[Nfbv-potomac-announce] FW: noteworthy federal ADA case

[John Halverson]

Hello Colleagues:

This decision was widely distributed in HHS this week.

I thought some of you may find it interesting.

John


-----Original Message-----
From: Halverson, John (HHS/OS) [mailto:John.Halverson at hhs.gov] 
Sent: Friday, February 19, 2016 8:29 AM
To: johnh50 at verizon.net
Subject: FW: noteworthy federal ADA case

 

 

From: HHS Section 508 Program Team [mailto:HHS508PT-L at LIST.NIH.GOV] On
Behalf Of Kaplan, Deborah (OS/ASA)
Sent: Thursday, February 18, 2016 4:55 PM
To: HHS508PT-L at LIST.NIH.GOV
Subject: [HHS508PT] noteworthy federal ADA case

 

The 4th Circuit Court of Appeals just issued an opinion affirming a decision
requiring Maryland to provide an online, accessible absentee voting system
available for people with disabilities to be able to independently fill out
an absentee ballot.  What is interesting about this case is that the state
balked at implementing the accessible solution because of concerns about
security.  So, in this case, accessibility trumped security.  

 

I've attached the pdf from the Court and also made it a text file.  

 

Deborah Kaplan

Section 508 Policy Lead

Office of the CIO

Department of Health and Human Services

Room 330E, Cube 8

200 Independence Ave. SW

Washington, DC 20201

(202) 557-4215 Cell 

 

 

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PUBLISHED 

 

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

 ---


 

No. 14-2001 

 ---


 

NATIONAL FEDERATION OF THE BLIND; KENNETH CAPONE; MELISSA 
RICCOBONO; JANICE TOOTHMAN, 

 

 Plaintiffs - Appellees, 

 

 v. 

 

LINDA H. LAMONE, State Administrator, State Board of 
Elections, in her official capacity; DAVID J. MCMANUS, JR., 
Chairman, State Board of Elections, in his official 
capacity; BOBBIE S. MACK, Member, State Board of Elections, 
in her official capacity; PATRICK J. HOGAN, Member, State 
Board of Elections, in his official capacity; MICHAEL R. 
COGAN, Member, State Board of Elections, in his official 
capacity; KELLY A. HOWELLS, Member, State Board of 
Elections, in her official capacity, 

 

 Defendants – Appellants, 

 

and 

 

AMERICAN COUNCIL OF THE BLIND OF MARYLAND; 
VERIFIEDVOTING.ORG; SAVEOURVOTES.ORG; CINDY LABON; CHARLES 
CRAWFORD; JANE SHEEHAN, 

 

Intervenors. 

 

-------------------------- 

 

CIVIL RIGHTS EDUCATION AND ENFORCEMENT CENTER; MARYLAND 
DISABILITY LAW CENTER; ADAPT MARYLAND; AMERICAN CIVIL 
LIBERTIES UNION; ARC MARYLAND; ARC OF THE UNITED STATES; 
ASSOCIATION OF ASSISTIVE TECHNOLOGY ACT PROGRAMS; DISABILITY 
LAW CENTER FOR VIRGINIA; DISABILITY RIGHTS ADVOCATES; 
DISABILITY RIGHTS BAR ASSOCIATION; DISABILITY RIGHTS 
EDUCATION & DEFENSE FUND; DISABILITY RIGHTS NORTH CAROLINA; 
FREEDOM CENTER; IMAGE CENTER FOR PEOPLE WITH DISABILITIES; 
INDEPENDENCE NOW; JUDGE DAVID L. BAZELON CENTER FOR MENTAL 


HEALTH LAW; LEAGUE FOR PEOPLE WITH DISABILITIES; MARYLAND 
DEVELOPMENTAL DISABILITIES COUNCIL; MARYLAND DISABILITIES 
FORUM; NATIONAL ASSOCIATION OF THE DEAF; NATIONAL DISABILITY 
RIGHTS NETWORK; ON OUR OWN OF MARYLAND; PARALYZED VETERANS 
OF AMERICA; PEOPLE ON THE GO; PROTECTION AND ADVOCACY FOR 
PEOPLE WITH DISABILITIES; SOUTHERN MARYLAND CENTER FOR 
INDEPENDENT LIVING; UNITED SPINAL ASSOCIATION; WEST VIRGINIA 
ADVOCATES; UNITED STATES OF AMERICA, 

 

 Amici Supporting Appellees. 

 

 ---


 

Appeal from the United States District Court for the District of 
Maryland, at Baltimore. Richard D. Bennett, District Judge. 
(1:14-cv-01631-RDB) 

 ---


 

Argued: October 28, 2015 Decided: February 9, 2016 

 ---


 

Before GREGORY, DUNCAN, and FLOYD, Circuit Judges. 

 ---


 

Affirmed by published opinion. Judge Floyd wrote the opinion, 
in which Judge Gregory and Judge Duncan joined. 

 ---


 

ARGUED: Julia Doyle Bernhardt, OFFICE OF THE ATTORNEY GENERAL OF 
MARYLAND, Baltimore, Maryland, for Appellants. Jessica Paulie 
Weber, BROWN, GOLDSTEIN & LEVY, LLP, Baltimore, Maryland, for 
Appellees. Thomas Evans Chandler, UNITED STATES DEPARTMENT OF 
JUSTICE, Washington, D.C., for Amicus United States of America. 
ON BRIEF: Brian E. Frosh, Attorney General of Maryland, OFFICE 
OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for 
Appellants. Daniel F. Goldstein, BROWN, GOLDSTEIN & LEVY, LLP, 
Baltimore, Maryland, for Appellees. Amy F. Robertson, CIVIL 
RIGHTS EDUCATION AND ENFORCEMENT CENTER, Denver, Colorado; 
Alyssa R. Fieo, MARYLAND DISABILITY LAW CENTER, Baltimore, 
Maryland, for Amici Civil Rights Education and Enforcement 
Center, Maryland Disability Law Center, ADAPT Maryland, American 
Civil Liberties Union, Arc Maryland, Arc of the United States, 
Association of Assistive Technology Act Programs, disAbility Law 
Center for Virginia, Disability Rights Advocates, Disability 
Rights Bar Association, Disability Rights Education & Defense 
Fund, Disability Rights North Carolina, Freedom Center, IMAGE 
Center for People with Disabilities, Independence Now, Judge 


