Hernandez v. New York State Board of Elections

USDC SDNY

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK DOC #:

□□ nnn nnn nana nnn nna emnmnnannne DK DATE FILED:_ 8/14/2020

JOSE HERNANDEZ, ET AL,

Plaintiffs,

: 20-cv-4003 (LJL)

~ OPINION &

NEW YORK STATE BOARD OF ELECTIONS, ET AL, : ORDER

Defendants.

LEWIS J. LIMAN, United States District Judge:

Plaintiffs move for a preliminary injunction requiring Defendants to implement an

effective and purpose-built Remote Accessible Vote-by-Mail (“RAVBM7”) system for use by

persons with disabilities across New York State when they vote in the November 3, 2020

election. For the following reasons, the preliminary injunction is denied.

BACKGROUND

The plaintiffs in this lawsuit (“Plaintiffs”) challenge the New York State Board of

Elections (“NYS BOE”) and, in their official capacities, its Commissioners and Co-Executive

Directors (together with the NYS BOE, “Defendants”’) for operating an absentee voting program

that is inaccessible to New Yorkers with disabilities. Plaintiffs are individuals and organizations.

The individuals (“Individual Plaintiffs”) are voters who, due to print disabilities, are unable to

independently mark a paper ballot. The organizations (“Organizational Plaintiffs”) are advocacy

groups whose missions are to support people with disabilities. Plaintiffs bring their claims under

Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12131 et seg. (““ADA” or

“Title IT”) and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq.

(“Rehabilitation Act” or “Section 504”).

In September 2019, the President of the National Federation of the Blind submitted a

letter to Defendants advising them that “the right of many absentee voters with disabilities to

mark their ballots privately and independently continues to be denied due to the implementation

of inaccessible systems that require them to depend on others to assist them in the ballot-marking

process.” (Dkt. No. 8, Ex. A.) “In advance of the 2020 elections,” the letter continued, “I am

writing to remind you of your obligation, as required by federal law and recent court decisions,

to provide voters with print disabilities an accessible way to privately and independently mark an

absentee ballot.” (Id.) The letter advised Defendants of “a number of accessible absentee ballot-

marking systems available for use” including the Maryland State Board of Elections’s tool

(“available at no charge”), Five Cedars, Democracy Live, Dominion Voting, and Prime III. (Id.)

The letter “strongly encourage[d]” Defendants to implement such a system for use in the 2020

elections. (Id.) Defendants did not respond. (Dkt. No. 1 ¶ 93.)

In April and May of 2020, Plaintiffs’ counsel held a series of virtual roundtable

discussions with New Yorkers regarding absentee voting and accessibility. (Id. ¶ 95.) By that

time, New York City was the epicenter of the COVID-19 pandemic in the United States.

Accordingly, New York’s Governor, Andrew Cuomo, issued a series of executive orders related

to absentee voting.

On March 7, 2020, Executive Order 202 declared a disaster emergency for the entire

State of New York. On April 9, 2020, Governor Cuomo issued Executive Order 202.15,

providing that, “due to the prevalence and community spread of COVID-19, an absentee ballot

[that] can be granted based on ‘temporary illness’” (which, under regular circumstances, entitles

an individual to vote absentee) could be granted under circumstances where “temporary illness”

includes “the potential for contraction of the COVID-19 virus for any election held on or before

June 23, 2020.” On April 24, 2020, Governor Cuomo issued Executive Order 202.23, which

provided that all eligible voters would be “sent an absentee ballot application form with a

postage paid return option for such application,” in addition to having any other ballot request

options then available (telephonic, electronic, or via Internet). On May 1, 2020, Governor

Cuomo issued Executive Order 202.26, which stated that “the board of elections shall provide

and maintain, in its office, a voting system that is accessible for voters wishing to mark their

ballot privately and independently, and provided that availability of this service shall be posted

on the website of each board of elections.”

On May 5, 2020, Plaintiffs’ counsel requested that Defendants implement an online

absentee ballot delivery and marking system and a consistent protocol for requesting disability

accommodations in advance of the June 23, 2020 election. (Dkt. No. 8, Ex, C.) On May 15,

2020, Plaintiffs’ counsel wrote a follow-up letter. (Id., Ex. F.) On May 19, 2020, Defendants

responded by letter, stating: “In relation to ‘at home’ ballot marking for voters with disabilities,

[NYS BOE] is currently working on solutions that are consistent with New York law and that

address various security concerns.” (Id., Ex. G.) The following day, Defendants’ counsel

informed Plaintiffs’ counsel that, for the June 23, 2020 election, voters with print disabilities

who needed an accommodation to vote privately and independently would have to visit a local

board of elections if they wanted to mark their paper absentee ballot using a ballot marking

device (“BMD”). (Dkt. No. 1 ¶ 101.)1 BMDs provide accessibility features for voters with print

1 The allegations in the Complaint regarding these communications were not contradicted.

2 The Court also ensured that no party objected to the hearing being conducted telephonically

with the presiding judge located outside the District. (Dkt. Nos. 85, 90.)

3 Plaintiffs asked the Court to take judicial notice of additional evidence in their letter. (Dkt. No.

96.) That request is improper and the Court will not receive the evidence. The evidence, which

disabilities, but only if they travel in person to a board of elections office or polling place. (Id. ¶

60; Dkt. No. 8, Ex. G.) Upon Plaintiffs’ belief, Defendants were offering no accessible means

for voters with print disabilities to receive, mark, or submit an absentee ballot privately and

independently from home. (Dkt. No. 1 ¶ 62.) In other words, Plaintiffs and their members

would be forced into “the position of choosing between their fundamental right to a private and

independent vote and their personal health and safety.” (Dkt. No. 8 at 3.)

Plaintiffs filed their Complaint on May 22, 2020. (Dkt. No. 1.) The same day, Plaintiffs

moved for a preliminary injunction requiring Defendants to immediately provide an electronic

ballot marking system for the upcoming elections. (Dkt. No. 8.) Plaintiffs’ preliminary

injunction motion identified accessible PDF ballots as one such marking system. At that time,

Defendants were refusing to provide accessible PDF ballots to voters with print disabilities. (Id.

at 3.) Lou Ann Blake, the Deputy Director of the National Federation of the Blind Blindness

Initiatives, submitted a declaration stating that, “[a]s a general matter, by using Adobe, making

an existing PDF ballot ‘readable’ (for individuals with print disabilities who use screen readers

such as Job Access With Speech (‘JAWS’)) and ‘fillable’ (meaning that bubbles appearing

within the PDF can be filled in electronically in order to indicate a selection made by the user) is

straightforward.” (Dkt. No. 8-8 ¶ 15.) She noted that “other options are available to New York

in the long term” but that “making the current PDF ballot for military and overseas voters

accessible and available to voters with print disabilities would improve access to absentee voting

for people with disabilities in the short term.” (Id. ¶ 18.) The relief sought by the May 22, 2020

motion was confined to the June 23, 2020 election. (Trans. of 5.22.2020 Hearing at 6.)

