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.
For information on how to get an accessible absentee ballot, click here.
Update 2: On August 19, a federal court issued an order to the NYS BOE that provides voters a more accessible absentee ballot for the upcoming November 3, 2020 General Election.
- Qualified New York voters with disabilities can request an accessible absentee ballot until October 27, 2020 by filling out the PDF Accessible Absentee Ballot Request Form on the NYS BOE website, and mailing, faxing, or emailing the request to their local board of elections. A typed signature on this form is sufficient. The County Board of Elections will mail the voter a pre-paid postage return envelope for the return of the ballot.
- Qualified New York voters with disabilities outside of New York City will receive an emailed accessible PDF ballot, which they must fill out, print, and mail or hand deliver to their local county board of elections.
- Qualified New York voters with disabilities inside New York City will receive and fill out html ballots using the Democracy Live voting portal. They still must print and mail or hand deliver their ballots to their local county board of elections. The deadlines are as follows:
- U.S. Mail ballots must receive a postmark no later than Election Day, November 3rd.
- Ballots may be hand-delivered to the County Board of Elections Office or an active poll site no later than Election Day, November 3rd by 9pm.
- Ballots may be hand-delivered to an early voting poll site between October 24th and November 1st.
Plaintiffs will continue to fight for a fully accessible absentee ballot for subsequent elections.
Update 3: On April 5, 2022, a federal court approved and ordered the terms of a settlement agreement, under which NYSBOE will create a statewide program allowing blind and disabled voters to fill out a remote, accessible vote-by-mail ballot online, print it out, and mail or return it to their county board of elections.
The settlement requires NYSBOE to choose a remote accessible vote-by-mail (RAVBM) system that allows blind people and people with print disabilities to use their own computers to read and mark a ballot, using their own screen-reader software that converts the ballot content into spoken words or into Braille displayed on a connected device. NYSBOE must also create a statewide portal that voters can use to request an accessible absentee ballot and train each of the fifty-eight county boards of elections on the use of the RAVBM system. The county boards of elections will provide return envelopes for the ballots, just as they do for paper absentee ballots. The inside oath envelope into which the ballot is to be placed must have a tactile marking indicating where it is to be signed, and NYSBOE will instruct county boards of elections to accept a signature anywhere on the envelope. County boards will also be required to help voters who do not have their own printers to facilitate the printing of their ballots. NYSBOE will also pay attorney’s fees and costs of $400,000.
- April 6, 2022: Litigation against New York State Board of Elections Resolved, New York to Create Statewide Accessible Absentee Ballot Program
- June 3, 2020: Agreement Made for June Accessible Absentee Voting Program
- May 22, 2020: Coalition of Disability Groups Demand Access to New York’s Inaccessible Absentee Voting