Rissling v. Bobo

□□□ □□□

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

WESTERN DIVISION

DAVID RISSLING, et al., )

Plaintiffs,

v. ) 7:23-cv-01326-LSC

MAGARIA BOBO, et al.,

Defendants. )

)

MEMORANDUM OF OPINION

I. INTRODUCTION

Plaintiffs David Rissling, Eric Peebles, Gail Clayton, Gilley Pressley, and the

National Federation of the Blind of Alabama (“‘Plaintiffs”) bring this action based

on Alabama’s allegedly discriminatory failure to provide certain absentee voting

accommodations for disabled individuals. (Doc. 4.) Before the Court is Defendants

Magaria Bobo, Susan Potts, and Jacquelin Anderson-Smith’s (“Defendants”’)

motion to dismiss. (Doc. 18.) The motion is fully briefed and ripe for review. Upon

due consideration and for the reasons stated herein, the motion to dismiss is due to

be GRANTED IN PART and DENIED IN PART.

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II. BACKGROUND!

Plaintiffs are registered Alabama voters. (Doc. 4 J 102, 103.) They have

disabilities ranging from cerebral palsy and quadriplegia (zd. J 12) to blindness. (Jd.

q 17.) These disabilities cause struggles with reading and handling printed text. (/d.

q 12.) To accommodate these struggles, Plaintiffs use screen-reader software on

their personal devices to interact with digital materials. (Jd. [J 12, 17, 22, 26.)

In previous election cycles, three of them voted in person through polling

place assistive technology and help from poll workers; some of them vote exclusively

through these means. (/d. [J 18, 19, 23, 27.) During the 2022 general election, the

remaining Plaintiff did not vote in person because he failed to verify his polling place

in time to vote. (/d. J 15.) Plaintiffs claim that the currently available polling place

technology is often not functioning and is not sufficient to handle the long lines of

voters who need it, resulting in long wait times. (/d. J 19.) Three of the individual

Plaintiffs previously voted absentee—two had help filling out their ballots at home

(zd. JJ 14, 28), and one visited the Tuscaloosa Circuit Clerk’s office where he cast

1 In evaluating a motion to dismiss, this Court “accept[s] the allegations in the complaint as

true and constru[es] them in the light most favorable to the plaintiff.” Lanfear v. Home Depot, Inc.,

679 F.3d 1267, 1275 (11th Cir. 2012) (quoting /ronworkers Loc. Union 68 v. AstraZeneca Pharm., LP,

634 F.3d 1352, 1359 (11th Cir. 2011)). The following facts are, therefore, taken from the allegations

contained in Plaintiffs’ complaint, and the Court makes no ruling on their veracity.

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his absentee ballot in person. (/d. J 24.) All Plaintiffs intend to continue voting in

future elections. (/d. J 16, 25, 29.)

Along with the individual Plaintiffs, the National Federation of the Blind of

Alabama (““NFB-AL”) joins this suit on behalf of itself and its members. (/d J 30.)

NFB-AL is affiliated with the National Federation of the Blind, both of which seek

to “promote[]| the general welfare of the blind” and “remove[] barriers that result

in the denial of opportunity to blind persons in virtually every sphere of life.” (/d.)

Clayton, Rissling, and Pressley are members of NFB-AL. (Jd. 7 31.)

Alabama conducts elections pursuant to Title 17 of the Code of Alabama.

Under that code, to be a qualified voter, an individual must meet the eligibility

criteria set out in Article 8 of the Alabama Constitution. Ala. Code § 17-3-30. To

meet the eligibility criteria and register to vote, an individual must: (1) be a citizen of

the United States, (2) be at least 18 years old, and (3) have resided in Alabama “for

the time provided by law.” ALA. CONST. art. 8, § 177. Further, no individual who has

been convicted of a felony involving moral turpitude or who is mentally incompetent

is eligible to vote. /d. But for all individuals who meet the eligibility criteria, the

election code guarantees that “[e]very voter in Alabama shall have the right to vote

a secret ballot, and that ballot shall be kept secret and inviolate.” Ala. Code § 17-6-

34. This guarantee covers those qualified voters who have permanent disabilities

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preventing their attendance at the polls and are thus allowed to vote by absentee

ballot. Jd. § 17-11-3.1.

To obtain an absentee ballot, voters must request one through the secretary of

state’s website. (Doc. 4 J 45.) Ifapproved, Alabama voters living in the United States

receive three envelopes along with the ballot: a secrecy envelope, an affidavit

envelope, and a pre-addressed outer envelope. (/d. J 46.) To complete the process,

voters must use the envelopes much like a nesting doll: the ballot goes in the secrecy

envelope, which goes in the affidavit envelope, which goes in the outer envelope.