On June 2, 2020, the parties reached a stipulation regarding absentee voting procedures

for the June 23, 2020 election (the “June Stipulation”). (Dkt. No. 38.) The June Stipulation was

expressly “without prejudice to the assertion of any claims, arguments, contentions and defenses

whether or not otherwise alleged in the Complaint.” (Id. at 2.) It also provided that nothing

therein would be “deemed an admission by either party.” (Id.) The June Stipulation provided, in

relevant part, as follows:

Defendants agree to instruct county boards of elections to provide by email an

accessible fillable PDF absentee ballot (“accessible absentee ballot”) to voters

who have a disability that prevents them from privately and independently using a

paper absentee ballot.

Defendants agree to announce the new accessible absentee ballot program in a

press release and on the NYSBOE website by June 3, 2020.

Defendants agree to issue written mandatory instructions on or before

Wednesday, June 3, 2020 that comprehensively instruct county boards of

elections how to 1) provide the accessible absentee ballot request form on their

respective websites, 2) process accessible absentee ballot requests, and 3) deliver

and receive accessible absentee ballots.

Defendants agree that voters may submit an electronic request for an accessible

absentee ballot at any time up until June 16, 2020, seven (7) days prior to the June

23, 2020 Elections.

Defendants agree to instruct county boards of elections to make available to the

voter an accessible absentee ballot “as soon as practicable” upon the voter’s

request, pursuant to N.Y. Election Law § 8-406.

Defendants agree that upon receipt of a voter’s request for an accessible absentee

ballot, county boards of elections or their agents will, pursuant to mandatory

directive of the NYSBOE, generate a ballot that is screen readable using common

assistive technology, such as Job Access with Speech “JAWS” software, Apple

VoiceOver, and Android TalkBack, which shall include insertion of tags and

fillable objects so that it can be completed independently and privately by the

requesting individual using standard, accessible technology, namely a screen

reader program. The accessible absentee ballot shall meet WCAG 2.0 AA

standards for a PDF.

Defendants agree that it will instruct county boards of elections that the ballot will

be accompanied with accessible instructions on how to return the ballot, including

instructions to place the ballot in an envelope and sign the back of the envelope.

Defendants agree that this Stipulation pertains only to the June 23, 2020 Primary

Election, and that this Stipulation does not apply to any subsequent elections or

resolve issues that may remain in Plaintiffs’ Complaint.

Within 45 days after the June 23, 2020 Primary Election, Defendants shall publish

a publicly-available report containing the following information: a. The number

of individuals with disabilities who requested an accessible absentee ballot; b. The

number of individuals who were provided an accessible absentee ballot; and c.

Descriptions of any complaints or feedback received from voters with disabilities

regarding accessible absentee ballots and descriptions of how any complaints

were resolved.

In consideration for entering into this Stipulation, Plaintiffs hereby agree to

withdraw their PI/TRO Motion.

(Id.)

On July 9, 2020, the Court received a letter from Plaintiffs requesting a briefing schedule

for a new preliminary injunction motion addressing the matter of accessible absentee ballots for

the November 3, 2020 general election. (Dkt. No. 49.) The Court granted the application, which

provided for a response to be due on August 7, 2020 and which did not provide for any reply

brief. (Dkt. No. 50.) The Court set a preliminary injunction hearing for August 11, 2020. (Id.)

Pursuant to the proposed schedule, Plaintiffs filed their second motion for a preliminary

injunction. (Dkt. No. 55.) On August 3, 2020—before Defendants filed their response—

Plaintiffs sought leave to file a reply brief with supplemental facts in support of their preliminary

injunction motion. (Dkt. No. 68.) Specifically, Plaintiffs hoped to submit additional expert

testimony regarding the technology they were asking Defendants to adopt for the November

election. Following a conference with the parties, the Court permitted Plaintiffs to submit any

additional facts no later than August 6, 2020 and extended Defendants’ deadline to respond to

the preliminary injunction motion until August 10, 2020. (Dkt. No. 72.) Plaintiffs were

permitted to file a reply brief by August 11, 2020 and the preliminary injunction hearing was

reset to August 13, 2020. (Id.) The Court invited testimony from any witness that either side

wished to call. (Dkt. Nos. 85, 91.) 2 Each side rested at the end of the hearing. (Trans. of

8.13.2020 Hearing at 93–94.) The Court also invited and has considered five-page supplemental

briefs from each side addressing the evidence at the hearing.3 (Dkt. Nos. 95, 96, 98, 99.)4

Plaintiffs’ live preliminary injunction motion seeks to require Defendants to implement

an effective and purpose-built RAVBM system for use across New York State for the November

3, 2020 election. (Dkt. No. 56 at 1.)5 With RAVBM systems, the voter is not delivered a PDF

by the local county board of elections that has to be read by a screen reader. Rather, the local

board of elections sends raw ballot data to a vendor and the vendor then produces an accessible

HTML ballot from that raw data. The ballots are “created and delivered” in a “fully screen-

reader compatible” format, permitting the voter to mark the ballot in HTML. (Dkt. Nos. 74, 76,

92.) The ballot is converted into an accessible PDF only when it comes time to print. (Dkt. No.

76 ¶ 6.)

Plaintiffs emphasize that an RAVBM system can produce accessible ballots for every

potential voter in advance, unlike the measures established by the June Stipulation, which tried to

remediate existing documents after a request for an accessible absentee ballot was made. (Id.)

Plaintiffs also note that an RAVBM system can ensure that the ballots are compatible with all of

the common assistive software and operating systems used by people with print disabilities. (Id.)

2 The Court also ensured that no party objected to the hearing being conducted telephonically

with the presiding judge located outside the District. (Dkt. Nos. 85, 90.)

3 Plaintiffs asked the Court to take judicial notice of additional evidence in their letter. (Dkt. No.

96.) That request is improper and the Court will not receive the evidence. The evidence, which

is submitted for the truth of the matter asserted therein, is not subject to judicial notice and the

Court closed the hearing on August 13, 2020. However, in an excess of caution, the Court has

reviewed the evidence. Even if it were admissible, it would not change the Court’s findings or

conclusions.

4 The Court accepts Dkt. No. 98 as Plaintiffs’ letter-brief.

5 Plaintiffs express no opinion regarding whether New York State should offer multiple RAVBM

systems or only one. (Dkt. No. 56 at 1 n1.) Nor do they seek an order compelling the NYS BOE

to procure an RAVBM from a specific vendor.