David L. Bazelon Center for Mental Health Law, League for People 
with Disabilities, Maryland Developmental Disabilities Council, 
Maryland Disabilities Forum, National Association of the Deaf,
National Disability Rights Network, On Our Own of Maryland, 
Paralyzed Veterans of America, People on the Go, Protection andAdvocacy for People with Disabilities, Southern Maryland Centerfor Independent Living, United Spinal Association, and West 
Virginia Advocates. Vanita Gupta, Principal Deputy Assistant 
Attorney General, Mark L. Gross, Civil Rights Division, UNITEDSTATES DEPARTMENT OF JUSTICE, Washington, D.C., for Amicus 
United States of America.

3


FLOYD, Circuit Judge: 

 Maryland allows any voter to vote via absentee ballot. A 
voter may obtain a blank hardcopy absentee ballot by mail, fax, 
or by downloading and printing one from a website. The hardcopy 
ballot must be marked by hand, signed, and returned via mail or 
hand-delivery to the voter’s local election board. 

 The National Federation of the Blind and individual 
disabled Maryland voters sued state election officials under 
Title II of the Americans with Disabilities Act (“ADA”) and 
Section 504 of the Rehabilitation Act. Plaintiffs allege that 
marking a hardcopy ballot by hand without assistance is 
impossible for voters with various disabilities, and that they 
have therefore been denied meaningful access to absentee voting. 
After a bench trial, the district court found that Maryland’s 
program, as then structured, did not comport with ADA and 
Rehabilitation Act requirements. The district court further 
found that plaintiffs’ proposed remedy—the use of an “online 
ballot marking tool” that would enable disabled voters to mark 
their ballots electronically—was a reasonable modification that 
did not fundamentally alter Maryland’s absentee voting program. 
Defendant election officials now appeal all these aspects of the 
district court’s decision. For the reasons below, we affirm. 

 

 


I. 

A. 

 Elections in the State of Maryland are overseen by the 
State Board of Elections (“Board”). Md. Code Ann., Elec. Law 
§§ 2-101 to 102 (Westlaw current through the 2015 Regular 
Session of the General Assembly) (“Elec. Law”). The Board is 
comprised of five members. Elec. Law § 2-101(a). The Board 
appoints a State Administrator of Elections who is designated as 
“the chief State election official” and tasked with 
administering Maryland’s election apparatus. Id. § 2-103. 

Maryland provides its voters with a number of different 
means to vote. Maryland has nearly 2,000 polling places at 
which a voter may cast a ballot on Election Day. The 
overwhelming majority of these polling places are accessible to 
physically disabled voters and are staffed with election judges 
trained in serving voters with disabilities. The polling place 
voting machines have a number of accessibility features designed 
to assist disabled voters in casting their ballots. Maryland’s 
voting machines allow voters to magnify the font of the ballot, 
to alter the color contrast, and to position the interface 
screen such that voters can sit down while casting their 
ballots. The voting machines can also be programed for non-
visual access by means of an audio ballot; when using the audio 
features a voter receives a headset and numeric keypad to 


navigate the ballot choices. Voters who desire assistance in 
marking their ballots may be assisted by an individual of their 
choosing or by an election judge (in the presence of an election 
judge of another political party). The voting machines are not 
compatible with some common personal accessibility devices such 
as refreshable Braille displays. 

 Maryland also allows voters to vote in person for an eight-
day period before Election Day at sixty-four early voting 
polling stations. All of these early voting polling places are 
physically accessible. 

 Finally, any Maryland voter may vote by absentee ballot. A 
voter can obtain a ballot by mail, fax, or electronically by 
downloading a ballot from a website. A voter who electronically 
downloads an absentee ballot must print out the ballot in 
hardcopy, mark their choices by hand, and then sign and return 
the hardcopy ballot to their local board of elections. An 
absentee voter may designate an agent to pick up and deliver a 
ballot. Absentee voters may also have an individual of their 
choice assist them in hand marking the ballot. 

 

B. 

 Historically, as noted, an absentee voter who obtained an 
absentee ballot electronically needed to print out the blank 
ballot and mark their choices by hand on the printed hardcopy 


7 
ballot. For several years, Maryland has been developing a piece 
of software referred to as an “online ballot marking tool.” The 
tool can be used by absentee voters who choose to obtain their 
absentee ballots electronically; the tool enables voters to mark 
their choices electronically and then print out a completed 
ballot.1 When the ballot is printed, the voter’s selections 
appear on a number of pages followed by a separate signature 
page. The voter must still sign the signature page and return 
the entire hardcopy ballot to the local board of elections. 
Only printed and signed ballots received by a local board of 
elections are counted in determining the result of an election. 
Maryland’s Board developed the online ballot marking tool 
over a number of years, including with the participation of 
plaintiff National Federation of the Blind. The Board has 
solicited feedback and implemented a number of usability and 
accessibility enhancements for disabled voters. The tool is not 
compatible with all computer browsers or operating systems, but 
does function properly with a variety of reasonably up-to-date 
products. Importantly for individuals with certain 
1 The tool provides the voter an interface program on the 
computer they are using. Voters mark their ballots using the 
computer program and are then presented with a review screen 
that allows voters to verify that their selections are accurate. 
When a voter confirms the selections, the computer transmits the 
information to the state election board’s computer server. The 
server generates a marked ballot in the form of a PDF file, 
which the voter can then print out.

disabilities, the ability to use the tool on their own computers 
may enable them to use the personal assistive devices that they 
ordinarily use to interface with the computer, such as a 
refreshable Braille display, to mark their ballot choices. 

