAVBM they intend to

acquire, including identifying information such as the name, model number,
and vendor, a summary description of the system and how it achieves
accessibility,

how accessibility will be monitored and maintained, and how complaints
regarding accessibility will be addressed; provided that, if it is
impractical to

provide 15 days notice prior to purchasing a system for use in the August
2020 Election, Defendants shall notify Plaintiffs as far in advance of the
purchase

as possible. Defendants and Plaintiffs will commit to seeking a protective
order in the event that Defendants need to share draft purchasing and other

materials prior to those materials being made public. 

ii. 

If unforeseen circumstances beyond the state’s control make it impracticable
to acquire a RAVBM in time for the August 2020 Election, Defendants will
inform

plaintiffs immediately and no later than June 29, of the unforeseen
circumstances and their impact on acquisition of the RAVBM. In such an
event, Defendants

will implement an expansion of the state’s UOCAVA voting system to people
with print disabilities, in a manner similar to that described in the
Stipulation

and Consent Order Resolving Plaintiffs’ Motion for Temporary Restraining
Order in this Action dated May 1, 2020, for the August 2020 Election. All
other

requirements of this Consent Decree that are not impracticable will remain
in effect. 

Case 2:20-cv-11023-GAD-MJH ECF No. 31 filed 05/19/20 PageID.342 Page 7 of 10


b. 

Beginning with the August 2020 Election, and in each Election thereafter for
the term of this Agreement, unless a change in federal law requires
otherwise,

Defendants shall, consistent with the time frame for providing absent voter
ballots: 

 

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i. 

Provide accessible, electronic forms in HTML format through which voters
with disabilities can independently request vote-by-mail ballots and certify
that

they are voters with disabilities. Such certification shall be no more  

  

burdensome for voters with disabilities than is required by the laws and
regulations that govern RAVBM;  

ii. 

Provide a mechanism for voters who certify that they are voters with
disabilities and that their disability is unlikely to improve in the
foreseeable future

to be placed on a Permanent Accessible Absent Voter Application List if
their jurisdiction of residence maintains a Permanent Absent Voter
Application

List and be provided prior to all future elections an electronic application
form to apply for ballots that can be marked using the RAVBM, on the same

terms and conditions as members of the jurisdiction’s Permanent Absent Voter
Application List;  

iii. 

Notify the public of the availability of the accessible request system and
the RAVBM, and post information about the RAVBM in the same locations where

Defendants provide information about other means of mail-in/absentee voting,
including posting step-by-step instructions for how to use the RAVBM on the

Secretary of State Website;  

iv. 

Train all county and local Election officials regarding the accessible
request and RAVBM through the same methods by which they train county and
local

Election officials on other voting processes;  

v. 

Send or train local or county election officials to send voters with
disabilities electronic ballots that can be marked using the RAVBM, along
with instructions

on how to use the 

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RAVBM to mark and print their ballots;  

vi. 

Permit voters with disabilities to use the acquired RAVBM to review and mark
their vote-by-mail ballots electronically and to print and return those
marked

ballots for counting; and  

vii. 

Train local election officials to accept and tabulate all ballots properly
completed using the RAVBM that are received by the time polls close on the
day

of the election. 

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6. 

Reporting. Within 45 days after the August 4, 2020, Primary Election, and
within 90 days after the November 3, 2020 Election, Defendants will provide
Plaintiffs

a report for the preceding Election containing the following information: 

a. 

The number of individuals with disabilities who requested an accessible
ballot; 

b. 

The number of individuals who accessed the RAVBM; and 

c. 

Descriptions of any complaints or feedback received from voters with
disabilities regarding attempts to use or use of the RAVBM and descriptions
of how

any complaints were resolved. 

III. 

NOTICE TO PUBLIC 

Within 10 days of the Effective Date of this Consent Decree, Defendants
shall issue a press release, in accordance with their ordinary procedures
for doing

so, regarding the Consent Decree, and post a copy of this Consent Decree on
the Secretary of State Website, along with a summary of its requirements. 