They have listed several potential RAVBM systems including Prime III, Democracy Live, Five

Cedars, Dominion, and Maryland’s online ballot marking system. (Id. at 8; Dkt. No. 78 at 14–

15.)

The motion asserts that Individual Plaintiffs and members of the Organizational Plaintiffs

faced substantial challenges when attempting to cast their votes on June 23, 2020 using the

remediated ballot system. (Id. at 2.) For evidentiary support, Plaintiffs have offered declarations

from eight voters residing in New York City or four other counties of New York:

• Justin Young (Dkt. No. 58). Young is a resident of Monroe County. He complains about

the process for receiving his absentee ballot. At first, he encountered difficulty filling out the

application for an absentee ballot because instructions were located at the bottom of the page

rather than the top, so he did not come across them while filling out the form using his screen

reading software. Later, when he called the Monroe County Board of Elections (any Board

of Elections is hereinafter abbreviated “BOE”), the representative did not know that

accessible absentee ballots existed and transferred him to another representative, who told

Young that “there was no such thing as an email ballot in New York,” notwithstanding the

fact that accessible PDF ballots are necessarily conveyed via email. When Young called

back on a later date, he experienced a similar situation. He “went in circles” with the

representative who ultimately told him that she “had no idea” what he was talking about.

Young received three absentee ballots—two standard ballots in the mail and one accessible

ballot via email. Ultimately, he was ultimately able to complete the ballot and vote

electronically.

• Maria Kristic (Dkt. No. 59). Kristic is a resident of Albany County. She successfully

submitted an accessible absentee ballot application but the ballot she received was not fully

accessible with her screen reader. She found lists of the delegates via Google on third-party

websites to identify the names of those for whom she wished to vote. Kristic encountered

confusion with the printing instructions but was ultimately able to print and mail the ballot

herself. Still, due to the technological issues, she asked her father to double-check the

printed ballot.

• Meghan Parker (Dkt. No. 60). Parker, like Kristic, is a resident of Albany County and had

difficulty with the ballot generated by Albany County. The ballot did not link any

information connecting the delegates with the candidate or party those delegates were

supposed to represent. The ballot also would read out choices she had already heard or give

only a few choices when she knew there were more. Ultimately, she gave up and used

sighted assistance to fill out her ballot.

• Keith Gurgui (Dkt. No. 63). Gurgui is a resident of Ulster County. He requested and

received an accessible absentee ballot electronically from the Ulster County BOE. He was

able to mark it using his computer. But he received assistance from his father to take the

printed ballot from the printer, sign the BOE-provided oath envelope, fold the ballot, insert

the folded ballot into the oath envelope, insert the oath envelope into the BOE-provided

mailing envelope, and drop the absentee ballot in the mail. He would require a fully online

absentee ballot system (including electronic ballot submission) in order to vote privately and

independently.

• Robin Mayr (Dkt. No. 65). Mayr is a resident of Suffolk County. She had difficulty

completing the accessible absentee ballot application due to accessibility issues. She tried for

nearly an hour but was unable to address the problem. Ultimately, her husband completed

the application for her using his iPad. After submitting the application, she did not receive

any confirmation that it had been received by the Suffolk County BOE. When she called to

inquire, the representative had “never heard of accessible absentee ballots.” The following

week, someone called her back and told her that the application had been received but that it

would not open. Her husband resent the application. After that, the Suffolk County BOE

representative confirmed that it had been received. Mayr received an absentee ballot but it

also had accessibility issues. The software could not tell her which candidate was associated

with which check box, so she could not cast her vote privately. Her husband had to fill out a

paper absentee ballot for her so that she could cast her vote.

• Karen Luxton Gourgey (Dkt. No. 62). Gourgey is a resident of New York City. She

applied for, and was sent, a link to the primary accessible absentee ballot. It came up as an

HTML that was easy to fill out with her JAWS screen reader. But her computer is not

connected to a printer. She had expected the absentee ballot to be an accessible PDF file that

she could save and attach to an email or transfer to a USB drive. If that had been the case,

she would have been able to print it from her husband’s computer, which does not have

screen reader software, but is connected to their printer. But she could not figure out how to

save the accessible absentee ballot because it was not a PDF file. She called the New York

City BOE but they could not help her. Ultimately, her husband filled out the accessible

absentee ballot on his computer while she dictated her choices to him. If she had understood

what file format would be used for her accessible absentee ballot, she would have planned

differently by downloading a trial version of JAWS onto her husband’s computer, so that she

could have completed and printed the absentee ballot privately and independently.

• Jose Hernandez (Dkt. No. 64). Like Gurgui, Hernandez is a resident of New York City

who requested and received an accessible absentee ballot electronically from the New York

City BOE, which he marked and printed at home. However, he received assistance from his

aid worker to take the printed ballot from the printer, sign the oath envelope, insert the folded

ballot into the oath envelope, insert the oath envelope into the mailing envelope, and drop the

ballot in the mailbox. In order to vote privately and independently, Hernandez needs a

system that includes electronic ballot submission.

• Rasheta Bunting (Dkt. No. 66). Bunting is also a resident of New York City, who

experienced significant difficulties filling out and submitting an application for an accessible

absentee ballot. It took her nearly an hour because every time she typed a letter, she had to

listen to the software read through the entire application before she could type the next letter.

She never received confirmation that her application was received. When election day came,

she still had not received a ballot. She decided to walk with her daughter to the nearest

polling station and cast her vote in-person, despite the fact that she was concerned about

doing so in light of the fact that she lives with her parents who are senior citizens with

chronic health conditions.6

Defendants oppose implementation of an RAVBM system. They do not dispute that they

have an obligation to provide an accessible absentee voting system for individuals with print

disabilities. But they insist that the procedures in the June Stipulation, along with certain “key

improvements” they will make (which, together with the June Stipulation, are hereinafter called

the “Proposed Measures”), satisfy that obligation. (Dkt. No. 79 at 1.) The “key improvements”

are: (1) preparing accessible ballots at the time ballots are created to avoid the need for

cumbersome, time-consuming “retrofitting,” and (2) providing additional guidance and training

to county boards in implementing the accessible ballots. (Id.; Dkt. No. 95.) With respect to (1),

Defendants clarified at oral argument that the counties will be required to generate a ballot that is

screen readable using common assistive technology, which will include insertion of tags and

fillable objects so that it can be completed independently and privately by the requesting

individual using standard, accessible technology, namely a screen reader program, and which

will meet WCAG 2.0 AA standards for a PDF, in advance of any request being made by a voter

for such ballot. (Trans. of 8.13.2020 Hearing at 47.) In other words, each one of New York’s

58 counties will prepare in advance a ballot that is screen readable using common assistive

technology, regardless whether that county received a request in connection with the June

primary and regardless whether it can expect to receive such a request in connection with the

November general election. Defendants challenge the technical feasibility, monetary costs, and

6 Defendants do not dispute any of the facts recited by these declarants but they assert that New

York City has no record of Bunting applying for an absentee ballot. (Trans. of 8.13.2020

Hearing at 71.)

personnel utilization costs of an RAVBM system. (Dkt. No. 79 at 20.)