 

C. 

An early, non-accessible version of the online ballot 
marking tool was available to absentee voters during Maryland’s 
2012 primary elections. Following the primary elections, a 
question arose as to whether the tool needed to be officially 
certified pursuant to Maryland Election Law Section 9-102, which 
requires certification of any “voting system” prior to use. The 
Maryland Attorney General provided an opinion that the tool did 
not meet the statutory definition of a “voting system” and did 
not require certification. See Certification of Voting Systems 
Does Not Apply to Absentee-Ballot-Marking Wizard, 97 Op. Md. 
Att’y Gen. 32 (2012). However, apparently due to lingering 
concerns over the status of the online ballot marking tool, the 
Board only made the tool available to certain overseas and 
military absentee voters for the 2012 general election. Use of 
the tool in the 2012 primary and general elections was 
apparently uneventful. 

The Maryland General Assembly subsequently clarified the 
status of the tool. In 2013, the General Assembly passed the 


“Improving Access to Voting Act,” 2013 Md. Laws Ch. 157, which, 
among other things, explicitly required the Board to certify any 
online ballot marking tool prior to use by voters. See id. 
(codified at Elec. Law § 9-308.1). Certification requires a 
supermajority: at least four of the five members of the Board 
must vote in favor of certification. See Elec. Law § 2-102(c). 

The Board continued to make improvements to the version of 
the tool that had been used in the 2012 election cycle. In 
particular, the Board implemented certain changes to make the 
tool more accessible to voters with disabilities. Additionally, 
in accordance with the 2013 Improving Access to Voting Act, the 
Board hired an independent consultant, Unatek Inc. (“Unatek”), 
to perform security testing on the tool. Unatek produced a 
report in December 2013 concluding that use of the tool was 
secure. 

In February 2014, the Board met and discussed the online 
ballot marking tool. The Board reviewed the December 2013 
Unatek report and interviewed the report’s author. Some Board 
members continued to express concerns about the security of the 
tool, and the Board did not hold a certification vote. 

The Board subsequently hired a second independent 
consultant, Mainstay Enterprises, Inc. (“Mainstay”), to audit 
the Unatek security report. The Mainstay audit concluded that 
Unatek’s security assessment had followed industry best 


practices. The Board also received and reviewed public comments 
and had Board staff obtain information on the use of similar 
ballot marking tools in other states. 

The certification issue was again discussed at the Board’s 
April 2014 meeting. At the meeting, Mainstay briefed the Board 
on the results of its audit. Some Board members continued to 
express concerns about certification and the Board did not take 
a certification vote. 

 

D. 

On May 19, 2014, plaintiffs sued Linda Lamone, Maryland’s 
State Administrator of Elections, and the five Board members, 
all in their official capacities. At the heart of plaintiffs’ 
suit are claims that Maryland’s absentee voting process violates 
the ADA and the Rehabilitation Act. Plaintiffs sought both a 
declaratory judgment to that effect as well as an injunction 
requiring state election officials to make the online ballot 
marking tool available for use starting with the 2014 general 
election.2 The district court subsequently scheduled a bench 
trial to begin on August 13, 2014. The schedule would provide 

2 Plaintiffs also sought a preliminary injunction requiring 
election officials to make the tool available for the June 24, 
2014 primary election. The district court held a hearing on 
June 11, 2014, and ultimately denied plaintiffs’ request. 


defendants with sufficient time to implement the tool before the 
2014 general election in the event that plaintiffs prevailed. 
While the suit was pending, the Board held a specially-
scheduled meeting on July 10, 2014, with one Board member 
absent. The four Board members in attendance voted 3 to 1 to 
certify the online ballot marking tool. The vote did not 
satisfy the statutory supermajority requirement and the tool was 
not certified. 

The district court held a three-day bench trial beginning 
on August 13, 2014.3 The district court heard testimony on: the 

3 On August 1, 2014, less than two weeks before trial, 
several individuals and entities who were similarly situated to 
plaintiffs here filed a motion to intervene in the case. The 
putative intervenors asserted similar ADA and Rehabilitation Act 
claims, along with additional claims against Maryland state 
officials under 18 U.S.C. § 1983 for various alleged 
constitutional violations. The putative intervenors argued that 
their rights had been violated in ways substantially similar to 
plaintiffs, but sought an almost diametrically opposed remedy—an 
injunction barring certification of the online ballot marking 
tool. Very broadly, the putative intervenors appeared to be 
concerned that the tool plaintiffs sought to require Maryland to 
use was not sufficiently accessible to disabled voters. 

The district court held a conference with all parties and 
the putative intervenors on August 8, 2014. With the agreement 
of the parties, the district court held the motion sub curia and 
permitted the putative intervenors to participate in the trial. 
In its memorandum opinion in this case, the district court 
ultimately granted the motion to the extent of the intervenors’ 
participation up to and through trial, and considered the 
intervenors’ evidence and legal arguments in reaching its 
decision; the district court denied the motion to the extent the 
intervenors sought to assert independent claims against the 
defendants. It does not appear that either the parties or the 


intervenors have appealed any part of the district court’s 
disposition on this issue, and we see no reason to disturb it. 

difficulties disabled voters have experienced while voting; the 
Board’s development of the online ballot marking tool and the 
Board’s deliberation over certification; the accessibility of 
the tool for disabled voters; and the security risks posed by 
the tool. 