IV. 

ATTORNEYS’ FEES AND COSTS 

Within 30 days of the Effective Date of this Agreement, Defendants shall pay
$124,258.25 to the trust account of Nyman Turkish PC for Plaintiffs’
attorneys

fees and costs. Payment will be sent to Plaintiffs’ attorneys at the
following address: 20750 Civic Center Drive, Suite 290, Southfield, Michigan
48076.

 

Case 2:20-cv-11023-GAD-MJH ECF No. 31 filed 05/19/20 PageID.344 Page 9 of 10


V. 

RELEASE 

Plaintiffs waive and release any claims against Defendants and their agents,
successors, and assigns, including claims for declaratory and injunctive
relief

and attorneys’ fees and costs, that are based on the allegations raised, or
which could have been raised, in the complaint or amended complaint. 

VI. 

TERM OF AGREEMENT 

The term of this Agreement shall be 30 months from the Effective Date. 

VII. 

NOTICES 

Any notice or communication provided under this Agreement shall be made in
writing and shall be delivered or sent by way of the U.S. Postal Service,
private

commercial carrier, hand delivery, facsimile transmission, or electronic
mail to the addresses below or to such other addresses as may be specified
in

writing by any Party: 

1. 

To Plaintiff National Federation of the Blind of Michigan: Eve L. Hill,
Brown, Goldstein & Levy LLP, 120 East Baltimore Street, Suite 1700,
Baltimore,

Maryland 21202, ehill at browngold.com 

2. 

To Plaintiffs Michael Powell and Fred Wurtzel: Jason M. Turkish, Nyman
Turkish PC, 20750 Civic Center Drive, Suite 290, Southfield, Michigan 48076.
Jason.Turkish at nymanturkish.com

 

3. 

To Defendants: Erik A. Grill, Assistant Attorney General, P.O. Box 30736,
Lansing, MI 48909. grille at michigan.gov 

IN WITNESS WHEREOF, the Parties hereto, intending to be legally bound, have 

caused this Consent Decree to be executed as of the date set forth below. 

Case 2:20-cv-11023-GAD-MJH ECF No. 31 filed 05/19/20 PageID.345 Page 10 of
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SO ORDERED this 19th day of May 2020. 

s/Gershwin A. Drain Hon. Gershwin A. Drain United States District Judge 

The signatories represent that they have the authority to bind the
respective Parties identified below to the terms of this Consent Decree. 

AGREED AND CONSENTED TO: 

/s/ Eve Hill /s/ Jason M. Turkish Eve Hill (MD Federal Bar# 19938) Jason M.
Turkish (P76310) BROWN, GOLDSTEIN & LEVY LLP Ryan T. Kaiser (P79491) 120 E.

Baltimore St., Ste. 1700 Melissa M. Nyman (CA Bar # 293207) Baltimore, MD
21202 NYMAN TURKISH PC Phone: 410-962-1030 20750 Civic Center Dr., Ste. 290
Fax:

410-385-0869 Southfield, MI 48076 ehill at browngold.com Phone: 248-284-2480 

Fax: 248-262-5024 Counsel for Plaintiff The Jason.Turkish at NymanTurkish.com
National Federation of the Ryan.Kaiser at NymanTurkish.com Blind of Michigan
Melissa.Nyman at NymanTurkish.com

 

/s/ Erik A. Grill David Mittleman Erik A. Grill (P64713) David Mittleman
(P37490) Heather S. Meingast (P55439) GREWAL LAW, PLLC Assistant Attorneys
General

2290 Science Parkway 

P.O. 

Box 30736 Okemos, MI 48864 Lansing, Michigan 48909 Phone: 517-393-3000
517.335.7659 Fax: 517-393-3003 Email: grille at michigan.gov
dmittleman at 4grewal.com

P64713 

Counsel for Defendants Counsel for Plaintiffs Powell and Wurtzel

 



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