The Court has now received full written briefing and oral argument from both sides. It

has also received declarations from both sides. The Court also heard live testimony, under oath,

from Thomas Connolly, Director of Operations for NYS BOE. Both sides had the opportunity to

examine Connolly and to present any other witnesses they desired to present. Having considered

the motion, the relevant facts, and the applicable law, the following constitutes the Court’s

ruling, which incorporates its findings of fact and conclusions of law.

LEGAL STANDARDS

A preliminary injunction is an “extraordinary remedy.” Weinberger v. Romero-Barcelo,

456 U.S. 305, 312 (1982). Ordinarily, a movant must show: (1) irreparable harm absent

injunctive relief; (2) a likelihood of success on the merits; (3) public interest weighing in favor of

granting the injunction; and (4) that the balance of equities tips in her favor. Yang v. Kosinski,

960 F.3d 119, 127 (2d Cir. 2020).7 “But where the movant is seeking to modify the status quo

by virtue of a mandatory preliminary injunction (as opposed to seeking a prohibitory preliminary

injunction to maintain the status quo), or where the injunction being sought will provide the

movant with substantially all the relief sought and that relief cannot be undone even if the

defendant prevails at a trial on the merits, the movant must also: (1) make a strong showing of

irreparable harm, and (2) demonstrate a clear or substantial likelihood of success on the merits.”

Id. at 127–28 (internal quotation marks and citation omitted). Moreover, where movants seek a

mandatory injunction against government action taken pursuant to a valid statutory scheme, they

must demonstrate all of the following factors: (1) a clear or substantial likelihood of success on

7 When the Government is a party, it is appropriate to consider the third and fourth factors

“together.” New York v. United States Dep't of Homeland Sec., 2020 WL 4457951, at *30 (2d

Cir. Aug. 4, 2020).

the merits; (2) irreparable harm absent the granting of injunctive relief; and (3) that the public

interest weighs in favor of granting the injunction. See Pope v. County of Albany, 687 F.3d 565,

570 (2d Cir. 2012); Friends of the E. Hampton Airport, Inc. v. Town of E. Hampton, 841 F.3d

133, 143 (2d Cir. 2016).8

“In order to establish a violation under the ADA, the plaintiffs must demonstrate that (1)

they are ‘qualified individuals’ with a disability; (2) that the defendants are subject to the ADA;

and (3) that plaintiffs were denied the opportunity to participate in or benefit from defendants’

services, programs, or activities, or were otherwise discriminated against by defendants, by

reason of plaintiffs’ disabilities.” Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003)

(citing Doe v. Pfrommer, 148 F.3d 73, 82 (2d Cir. 1998)). “Because Section 504 of the

Rehabilitation Act and the ADA impose identical requirements,” courts “consider [such] claims

in tandem.” Rodriguez v. City of New York, 197 F.3d 611, 618 (2d Cir. 1999).

The ADA’s implementing regulations provide that “[a] public entity shall operate each

service, program, or activity so that the service, program, or activity, when viewed in its entirety,

is readily accessible to and usable by individuals with disabilities.” 28 C.F.R. § 35.150. Further,

they direct that:

(b)(1) [a] public entity 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 . . . [and that]

8 Defendants argue that Plaintiffs face a heightened burden of persuasion on all of the elements

for the injunction they seek because of the unique posture of their request (a mandatory one

sought close in time, on a preliminary record, that would affect voting procedures). (Dkt. No. 79

at 11 (citing Veasey v. Perry, 135 S. Ct. 9, 10 (2014) (“[C]ourts must take careful account of

considerations specific to election cases.”); Purcell v. Gonzalez, 529 U.S. 1, 4–5 (2006);

Republican Nat'l Comm. v. Democratic Nat'l Comm., 140 S. Ct. 1205, 1207 (2020)); Dkt. No. 95

at 5.) Plaintiffs disagree. (Dkt. No. 56 at 10.) The Court need not resolve that dispute because

the result described herein would obtain even if Defendants’ proposed heightened standard did

not apply.

(b)(2) [i]n determining what types of auxiliary aids and services are

necessary, a public entity shall give primary consideration to the requests of

individuals with disabilities. In order to be effective, auxiliary aids and services

must be provided in accessible formats, in a timely manner, and in such a way

as to protect the privacy and independence of the individual with a disability.

28 C.F.R. § 35.160 (emphases added);9 see Nat’l Fed’n of the Blind v. Lamone, 813 F.3d 494,

505 (4th Cir. 2016) (deeming 28 C.F.R. § 35.160 relevant to Title II challenge to an absentee

voting program); Crowder v. Kitagawa, 81 F.3d 1480, 1483 (9th Cir. 1996) (Title II violation

occurs when government action “burdens visually-impaired persons in a manner different and

greater than it burdens others”); see also Moody ex rel. J.M. v. NYC Dep’t of Educ., 513 F.

App’x 95, 96 (2d Cir. 2013) (“optimal accommodations” not required) (internal quotation marks

and citation omitted).

“Primary consideration” means Defendants “must honor [Plaintiffs’] choice, unless

[Defendants] can demonstrate that another equally effective means of communication is

available or that the aid or service requested would fundamentally alter the nature of the

program, service, or activity or would result in undue financial and administrative burdens.”

United States Dep’t of Justice, ADA Update: A Primer for State and Local Governments 8

(2015), https://www.ada.gov/regs2010/titleII_2010/titleII_primer.pdf (hereinafter, “DOJ

Primer”).

“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.” United Spinal Ass’n v. Board of Elections in City of New York,

9 Within the ADA, “there is an express delegation of authority” to the United States Attorney

General to promulgate regulations necessary to its implementation, 42 U.S.C. § 12134(a), and

therefore those regulations are entitled to “controlling weight, unless they are arbitrary,

capricious, or manifestly contrary to the statute.” Chevron, U.S.A., Inc. v. Nat. Res. Def.

Council, Inc., 467 U.S. 837, 843–44 (1984).