The district court found that “the evidence demonstrated 
specific difficulties that some disabled voters have experienced 
while voting,” J.A. 1043, and that “under the current absentee 
ballot voting program, individuals with disabilities such as 
those of the Plaintiffs cannot vote privately and 
independently.” J.A. 1044. The district court credited the 
results of a University of Baltimore usability study that 
concluded the tool was “highly accessible for disabled voters,” 
J.A. 1047-48, though the district court acknowledged that two 
individuals testified that they had difficulty accessing and 
using the tool during a public demonstration period. J.A. 1048. 
The district court found the tool “compatible with reasonably 
up-to-date computer and screen access software,” “designed in 
accordance with the Web Content Accessibility Guidelines,” and 
“compatible with refreshable Braille displays.” Id. The 
district court did find that there were still “challenges to 


private and independent voting by absentee ballot for disabled 
voters even when using the tool,” including that “disabled 
voters may need assistance in signing their ballots before 
submission.” Id. “However, the testimony at trial also 
indicated that, because the signature sheet prints on a separate 
page, the risk of disclosure of a disabled voter’s selections 
was minimalized and, in any event, was significantly less than 
that afforded under the current paper absentee ballot 
system . . . .” J.A. 1048-49. 

With respect to the security risks posed by the online 
ballot marking tool, the district court credited expert 
testimony that the tool “exhibited software independence, 
meaning a change to the voting software used for an election 
cannot cause an undetectable change to the outcome of an 
election” and that “there were no additional risks that did not 
exist in other methods already available to Maryland voters.” 
J.A. 1049. The district court found that the tool was “not 
without some security risks” including that “malware could 
enable [a] third party to observe a voter’s selections” and that 
“a voter’s selections could be captured if a third party 
infiltrated the Board’s server during the time a voter’s 
selections and/or the printable ballot were being transmitted.” 
J.A. 1049-50. Additionally, “[t]here was no evidence at trial 
that the online ballot marking tool had been tested against 


intentional attempts to infiltrate or hack into the Board’s 
server or the tool.” J.A. 1050. 

The district court further found that “it is clear that 
most voters may mark their absentee ballots without assistance” 
and that plaintiffs “should be afforded the same opportunity, 
but the State’s current voting program does not allow for it.” 
J.A. 1055. Based on the facts found at trial, the district 
court concluded that plaintiffs had established that they had 
been denied meaningful access to absentee voting in Maryland in 
violation of Title II of the ADA and Section 504 of the 
Rehabilitation Act. The district court entered a declaratory 
judgment for plaintiffs to this effect. The district court 
further concluded that plaintiffs’ proposed remedy, access to 
the online ballot marking tool, was a reasonable modification 
that did not fundamentally alter Maryland’s voting program. 
Consistent with these conclusions, the district court entered a 
permanent injunction prohibiting defendants from violating 
plaintiffs’ rights under the ADA and the Rehabilitation Act and 
requiring defendants to make the online ballot marking tool 
available to plaintiffs for the 2014 general election. This 
appeal followed. 

 


II. 

We review judgments resulting from a bench trial under a 
mixed standard of review: factual findings may be reversed only 
if clearly erroneous, while conclusions of law are examined de 
novo. Plasterers’ Local Union No. 96 Pension Plan v. Pepper, 
663 F.3d 210, 215 (4th Cir. 2011). We review the grant of a 
permanent injunction for abuse of discretion. Legend Night Club 
v. Miller, 637 F.3d 291, 297 (4th Cir. 2011). 

Defendants’ appeal principally focuses on the district 
court’s three core legal conclusions: (1) that plaintiffs have 
been denied meaningful access to absentee voting in violation of 
the ADA and the Rehabilitation Act; (2) that the online ballot 
marking tool constitutes a reasonable remedial modification; and 
(3) that requiring defendants to allow use of the tool does not 
fundamentally alter Maryland’s voting program. We address each 
of these issues in turn. 

 

III. 

Title II of the ADA provides that “no qualified individual 
with a disability shall, by reason of such disability, be 
excluded from participation in or be denied the benefits of the 
services, programs, or activities of a public entity, or be 
subjected to discrimination by any such entity.” 42 U.S.C. 


16 
§ 12132.4 To make out a violation of Title II, plaintiffs must 
show: (1) they have a disability; (2) they are otherwise 
qualified to receive the benefits of a public service, program, 
or activity; and (3) they were denied the benefits of such 
service, program, or activity, or otherwise discriminated 
against, on the basis of their disability. Constantine v. 
Rectors & Visitors of George Mason Univ., 411 F.3d 474, 498 (4th 
Cir. 2005). 
Only the third of these elements—whether plaintiffs were 
denied the benefits of a public service, program, or activity on 
the basis of their disability—is at issue here.5 Much of the 
4 Section 504 of the Rehabilitation Act similarly provides 
that “[n]o otherwise qualified individual with a disability in 
the United States . . . shall, solely by reason of her or his 
disability, be excluded from the participation in, be denied the 
benefits of, or be subjected to discrimination under any program 
or activity receiving Federal financial assistance.” 29 U.S.C. 
§ 794. “Claims under the ADA’s Title II and the Rehabilitation 
Act can be combined for analytical purposes because the analysis 
is ‘substantially the same.’” Seremeth v. Bd. of Cty. Comm'rs 
Frederick Cty., 673 F.3d 333, 336 n.1 (4th Cir. 2012) (quoting 
Doe v. Univ. of Md. Med. Sys. Corp., 50 F.3d 1261, 1265 n.9 (4th 
Cir. 1995)). Because under the circumstances presented in this 
case plaintiffs’ ADA and Rehabilitation Act claims rise and fall 
together, for simplicity our opinion combines them and 
principally analyzes the ADA claim. Cf., e.g., A Helping Hand, 
LLC v. Baltimore Cty., Md., 515 F.3d 356, 362 (4th Cir. 2008) 
(“Congress has directed courts to construe the ADA to grant at 
least as much protection as the Rehabilitation Act and its 
implementing regulations.”). 
5 Title II allows plaintiffs to pursue three distinct 
grounds for relief: (1) intentional discrimination or disparate 
treatment; (2) disparate impact; and (3) failure to make 
reasonable accommodations. A Helping Hand, LLC, 515 F.3d at 
(Continued)

