Hernandez v. New York State Board of Elections
On May 22, 2020, DRA and a coalition of disability organizations filed a lawsuit against the New York State Board of Elections for excluding New Yorkers with disabilities from their Absentee Ballot program, which has expanded in response to COVID-19. The lawsuit charges the state agency with discrimination against voters who are unable to independently and privately mark a paper ballot due to print disabilities, including blindness and low vision, or physical disabilities such as paralysis, dystonia, and tremors.
The lawsuit and preliminary injunction were filed by a coalition of groups, including the American Council of the Blind—New York, Inc., Center for Independence of the Disabled, New York, Disability Rights New York, National Federation of the Blind of New York State, Inc., and several New York voters with disabilities, including Rasheta Bunting, Karen Gourgey, Keith Gurgui, and Jose Hernandez. The National Federation of the Blind of New York State, Inc. is represented by Brown Goldstein & Levy LLP. The American Council of the Blind—New York, Inc. and Center for Independence of the Disabled, New York are represented by Disability Rights Advocates, a national nonprofit legal center.
The impact of the COVID-19 pandemic in the United States is being disproportionately felt by New Yorkers, with confirmed COVID-19 cases at a rate four times greater than any other state and with more than a third of all domestic COVID-19 related deaths in New York. New York’s Governor Cuomo responded to the threat of COVID-19 on to voters by expanding the Absentee Ballot program to allow all voters in New York State to request an absentee ballot for the June 2020 Primary Election. This program requires voters to fill out a paper ballot and return the ballot by mail, providing no alternatives to accommodate individuals with disabilities who are unable to independently and privately read and mark a paper ballot. The need to seek in-person assistance to mark an absentee ballot or to vote in person on Election Day forces individuals with disabilities to choose between their health and their right to vote privately and independently.
The plaintiff organizations have repeatedly informed the New York State Board of Elections about the inaccessibility of paper ballots, to no avail. Federal law requires New York to offer military and overseas voters the option to receive an email ballot. Voters with disabilities could easily mark such a ballot online, increasing their privacy and independence in time for the June 2020 elections, but the Board of Elections has refused to offer this option to voters with disabilities.
New York’s Absentee Ballot program can be made accessible, as Maryland, New Mexico, Colorado, Oregon, Ohio, and West Virginia have done. Defendants are aware of the need for accessibility and the availability of accessible solutions, including a free offering from the state of Maryland, and have refused to implement reasonable modifications to the program.
This lawsuit was filed in the Southern District of New York under Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973. Rather than monetary damages, plaintiffs seek reform to the systems and practices that discriminate against voters with disabilities in time for the June 2020 elections.
Update: On June 3, a federal court has issued an order to the NYS BOE that provides voters a more accessible absentee ballot for the upcoming June 23 Primary Election. The NYSBOE has agreed to email accessible absentee ballots to qualified voters with disabilities. Voters can access an Accessible Absentee Ballot Request Form on the NYS BOE website to request an accessible electronically-delivered absentee ballot. Please see a press release with instructions [here—link to press release]. This agreement does not provide an online ballot submission option, and only applies to the upcoming June election. Plaintiffs will continue their pursuit for a fully accessible absentee ballot for the November 2020 General Election and all subsequent elections.