882 F. Supp. 2d 615, 623 (S.D.N.Y. 2012). Put differently, plaintiffs “need not . . . prove that

they have been disenfranchised or otherwise ‘completely prevented from enjoying a service,

program, or activity’ to establish discrimination under Section 504 or Title II.” Disabled in

Action v. Bd. of Elections in City of New York, 752 F.3d 189, 198 (2d Cir. 2014) (quoting Shotz

v. Cates, 256 F.3d 1077, 1080 (11th Cir. 2001)). The “relevant inquiry” is “whether those with

disabilities are as a practical matter able to access benefits to which they are legally entitled,” id.

(citing Henrietta D., 331 F.3d at 273), and the “relevant benefit is the opportunity to fully

participate in BOE’s voting program,” id. “This includes the option to cast a private ballot on

election days.” Id. (citing N.Y. Elec. Law § 5–601) (emphasis added).10

The Fourth Circuit has held, and this Court agrees, that where, as here, a challenge is

lodged to the accessibility of a widely-available absentee voting program, the “relevant public

service or program at issue” is not the “voting program in its entirety” but rather the “absentee

voting program.” Lamone, 813 F.3d at 503 (explaining why an analytic scope encompassing the

entire voting program would be “overbroad and would undermine the purpose of the ADA and

its implementing regulations”); see Hindel v. Husted, 875 F.3d 344 (6th Cir. 2017) (holding

same); Drenth v. Boockvar, 2020 WL 2745729, at *5 (M.D. Pa. May 27, 2020) (same);

Democracy N.C. v. N.C. State Bd. of Elections, 2020 WL 4484063, at *56 (M.D.N.C. Aug. 4,

10 Disabled in Action held that, “[b]y designating inaccessible poll sites and failing to assure their

accessibility through temporary equipment, procedures, and policies on election days, BOE

denies plaintiffs meaningful access to its voting program.” 752 F.3d at 199. The State had

argued that it “offer[ed] individuals with disabilities reasonable accommodation by transferring

individuals from inaccessible to accessible polling sites,” but the Second Circuit characterized

that argument as stemming from a “misunderstand[ing]” of “BOE’s affirmative obligations

under the statutes and the nature of the accommodations that plaintiffs [sought].” Id. The

Second Circuit highlighted the lack of factual support for the BOE’s accommodation, noting

that, “while the policy of reassigning voters to accessible polling sites could theoretically

constitute a reasonable accommodation, there is nothing in the record to support that it provides

meaningful access to individuals with disabilities.” Id. at 201 n.13.

2020) (same). The text of Title II compels close examination not just of broad public

“programs” but of “services, programs, or activities.” 42 U.S.C. § 12132 (emphasis added). It

not only prohibits “exclusion from participation” but “den[ying] the benefits” of those services,

programs, or activities. Id.

Significant to the analysis is that New York has chosen to make absentee voting broadly

available to the electorate. The New York State legislature has adopted, and the Governor is

expected to sign, several bills that will make absentee balloting widely available in the State of

New York. Among those bills are:

• S. Res. 8015—D, 2020 Leg., 2019–2020 Sess. (N.Y. 2020), which will permit a voter to

obtain an absentee ballot if the voter is unable to appear personally at a polling place because

there is a risk of contracting or spreading a disease-causing illness to the voter or to other

members of the public;

• S. Res. 8783—A, 2020 Leg., 2019–2020 Sess. (N.Y. 2020), which would allow absentee

ballot applications to be sent to a county board of elections by letter, fax or use of a board of

elections portal earlier than 30 days before an election;

• S, Res. 8730—B, 2020 Leg., 2019–2020 Sess. (N.Y. 2020), which establishes procedures for

a voter to cure deficiencies when a local board of elections receives an invalid absentee ballot

affirmation envelope; and

• S. Res. 8799—A, 2020 Leg., 2019–2020 Sess. (N.Y. 2020), which permits absentee ballots

that do not have postmarks but are received by the board of elections by the day after the date

of the election to be canvassed, thereby addressing the instances where, due to mechanical

error or error at the post office, an absentee ballot does not receive a postmark.

For purposes of this motion, over no objection by the parties, the Court treats these bills

as though they will be signed by the Governor and become law in advance of the November

election. (Trans. of 8.13.2020 Hearing at 29–30.) In these circumstances, it would be intolerable

and legally incorrect to conclude that the relevant service, program, or activity is voting

generally and not absentee voting particularly. Such a definition would, in effect, permit the

State to require persons with disabilities, and only persons with disabilities, to hazard the risks of

COVID-19 to cast a private ballot. See Alexander v. Choate, 469 U.S. 287, 301 (1985) (“The

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.”).

A public entity is not required to make modifications that “fundamentally alter the nature

of the service, program, or activity,” 28 C.F.R. § 35.130(b)(7)(i) or “impose an undue hardship

on the operation of [the] program,” id. § 41.53. “Determination of the reasonableness of a

proposed modification is generally fact-specific.” Lamone, 813 F.3d at 508.

DISCUSSION

Clear or Substantial Likelihood of Success on the Merits

The parties do not dispute that Plaintiffs are individuals with qualified disabilities or that

Defendants are subject to the ADA. Defendants have also assumed they have an obligation to

make an accommodation to permit those with disabilities to cast a private ballot, as those without

disabilities are able to cast a private ballot. At issue is whether Plaintiffs have established a clear

or substantial likelihood of success on the merits of their claim that NYS BOE must adopt an

RAVBM system to satisfy its obligation to “operate each service, program, or activity so that the

service, program, or activity, when viewed in its entirety, is readily accessible to and usable by

individuals with disabilities,” 28 C.F.R. § 35.150, and to “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,” 28

C.F.R. § 35.160 (emphasis added). Specifically, the question is whether—giving “primary

consideration” to the instant requests of those with disabilities—Plaintiffs have established that

their proposed means of communication would be effective in providing individuals with

disabilities an equal opportunity to participate in New York’s absentee ballot program (which

means the ability to cast a ballot privately and independently) or whether, contrariwise, there is

reason to believe that Defendants will be able to demonstrate that “another equally effective

means of communication is available.” DOJ Primer. In the alternative, Defendants can attempt

to prove a likelihood “that the aid or service requested would fundamentally alter the nature of

the program, service, or activity or would result in undue financial and administrative burdens.”