362. Defendants somewhat mischaracterize plaintiffs’ claims as 
advancing a disparate impact theory of discrimination. See, 
e.g., Br. of Appellants 38. While some sort of disparity will 
necessarily be present in cases of discrimination, that does not 
mean that all discrimination cases are legally evaluated as 
“disparate impact” cases; we do not interpret plaintiffs’ 
arguments as advancing a legal disparate impact theory (and the 
district court did not evaluate them as such). We understand 
plaintiffs to be pursuing their claims on the theory that 
defendants have failed to make reasonable accommodations that 
would afford disabled individuals meaningful access to 
Maryland’s absentee voting program. 

dispute revolves around the proper way to define the scope of 
the relevant public service or program at issue. Plaintiffs 
argue that the appropriate analytic scope is Maryland’s absentee 
voting program. Defendants urge analysis of Maryland’s voting 
program in its entirety, encompassing the various voting 
alternatives—including in-person voting—available to Maryland 
voters. Defendants argue that even if absentee voting is not 
fully accessible, the full accessibility of Maryland’s in-person 
polling places provides disabled voters with meaningful access 
to voting. As explained below, we conclude that defendants’ 
proposed focus is overbroad and would undermine the purpose of 
the ADA and its implementing regulations. 

 

A. 

Defendants’ argument for holistic consideration of 
Maryland’s voting program is in some immediate tension with the 


18 
text of the ADA. Title II states that a disabled individual may 
not be “excluded from participation in or be denied the benefits 
of the services, programs, or activities of a public entity, or 
be subjected to discrimination by any such entity.” 42 U.S.C. 
§ 12132. Defendants’ proposed focus on voting in its entirety 
effectively reads out much of this language, suggesting that 
Title II prohibits only complete exclusion from participation in 
broadly-defined public programs. However, Title II is 
disjunctive. By its own terms it is not limited only to public 
“programs”; it applies to “services, programs, or activities.” 
Id. (emphasis added). Title II does not only prohibit 
“exclusion from participation” in a public program; it also 
separately prohibits “den[ying] the benefits” of that program. 
Id.6 And in addition to those prohibitions, Title II separately 
generally prohibits “discrimination by any [public] entity.” 
Id. Although the bare language of Title II does not 
definitively resolve the question of appropriate scope, it does 
6 The United States, as amicus, suggests that defendants 
would still be in violation of Title II even were we to conclude 
that Maryland’s entire voting program was “the” program subject 
to Title II’s requirements. We acknowledge that it is possible 
to view the ability to vote from the comfort of one’s home as 
one of the “benefits” of Maryland’s overall voting program, the 
denial of which benefit on the basis of disability might support 
a Title II claim. However, given our conclusion below that we 
must evaluate Maryland’s absentee voting program directly, we 
need not address the United States’s contention.

suggest to us that some granularity in analytic focus is 
necessary. 
The Supreme Court has cautioned against defining the scope 
of a public benefit so as to avoid questions of discriminatory 
effects. In Alexander v. Choate, 469 U.S. 287, 301 (1985), a 
Rehabilitation Act case, a unanimous Court counseled that in 
assessing whether a disabled individual had been provided with 
meaningful access to a benefit, “[t]he benefit itself, of 
course, cannot be defined in a way that effectively denies 
otherwise qualified handicapped individuals the meaningful 
access to which they are entitled.” See also id. at n.21 
(citing with approval the government’s statement that 
“[a]ntidiscrimination legislation can obviously be emptied of 
meaning if every discriminatory policy is ‘collapsed’ into one’s 
definition of what is the relevant benefit”). The logic of 
Alexander further suggests that we should proceed cautiously to 
avoid defining a public program so generally that we overlook 
real difficulties in accessing government services. 

Also significant for our analysis of the proper scope of 
review here is the fact that Maryland allows any voter to vote 
by absentee ballot. Elec. Law §§ 9-301, 9-304. Absentee 
ballots are not provided only to a limited set of voters with a 
demonstrated need to vote absentee; they are instead provided to 
the entire Maryland electorate at the option of each individual 


voter. On the whole, then, we think it is far more natural to 
view absentee voting—rather than the entire voting program—as 
the appropriate object of scrutiny for compliance with the ADA 
and the Rehabilitation Act. 

Defendants’ remaining arguments against this 
straightforward conclusion are unpersuasive. Defendants cite an 
ADA-implementing regulation, 28 C.F.R. § 35.150(a), which they 
assert requires a reviewing court to view Maryland’s voting 
program “in its entirety.” However, the cited regulation 
expressly pertains to “existing facilities.” See id. On its 
face, this regulation simply provides that a public entity does 
not have to make each of its facilities accessible as long as 
individuals with disabilities have access to that entity’s 
offered public services. This regulation is targeted 
principally at physical accessibility and allows a public entity 
to provide accessibility alternatives that would not require 
large-scale architectural modifications of existing facilities. 
Accord Constantine, 411 F.3d at 489 (discussing 28 C.F.R. 
§ 35.150(a) and explaining that “structural changes in existing 
physical facilities” are “probably the most expensive 
enterprise” in providing accessibility). 

Other ADA-implementing regulations, however, are applicable 
here and conflict with defendants’ proposed focus on the 
entirety of Maryland’s voting program. As one example, 