Id.11

After careful consideration, the Court concludes that Plaintiffs have not met their burden

of showing a clear or substantial likelihood of success on the merits. To be sure, Plaintiffs have

offered extensive evidence—which the Court finds credible—that an RAVBM system generally

and in most instances can operate effectively to ensure that a person with disabilities receives an

accessible ballot that he or she can cast privately. Karl Groves, an expert for Plaintiffs,

submitted an opinion that “commercial RAVBM systems used elsewhere in the United States

have been tested for compatibility with both state voting systems and with all available screen

reader technology in combination with multiple permutations of operating systems and web

browsers.” (Dkt. No. 75 ¶ 19.) “Furthermore,” he explained, “the vendors who provide these

systems are able to provide immediate assistance rectifying any issues that arise, as they are

experienced in Information Technology Accessibility issues.” (Id.) Blake testified that RAVBM

systems, which “import . . . raw ballot data from the jurisdiction—not a PDF ballot—and display

11 At oral argument, Plaintiffs stated the applicable standard as follows: “[U]nless the defendants

can demonstrate that another system is as equally effective as the RAVBM system, then they are

legally required to consider and implement the RAVBM system here because that’s what the

plaintiffs’ primary choice is.” (Trans. of 8.13.2020 Hearing at 26.) Defendants disagree with

that articulation. (Dkt. No. 95 at 4.) They assert that “Plaintiffs’ choice of a remedy is [not]

mandated, merely because plaintiffs have chosen it.” (Id.) It is correct that public entities are

not mandated to select the remedy chosen by a person with a disability, simply because that

person chose that remedy, in all circumstances and without any say in the matter. By choosing a

remedy, a person with a disability triggers two options for a public entity: either it can “honor”

that choice or it can identify “another equally effective means of communication.” DOJ Primer.

That is the only interpretation that accords with the plain text of the DOJ Primer. See DOJ

Primer (“[Public entities] must honor [the individual’s] choice, unless [the entity] can

demonstrate that another equally effective means of communication is available . . . .”).

it to the voter in HTML format” are “inherently more accessible.” (Dkt. No. 76 ¶ 6.) Her

declaration lists several jurisdictions that have used commercial RAVBM systems. Another of

Plaintiffs’ experts, Juan Gilbert, who has published more than 250 articles and who has received

more than $28 million in research funding, testified to his knowledge that RAVBM tools “are

effective.” (Dkt. No. 74 ¶ 16.)

The question in this case, however, does not end with whether the RAVBM technology

generally, and in those other locations, would be effective in permitting a person with disabilities

to cast an absentee ballot independently and privately. The NYS BOE would not be required to

direct each of the 58 counties to adopt such a system if there was, for that county, an “equally

effective” means of communication to permit such casting of a ballot. Although the question is

close, the Court concludes that Plaintiffs have not made a showing of clear or substantial

likelihood that they will prevail on that issue.

In that respect, two points are relevant. First, as demonstrated by the evidence submitted

by Plaintiffs themselves, the RAVBM system is not fail-safe. New York City used Democracy

Live—an RAVBM system—for the June election. (Trans. of 8.13.2020 Hearing at 12–13.) And

three out of the eight voter declarations from Plaintiffs, which were submitted in support of an

application to require implementation of an RAVBM system, come from New York City voters.

Their testimony reveals that an RAVBM system, just like Defendants’ Proposed Measures, has

shortcomings. Hernandez, an individual with limited dexterity, would need to be able to submit

his ballot electronically in order to vote privately and independently. (Dkt. No. 64.) But

Plaintiffs are not seeking an injunction requiring individuals with disabilities to be able to submit

their ballots electronically. (Trans. of 8.13.2020 Hearing at 26 (“[W]hat we are talking about for

November only is electronic requests and delivery with a mail-in return.”)). Therefore, the

proposed RAVBM system would not address his needs. Gourgey, another New York City voter,

had trouble saving her ballot because it was not a PDF file. (Dkt. No. 62.) Her testimony

suggests that, had the ballot been an accessible PDF, she could have saved it and attached it to an

email or transferred it to a USB drive, and printed it from her husband’s computer independently.

(Id.) The RAVBM system did not address her needs. The third New York City voter is Bunting,

who for reasons apparently unknown, did not receive a ballot. (Dkt. No. 66.) The RAVBM

system did not serve her needs either.

Second, from the limited evidence presented in connection with the preliminary

injunction hearing, the Court cannot say that Defendants would be unsuccessful in their defense

that the Proposed Measures would be equally effective as an RAVBM. Put another way, there is

good reason to believe that Defendants will be able to show that their measures are equally

effective. With the exception of New York City, the county BOEs used an accessible PDF

absentee ballot marking system in connection with the June elections. And, although Plaintiffs

rightly complain about the instances where that system failed or had weaknesses, the record

before the Court supports the conclusion that the ballot marking system worked in a large

number of instances. There were 131 accessible absentee ballots issued in connection with the

June election—67 to voters in New York City and 64 to voters outside New York City. (Dkt.

No. 78, Ex. C.)12 New York City, as mentioned, has contracted with a RAVBM vendor. The

proposed injunction would not redress any issues identified in New York City.

For the counties outside of New York City, the evidence does not establish the existence

12 Absentee ballots were not issued where the applicant was found to be ineligible either because

there was no primary for the voter’s party or the voter was not registered to vote. In addition, in

New York City, 42 applications for absentee ballots were not filled because the applications

were “incomplete,” seemingly reflecting premature submissions or technical glitches. (Dkt. No.

78, Ex. C.) There were no incomplete applications outside of New York City. (Id.)

of systemic issues with the accessible PDF absentee ballot marking system. That evidence does

show that the ballots in Albany County and, perhaps in Suffolk County, were configured in a

manner that made them difficult to read. (Dkt. Nos. 59, 60, 65.) In Albany County, the

delegates were not linked with their presidential candidates, the heading for the District Attorney

race was not in the right place, and the reading order of the candidates on the local primary ballot

was wrong. (Dkt. No. 69 ¶¶ 12–13.) Once a voter made a selection on the ballot, she could not

use the arrow key to move through the ballot anymore. (Dkt. No. 60 ¶ 13.) The ballot would

read out choices the voter had already heard or give the voter a choice of only a few delegates

when the voter knew there were more. (Id.) The printing instructions were also confusing.

(Dkt. No. 69 ¶ 14.) In Suffolk County, a voter found that the software could not tell the voter

which candidate was associated with each check box. (Dkt. No. 65 ¶ 15.) But, those are only

two of the many counties outside of New York City. There is no evidence of such problems

elsewhere and no evidence to suggest that the problems encountered by Albany and Suffolk

Counties were inherent to the approach taken by NYS BOE. Instead, they appear to be the

idiosyncratic result of an approach that was rushed and ad hoc in connection with the June

primary but that presumably (and based on Defendants’ representation) will be more deliberate

and more carefully planned in advance of the November election.13 In fact, Young in Monroe

County and Gurgui in Ulster County were each able to complete the accessible absentee ballot

themselves without incident. (Dkt. No. 58; Dkt. No. 63). No evidence was submitted with

13 Plaintiffs’ expert, Groves, studied the Albany ballots and determined that “whoever performed

the work of attempting to make the PDFs in Exhibits C and D (the ballots) accessible did not

understand accessibility or the process of converting a standard PDF to an accessible PDF.”

(Dkt. No. 75 ¶ 15.) Groves does not suggest that the PDF platform itself is incompatible with

accessible absentee voting. Rather, he testified that “[a] person creating such documents must

have both a depth and breadth of understanding of the PDF format, tagging, object identification,

and how PDF documents are rendered by assistive technologies.” (Id. ¶ 17.)

respect to other counties.

Moreover, the Court credits Connolly’s testimony that the problems with the ballot in

Albany County, which were a function of the rushed timetable between the June Stipulation and

the June election, can and will be avoided with longer lead time, greater scrutiny in vendor

selection, and increased accessibility consulting. (Trans. of 8.13.2020 Hearing at 70–71.)

Specifically, Connolly explained that, “with more lead time,” NYS BOE will “require each ballot

style with a different ballot configuration to be made accessible at its creation, as opposed to as

an ad hoc process.” (Dkt. No. 78 ¶ 24.) He promised “greater consistency and quality control”

by “limit[ing] the use of authorized vendors allowed to make the ballots accessible” and he

promised that the BOE “will provide more detailed instructions to the vendors that make the

ballots accessible about the associations that need to be made in the accessible PDF.” (Id. ¶ 25.)

Defendants thus represented to the Court, on the record and under oath at oral argument,

that they will implement every measure in the June Stipulation plus the above-described

improvements. The Court accepts that representation.

To be sure, several of Plaintiffs’ voter-declarants encountered problems obtaining and

processing a ballot application, as opposed to an actual ballot. That testimony is of concern. But

the RAVBM solution Plaintiffs ask the Court to order would not address it. RAVBM is

fundamentally a ballot marking technology, not a technology that would change how ballot

applications are processed. Although there was testimony that NYS BOE or county BOEs could

purchase an add-on service of application processing (Trans. of 8.13.2020 Hearing at 8),

Plaintiffs’ application is plainly focused on ballot accessibility. (See Dkt. No. 56 at 2 (“Because

Defendants did not put into place a purpose-built RAVBM system to provide ballots that were

designed to be accessible, the CBOEs took wildly different approaches, leading to a variety of

errors.”) (emphasis added); id. (“A RAVBM system can produce accessible ballots for every

potential voter in advance, rather than try to remediate existing documents after a request is

made.”) (emphasis added); id. (“It can ensure that the ballots are compatible with all of the

common assistive software and operating systems used by people with print disabilities.”)

(emphasis added); id. at 2–3 (“It can deliver the ballots electronically to voters with print

disabilities and allow them to electronically mark their ballots.”) (emphasis added).)

Additionally, several declarants identified, essentially, customer service error—BOE

representatives who were not helpful or even knowledgeable about accessible absentee voting.

The Court is not persuaded that such errors would be better or worse between an RAVBM

system and the Proposed Measures. Defendants largely attribute this problem to inadequate

training, which they have pledged to remediate. Plaintiffs argued that this issue could be

improved with a link on a county BOE website, directing voters seeking accessible absentee

ballots to contact a representative from the RAVBM vendor. But there is no evidence that the

(presumably, non-local) RAVBM vendor would have the capacity to provide more immediate

and better-trained assistance than a properly trained county BOE office does.

On the whole, after a full trial, Plaintiffs would not be likely to prevail against a defense

that the Proposed Measures are equally effective to an RAVBM system. Plaintiffs have not met

their burden of showing a clear or substantial likelihood of success on the merits.

Irreparable Harm

Defendants do not dispute that the deprivation of the right of a single individual to cast a

ballot independently and privately would work irreparable harm. The right to vote is, of course,

of constitutional magnitude. U.S. Const. Amend. XV; Reynolds v. Sims, 377 U.S. 533, 562

(1964). It is the right that is “preservative of all rights.” Reynolds, 377 U.S. at 562. Although

the Supreme Court has yet to recognize a constitutional right to vote in private, see Thompson v.

Dorchester Cty. Sheriff’s Dep’t, 2007 WL 5681972, at *8 (D.S.C. May 4, 2007), aff'd, 280 F.

App’x 328 (4th Cir. 2008), the Court has called it “necessary to cure electoral abuses,” Burson v.

Freeman, 504 U.S. 191, 207 (1992), and, “[s]ince 1895, [the New York] Constitution has

specifically provided that, whether voting is by ballot or another method prescribed by law,

‘secrecy in voting be preserved.’” Kosmider v. Whitney, 132 N.E.3d 592, 602 (quoting N.Y.

Const. Art. II, § 7). Once a voter has been forced to reveal her choice for office, that revelation

cannot be taken back; the loss is not something that can be repaired by money damages. Cf.

Green Party of N.Y. State v. N.Y. State Bd. of Elections, 267 F. Supp. 2d 342, 351 (E.D.N.Y.

2003), modified, 2003 WL 22170603 (E.D.N.Y. Sept. 18, 2003), and aff’d, 389 F.3d 411 (2d Cir.

2004) (finding that plaintiffs had “satisfied the [irreparable harm] prong of the test by alleging”

that aspects of a voter enrollment program violated “their First and Fourteenth Amendment

rights to express their political beliefs, to associate with one another as a political party, and to

equal protection of the law”).

However, to support a preliminary injunction, the harm must not only be irreparable but

loss of the right must also be “actual and imminent,” and not speculative or remote. Faiveley

Transport Malmo AB v. Wabtec Corp., 559 F.3d 110, 118 (2d Cir. 2009); see also id. (calling the

“showing of irreparable harm” the “single most important prerequisite for the issuance of a

preliminary injunction”). Given the mandatory nature of the injunction sought, the Court must

specifically consider whether Plaintiffs have made “a strong showing of irreparable harm.”

Yang, 960 F.3d at 127–28 (internal quotation marks and citation omitted).

Plaintiffs argue that they have demonstrated a likelihood of actual and imminent harm

because “Defendants lack a concrete plan for improving on their performance” and “have not

taken the first step of instructing the county boards of elections to remediate their PDF ballots for

the November 3 election, much less provided guidance on an appropriate process, quality

control, or funding for the remediation.” (Dkt. No. 98 at 1.) They assert that, absent their

requested injunction, their right to vote independently and privately will be compromised.