21 
28 C.F.R. § 35.130 (“General prohibitions against 
discrimination”) directly implements the general antidiscrimination 
mandate of Title II. Subsection (b)(7) of the 
regulation requires public entities to make certain reasonable 
modifications in “policies, practices, or procedures when the 
modifications are necessary to avoid discrimination on the basis 
of disability”; this regulation clearly contemplates a focus on 
accessibility at a more granular level than entire government 
programs—the level of “policies, practices, and procedures.” 
Id.7 
Defendants also cite to three district court decisions from 
other circuits that they argue stand for the proposition that 
all aspects of a state’s voting program must be viewed together 
when analyzing an ADA claim. Br. of Appellants 55-56. It is 
7 As another example, 28 C.F.R. § 35.160 states that “[a] 
public entity shall take appropriate steps to ensure that 
communications with [disabled persons] are as effective as 
communications with others” and “shall furnish appropriate 
auxiliary aids and services where necessary to afford 
individuals with disabilities . . . an equal opportunity to 
participate in, and enjoy the benefits of, a service, program or 
activity of a public entity.” Id. § (a)(1), (b)(1). The 
requirement to provide “auxiliary aids and services” again 
suggests to us that accessibility cannot be adequately assessed 
at the highest level of program abstraction. The United States 
argues that this particular regulation alone is a sufficient 
basis to affirm the decision here. Br. for United States as 
Amicus Curiae 17-19. We think that the ADA itself and the 
general anti-discrimination regulation discussed above provide 
the most direct resolution in this case. We therefore need not 
consider whether there might be other independent bases that 
support an ADA or Rehabilitation Act claim on the facts here.

not clear to us that the cited cases in fact support defendants’ 
proposition; in any event, we find them unpersuasive. Further, 
later decisions in some of those districts (and decisions by the 
courts of appeals sitting above them), flatly reject the very 
argument defendants advance here. See, e.g., United Spinal 
Ass’n v. Bd. of Elections in New York, 882 F. Supp. 2d 615, 623-
24 (S.D.N.Y. 2012) (“It is abundantly clear that Defendants are 
obligated to provide a level of access to their voting program 
beyond the simple assurance that voters with disabilities are 
able to cast a ballot in some way, shape, or form.”); Disabled 
in Action v. Bd. of Elections in New York, 752 F.3d 189, 198-99 
(2d Cir. 2014) (“[T]o assume the benefit is . . . merely the 
opportunity to vote at some time and in some way [] would render 
meaningless the mandate that public entities may not afford 
persons with disabilities services that are not equal to that 
afforded others.” (quotation omitted)). 

 

B. 

Having determined that Maryland’s absentee voting program 
is the appropriate subject of our ADA analysis, we must 
determine whether absentee voting is accessible to disabled 
individuals as required by statute and implementing regulations. 
As the Supreme Court has explained: 


Congress enacted the ADA in 1990 to remedy widespread 
discrimination against disabled individuals. In 
studying the need for such legislation, Congress found 
that “historically, society has tended to isolate and 
segregate individuals with disabilities, and, despite 
some improvements, such forms of discrimination 
against individuals with disabilities continue to be a 
serious and pervasive social problem.” 

 

PGA Tour, Inc. v. Martin, 532 U.S. 661, 674-75 (2001) (quoting 
42 U.S.C. § 12101(a)(2)). Congress explicitly found that 
discrimination was not limited to “outright intentional 
exclusion,” but was also to be found in “the ‘failure to make 
modifications to existing facilities and practices.’” Id. at 
675 (quoting 42 U.S.C. § 12101(a)(5)). After thorough 
investigation and debate, Congress concluded that there was a 
“compelling need” for a “clear and comprehensive national 
mandate” to both eliminate discrimination and to integrate 
disabled individuals into the social mainstream of American 
life. Id. (internal citations omitted). “In the ADA, Congress 
provided that broad mandate.” Id. 

Congress has explicitly directed the Attorney General to 
promulgate regulations implementing Title II’s 
non-discrimination mandate. 42 U.S.C. § 12134. Pursuant to 
this directive, the Department of Justice (“DoJ”) promulgated a 
number of regulations, including 28 C.F.R. § 35.130. That 
regulation provides: 

A public entity, in providing any aid, benefit, or 
service, may not . . . [a]fford a qualified individual 


with a disability an opportunity to participate in or 
benefit from the aid, benefit, or service that is not 
equal to that afforded others . . . [or] [p]rovide a 
qualified individual with a disability with an aid, 
benefit, or service that is not as effective in 
affording equal opportunity to obtain the same result. 

 

28 C.F.R. § 35.130(b)(1)(ii)-(iii).8 We have recognized that 
“[t]he department’s regulations are the agency’s interpretation 
of the statute, and they are therefore given ‘controlling 
weight’ unless they conflict with other departmental regulations 
or the ADA itself.” Seremeth, 673 F.3d at 338 (citing Stinson 
v. United States, 508 U.S. 36 (1993), and Chevron, U.S.A., Inc. 
v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 844 (1984)). 

8 The Rehabilitation Act’s regulations impose similar 
requirements. See, e.g., 45 C.F.R. § 84.4(b)(1)(ii)-(iii). 

We have little trouble concluding from the record before us 
that Maryland’s absentee voting program does not provide 
disabled individuals an “opportunity to participate . . . equal 
to that afforded others.” See 28 C.F.R. § 35.130(b)(1)(ii). 
The district court found that “it is clear that most voters may 
mark their absentee ballots without assistance.” J.A. 1055. 
This finding is not clearly erroneous. The district court 
further found that Maryland’s current absentee voting program 
does not allow disabled individuals such as plaintiffs to mark 
their ballots without assistance. Id. This finding is also not 
clearly erroneous. This sharp disparity makes obvious that 


defendants have provided “an aid, benefit, or service [to 
disabled individuals] that is not as effective in affording 
equal opportunity to obtain the same result, to gain the same 
benefit, or to reach the same level of achievement as that 
provided to others.” See 28 C.F.R. § 35.130(b)(1)(iii). The 
ADA requires more. 

Defendants do not seriously challenge the district court’s 
factual findings concerning plaintiffs’ current inability to 
vote without assistance. Instead, defendants argue that 
plaintiffs have not been denied meaningful access to absentee 
voting because disabled individuals such as plaintiffs have no 
right to vote without assistance. See Br. of Appellants 59-60. 
This argument simply misapprehends the nature of plaintiffs’ 
claims. 