The Court cannot agree that Plaintiffs have made a strong showing of a risk of irreparable

harm that is actual and imminent. Defendants have represented that they will implement the

Proposed Measures, including directing each of the county BOEs or their agents, regardless

whether they have previously received a request, to generate a ballot that is screen readable using

common assistive technology, such as Job Access with Speech “JAWS” software, Apple

VoiceOver, and Android TalkBack, which shall include insertion of tags and fillable objects so

that it can be completed independently and privately by the requesting individual using standard,

accessible technology, namely a screen reader program.14

By order of this Court they will be required to do so. Thus, for the reasons above,

describing why the Court construes the Proposed Measures to satisfy Defendants’ obligations

under the ADA, the Court finds that they would not actually and imminently not deprive

Plaintiffs of the opportunity to vote privately and independently. To be sure, elections are not

risk-free endeavors. Even unrelated to accessibility measures, the logistics of an absentee voting

program threaten imperfect execution. But on the present record, Plaintiffs have failed to make a

strong showing that such threats are more than “remote” or “speculative.” Faiveley, 559 F.3d at

118.15

14 The accessible absentee ballot shall meet WCAG 2.0 AA standards for a PDF.

15 The Court’s finding rests on the record before it presently, which has many gaps and

ambiguities. It leaves open the possibility that, upon a fuller record, Plaintiffs could show that

the Proposed Measures deprive voters with disabilities the access to which they are

constitutionally entitled. The same possibility applies to the likelihood-of-success and public

Public Interest and Balance of Equities

Plaintiffs also have failed to show that the “public interest weigh[s] in favor of granting

the [requested] injunction.” Thomas v. New York City Bd. Of Elections, 898 F. Supp. 2d 594,

597 (S.D.N.Y. 2012).

Even if, in the abstract and in isolation, an “RAVBM tool offers Plaintiffs and their

members the best opportunity to cast a private and independent vote” (Dkt. No. 98 at 4), and

would redress the problems confronted by Albany County (and perhaps Suffolk County) in the

June election, and even if an RAVBM system has been implemented in New York City, the

Court cannot ignore that there are 55 other counties in New York State.

Unlike other states in which the voting system is centralized, New York has a “bottom-

up” system, meaning that “the individual county boards are the registrars of voters, produce and

mail ballots, and are individually responsible for canvassing and counting their own ballot

returns and votes.” (Dkt. No. 77 ¶ 3.) Each county has a different subsystem for accomplishing

those tasks. (Id.) And in any given election, each county has many different ballot styles.

(Trans. of 8.13.2020 Hearing at 58; see also id.) An RAVBM system, according to Connolly,

would require each county, as an in-house effort, to import data into the RAVBM system and

then do necessary quality control on “hundreds, if not thousands, of unique ballot styles” to

ensure that the system “will provide the correct information to the voter.” (Trans. of 8.13.2020

Hearing at 76.) Moreover, in many instances, each county BOE would have to do so without IT

staff or employees who have been trained to work with such a vendor. They would need to seek

additional assistance. (Id. at 37.) It took New York City—with a budget of $123,000,000 and a

staff of 517 employees—fourteen days to work with a vendor to transmit to it the necessary

interest/balance-of-equities prongs.

information for it to be able to generate an RAVBM ballot. (Dkt. No. 78 ¶ 40; Trans. of

8.13.2020 at 32.) It would take countless additional days for the remaining New York

counties—which collectively have a budget of $116,000,000 and a total of 691 employees—to

work with a vendor to implement a system and make sure it was checked for quality control.

(Id.) The Court asked Connolly why that process would take more time than the steps necessary

to implement the Proposed Measures. Connolly’s answer was clear: the “actual work” of the

Proposed Measures would done by outside vendors, rather than by the county BOEs in-house.

(Id. at 69.) Once the county BOEs generate the ballot PDFs as they would in ordinary course,

they send them to an outside vendor for remediation. (Id.) By contrast, the technical

information migration required by an RAVBM system would have to be done in-house and

would require the expertise to do so. (Id.)

Moreover, NYS BOE, for its part, would need to “examine, review and make

modifications to an already burdened system to accept this new type of request, as well as create

a new repository for the new ballot type.” (Dkt. No. 77 ¶ 6.) The various types of testing

required of these changes (functional testing, communications testing, load testing, security

testing, as well as accessibility testing) would pose significant logistical challenges in light of the

applicable time constraints. (Id. ¶¶ 8–9.)

In sum, introducing an RAVBM “would be a time-consuming and pain-staking process.”

(Id. ¶ 3.) Moreover, it would be a time-consuming and pain-staking process that would divert

resources from other programs and activities that NYS BOE and county BOEs are undertaking at

a crucial time when the county BOEs are trying to manage an election in the middle of a

paralyzing global pandemic and are resource-strapped.

None of that might matter much if the Court were convinced that the RAVBM system

was necessary to assure those with disabilities the right to a private vote on a statewide basis or

even in large portions of the state. But the Court is not so convinced. Here, it has evidence

from two counties—out of 58 in the State of New York—of problems from June that could

promisingly be remediated by an RAVBM system. The Court does not diminish the significance

of those problems for the voters involved; they have as great a right to a private vote as any

citizen of New York. In particular, it agrees with Plaintiffs who, in answer to the Court’s

question at oral argument whether, “if a ballot works for 1,000 people, [but] doesn’t work for the

1,001st person, then [have] you established irreparable harm,” (Trans. of 8.13.2020 Hearing at

18), answered yes and that irreparable harm is not “a numbers game.” (Id. at 22.) By the same

token, however, the Court needs to consider the risk that counties where accessible PDF ballots

worked in June (that is, counties where individuals with disabilities were able to cast private and

independent ballots) would fail to achieve the same result if they tried to implement an entirely

new system now; from the evidence before the Court, that is a significant possibility. The Court

must also consider the hardship on each of the 58 counties, and thereby on the State, as they

labor to ensure that all citizens have the ability to cast a private vote, of implementing a new

system statewide in order to redress problems identified only in a few counties. Weighing those

factors, on the present record, the risks and resource diversion threatened by an RAVBM system

outweigh its benefit compared to the Proposed Measures.

CONCLUSION

For the reasons above, Plaintiffs’ motion for preliminary injunction requiring the State to

implement an RAVBM system statewide is DENIED. In accordance with this Opinion & Order,

and to ensure that Plaintiffs are able to cast private and independent votes, and to vindicate their

rights under the ADA and the Rehabilitation Act, however, the Court orders Defendants to

submit a proposed injunction consistent with Defendants’ written and oral representations

regarding implementation of an accessible absentee voting system for the November 3, 2020

election. Defendants shall meet and confer with Plaintiffs regarding the terms of that injunction.

The parties shall submit a proposed injunction order to the Court no later than 5:00 p.m. on

August 17, 2020.

The Clerk of Court is respectfully directed to close Dkt. No. 55.

weit Hohn a,

Dated: August 14, 2020 tee

New York, New York LEWIS J. LIMAN

United States District Judge

28