This case does not turn on whether there is a standalone 
right to vote privately and independently without assistance. 
Plaintiffs’ argument is that defendants have provided such a 
benefit to non-disabled voters while denying that same benefit 
to plaintiffs on the basis of their disability. This is 
precisely the sort of harm the ADA seeks to prevent. Cf., e.g., 
Disabled in Action, 752 F.3d at 199-200 (“Although [plaintiffs] 
were ultimately able to cast their vote with the fortuitous 
assistance of others, the purpose of the Rehabilitation Act is 
‘to empower individuals with disabilities to maximize 


employment, economic self-sufficiency, independence, and 
inclusion and integration into society’ . . . . The right to 
vote should not be contingent on the happenstance that others 
are available to help.” (emphasis by 2d Circuit)(quoting 
29 U.S.C. § 701(b)(1))); Cal. Council of the Blind v. Cty. of 
Alameda, 985 F. Supp. 2d 1229, 1239 (N.D. Cal. 2013) 
(“[R]equiring blind and visually impaired individuals to vote 
with the assistance of a third party, if they are to vote at 
all, at best provides these individuals with an inferior voting 
experience ‘not equal to that afforded others.’” (quoting 
28 C.F.R. § 35.130(b)(1)(ii))). 

Voting is a quintessential public activity. In enacting 
the ADA, Congress explicitly found that “‘individuals with 
disabilities . . . have been . . . relegated to a position of 
political powerlessness in our society, based on characteristics 
that are beyond the control of such individuals.’” Tennessee v. 
Lane, 541 U.S. 509, 516 (2004) (quoting 42 U.S.C. § 
12101(a)(7)). Ensuring that disabled individuals are afforded 
an opportunity to participate in voting that is equal to that 
afforded others, 28 C.F.R. § 35.130, helps ensure that those 
individuals are never relegated to a position of political 
powerlessness. We affirm the district court’s conclusion that 
by effectively requiring disabled individuals to rely on the 
assistance of others to vote absentee, defendants have not 


provided plaintiffs with meaningful access to Maryland’s 
absentee voting program. 

 

IV. 

Determining that plaintiffs have been denied meaningful 
access to absentee voting does not end our analysis. Not all 
public services, programs, or activities can be made 
meaningfully accessible to all citizens, or at least they cannot 
be made so without a prohibitive cost or unreasonable effort on 
the part of the public entity. For this reason, to prevail on 
their ADA claim, plaintiffs must propose a reasonable 
modification to the challenged public program that will allow 
them the meaningful access they seek. See, e.g., Halpern v. 
Wake Forest Univ. Health Scis., 669 F.3d 454, 464 (4th Cir. 
2012) (noting that federal law mandates that federal grantees 
and public accommodations make “reasonable” modifications to 
accommodate persons with disabilities).9 

9 Halpern was a Title III and Rehabilitation Act case. We 
have noted that in general the different language of Titles II, 
III, and the Rehabilitation Act should be construed together to 
the extent possible. Halpern, 669 F.3d at 461-62 (collecting 
cases). 

DoJ regulations implementing the ADA explain that “[a] 
public entity shall make reasonable modifications in policies, 
practices, or procedures when the modifications are necessary to 


28 
avoid discrimination on the basis of disability.” 28 C.F.R. 
§ 35.130(b)(7).10 A modification is reasonable if it is 
“reasonable on its face” or used “ordinarily or in the run of 
cases” and will not cause “undue hardship.” Halpern, 669 F.3d 
at 464 (citing U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 401- 
02 (2002)); cf. Henrietta D. v. Bloomberg, 331 F.3d 261, 280 
(2d. Cir 2003) (stating that the burden of establishing the 
reasonableness of an accommodation is “‘not a heavy one’” and 
that it “is enough for the plaintiff to suggest the existence of 
a plausible accommodation, the costs of which, facially, do not 
clearly exceed its benefits” (quoting Borkowski v. Valley Cent. 
Sch. Dist., 63 F.3d 131, 138 (2d Cir. 1995))). Determination of 
the reasonableness of a proposed modification is generally factspecific. 
Halpern, 669 F.3d at 464. 
The district court here found that plaintiffs’ proposed 
modification—the online ballot marking tool—was both reasonably 
secure and reasonably accessible to disabled voters. Reviewing 
the record as a whole, these findings do not appear clearly 
erroneous and we see no need to disturb them. Further, although 
not determinative by itself, the fact that a version of the tool 
10 The regulations, however, do not require implementation 
of even reasonable modifications where the “public entity can 
demonstrate that making the modifications would fundamentally 
alter the nature of the service, program, or activity.” 
28 C.F.R. § 35.130(b)(7). We address defendants’ “fundamental 
alteration” defense below.

was voluntarily implemented by defendants in the 2012 elections—
“without any apparent incident,” J.A. 1057—speaks to the 
reasonableness of using the tool. Additionally, because the 
tool has already been developed, there does not appear to be any 
substantial cost or implementation burden that would need to be 
borne by Maryland to make the tool available for use. On the 
facts before us, we conclude that plaintiffs’ proposed use of 
the online ballot marking tool is a reasonable modification to 
Maryland’s absentee voting policies and procedures. 

 

V. 

Defendants correctly argue that even a reasonable 
modification to Maryland’s absentee voting program need not be 
made if that modification would “fundamentally alter” the 
program. See 28 C.F.R. § 35.130(b)(7); Halpern, 669 F.3d at 
464. Defendants bear the burden of proving that the requested 
modification would be a fundamental alteration to the program. 
See 28 C.F.R. § 35.130(b)(7). After considering defendants’ 
arguments and reviewing the record as a whole, we conclude that 
they have not met this burden. 

Defendants’ principal argument is that certification of 
voting systems, including certification of the online ballot 
marking tool under Election Law Section 9-308.1, is fundamental 
to Maryland’s voting program. They argue from this that 


30 
requiring them to make the online ballot marking tool available 
for plaintiffs’ use, where that tool has not yet received the 
statutorily-required supermajority vote, works a fundamental 
alteration to Maryland’s voting program. Therefore, defendants 
argue, the district court abused its discretion in enjoining 
them to make the tool available to plaintiffs. We disagree.11 
As an initial matter, the strong form of defendants’ 
argument—that the mere fact of a state statutory requirement 
insulates public entities from making otherwise reasonable 
modifications to prevent disability discrimination—cannot be 
correct. The Constitution’s Supremacy Clause establishes that 
valid federal legislation can pre-empt state laws. Oneok, Inc. 
v. Learject, Inc., 135 S. Ct. 1591, 1595 (2015) (citing U.S. 
Const. Art. VI, cl. 2). The Supreme Court has held that the 
ADA’s Title II, at least in certain circumstances, represents a 
valid exercise of 14th Amendment powers, Lane, 541 U.S. at 533- 
34, and as such it trumps state regulations that conflict with 
its requirements. As the Sixth Circuit has put it, “[r]equiring 
public entities to make changes to rules, policies, practices, 
or services is exactly what the ADA does.” Jones v. City of 
11 Given our conclusion that use of the online ballot 
marking tool does not fundamentally alter Maryland’s program, we 
discern no abuse of discretion in the district court’s decision 
to issue the injunction as the other factors to be considered 
easily weigh in favor of granting injunctive relief. Cf. Legend 
Night Club, 637 F.3d at 302-03.

Monroe, MI, 341 F.3d 474, 487 (6th Cir. 2003) (citing Oconomowoc 
Residential Programs, Inc. v. City of Milwaukee, 300 F.3d 775, 
782-83 (7th Cir. 2002)), abrogated on other grounds by Anderson 
v. City of Blue Ash, 798 F.3d 338 (6th Cir. 2015); accord Mary 
Jo C. v. New York State and Local Ret. Sys., 707 F.3d 144, 163 
(2d Cir. 2013) (“If all state laws were insulated from Title 
II’s reasonable modification requirement solely because they 
were state laws . . . the ADA would be powerless to work any 
reasonable modification in any requirement imposed by state law, 
no matter how trivial the requirement and no matter how minimal 
the costs of doing so.”). 

However, we also think that the converse proposition cannot 
be correct either. Certain requirements of state law could in 
fact be fundamental to a public program in a way that might 
resist reasonable modifications otherwise necessary to bring 
that program into compliance with the ADA. Defendants here urge 
that Maryland’s statutory certification requirement is just such 
an example: certification, they argue, goes to the very heart 
of the voting program by ensuring the integrity of the voting 
process as a whole. Public confidence in elections is 
undoubtedly an important governmental concern. But on the 
record before us defendants simply have not established their 
premise, that is, that use of the online ballot marking tool 
degrades the integrity of Maryland’s voting processes. 


32 
Put another way, defendants are merging Maryland’s 
procedural certification requirement with substantive concerns 
about whether the tool should be certified. The mere fact that 
a procedural requirement has not been met does not necessarily 
mean that the underlying substantive purpose of that requirement 
has not been met. The underlying question is fact-specific. 
See, e.g., Halpern, 669 F.3d at 464-68; cf. Jones, 341 F.3d at 
480 (“In cases involving waiver of applicable rules and 
regulations, the overall focus should be on whether waiver of 
the rule in the particular case would be so at odds with the 
purposes behind the rule that it would be a fundamental and 
unreasonable change.” (quotation omitted)). The relevant 
inquiry here is not whether certification qua certification is 
fundamental to Maryland’s voting program, but whether use of the 
tool without certification would be so at odds with the purpose 
of certification that such use would be unreasonable.12 
Here, the district court found, after a three-day bench 
trial, that the tool is reasonably secure, safeguards disabled 
voters’ privacy, and (in earlier versions at least) has been 
12 The problem with conflating procedure and substance here 
can be illustrated by analogy to the archetypal physical 
accessibility modifications often associated with the ADA. It 
would be difficult for a government entity to resist 
installation of, for example, wheelchair ramps for a new 
courthouse, solely by enacting a law requiring that ramps be 
certified and then declining to certify any ramps.

33 
used in actual elections without apparent incident.13 We do not 
think these findings are clearly erroneous and defendants have 
not provided any substantial reasons that they should be called 
into question. Cf., e.g., Pepper, 663 F.3d at 215 (“[I]f the 
district court's account of the evidence is plausible in light 
of the record in its entirety, we will not reverse the district 
court's finding simply because we have become convinced that we 
would have decided the question of fact differently.” (quoting 
TFWS, Inc. v. Franchot, 572 F.3d 186, 196 (4th Cir. 2009))). On 
the record as a whole, we do not conclude that use of the online 
ballot marking tool is so at odds with the purposes of 
certification that its use would be unreasonable. We agree with 
the district court that defendants have not met their burden to 
show that plaintiffs’ proposed modification—use of the online 
ballot marking tool—would fundamentally alter Maryland’s voting 
program. 
VI. 
We recognize that some of the standard analytic language 
used in evaluating ADA claims—“failure to make reasonable 
accommodations”; “denial of meaningful access”—carries with it 
13 Nothing in the post-trial record indicates any problems 
with the use of the tool by plaintiffs in the 2014 general 
election subsequent to the district court’s decision.

certain negative connotations. We would be remiss in not 
highlighting that the record is devoid of any evidence that the 
defendants acted with discriminatory animus in implementing 
Maryland’s absentee voting program. Indeed, we recognize that 
Maryland’s decision to provide “no excuse” absentee voting to 
all its citizens provides a benefit that is far from universal 
across the United States. 

However, the ADA and the Rehabilitation Act do more than 
simply provide a remedy for intentional discrimination. They 
reflect broad legislative consensus that making the promises of 
the Constitution a reality for individuals with disabilities may 
require even well-intentioned public entities to make certain 
reasonable accommodations. Our conclusions here are not driven 
by concern that defendants are manipulating the election 
apparatus intentionally to discriminate against individuals with 
disabilities; our conclusions simply flow from the basic promise 
of equality in public services that animates the ADA. 

For the foregoing reasons, we affirm. 

AFFIRMED