(Id.)

Alabama offers an electronic alternative to paper absentee ballots for two

classes of absentee voters: (1) its active military members who are outside the U.S.

and (2) its overseas voters. (/d. 7 55.) For these voters, Alabama provides a Remote

Accessible Vote-By-Mail system. (/d.) This system allows voters to receive and

return ballots through an online portal or via email. (Jd at 54.) According to

Plaintiffs, Alabama should adopt electronic absentee ballot alternatives like the one

used for overseas voters to “afford [disabled voters] equally effective

communication with equivalent privacy and independence.” (/d. J] 51, 85.)

Accordingly, Plaintiffs initially sued Alabama’s secretary of state, alleging the

same violations as those alleged here—that Alabama’s absentee voting scheme

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violates both the Americans with Disabilities Act (“ADA”) and the Rehabilitation

Act of 1973. See Nat?! Fed’n of Blind of Ala. v. Allen, 661 F. Supp. 3d 1114 (N.D. Ala.

2023). The court dismissed the suit for lack of standing, concluding that the

secretary of state could not implement Plaintiffs’ requested relief, and thus was and

is the improper individual to sue for these claims. /d. at 1123.

Plaintiffs then sued Defendants in their official capacities as Absentee Election

Managers for various Alabama counties, claiming violations of both the ADA and the

Rehabilitation Act. Plaintiffs allege that absent injunctive relief, they “will be denied

their right to vote privately and independently by absentee ballot.” (/d. J 89.)

Il. STANDARD OF REVIEW

In general, a pleading must include “a short and plain statement of the claim

showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). However, to

withstand a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), a complaint

“must plead enough facts to state a claim to relief that is plausible on its face.” Ray

vy. Spirit Airlines, Inc., 836 F.3d 1340, 1347-48 (11th Cir. 2016) (quoting Bell Atl. Corp.

Twombly, 550 U.S. 544, 570 (2007)) (internal quotation marks omitted). “A claim

has facial plausibility when the plaintiff pleads factual content that allows the court

to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Stated another way, the factual

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allegations in the complaint must be sufficient to “raise a right to relief above the

speculative level.” Edwards v. Prime, Inc., 602 F.3d 1276, 1291 (11th Cir. 2010). A

complaint that “succeeds in identifying facts that are suggestive enough to render

[the necessary elements of a claim] plausible” will survive a motion to dismiss. Watts

vy. Fla. Int’l Uniy., 495 F.3d 1289, 1296 (11th Cir. 2007) (quoting Twombly, 550 U.S.

at 556) (internal quotation marks omitted).

In evaluating the sufficiency of a complaint, this Court first “identiflies|

pleadings that, because they are no more than conclusions, are not entitled to the

assumption of truth.” Jgbal, 556 U.S. at 679. This Court then “assume[s] the[]

veracity” of the complaint’s “well-pleaded factual allegations” and “determine[s|

whether they plausibly give rise to an entitlement to relief.” Jd Review of the

complaint is “‘a context-specific task that requires [this Court] to draw on its judicial

experience and common sense.” Jd. If the pleading “contain[s] enough information

regarding the material elements of a cause of action to support recovery under some

‘viable legal theory,’” it satisfies the notice pleading standard. Am. Fed’n of Labor &

Cong. of Indus. Orgs. v. City of Miami, 637 F.3d 1178, 1186 (11th Cir. 2011) (quoting

Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 683-84 (11th Cir. 2001)).

IV. DISCUSSION

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Plaintiffs contend that Defendants violate the ADA and Rehabilitation Act by

failing to offer electronic absentee ballots as a means for them to vote absentee

privately and independently. (Doc. 4 9991, 105, 109.) Defendants argue that

Plaintiffs’ Rehabilitation Act claim must be dismissed because Plaintiffs have not

alleged facts showing that they were discriminated against solely on the basis of their

disabilities, which is an essential element of their Rehabilitation Act claim. This

Court agrees.

Defendants do not, however, seriously dispute that Plaintiffs have stated a

prima facie ADA claim.’ Instead, they attack Plaintiffs’ claim by asserting what are

or amount to several affirmative defenses, including: (1) the ADA does not apply to

elections; (2) requiring electronic ballots would impermissibly work a “fundamental

alteration” of Alabama’s voting scheme; and (3) private and independent absentee

voting is not a protected program or benefit under the ADA. These defenses are, at

this stage, underdeveloped.

2 A prima facie ADA claim requires a plaintiff to allege that (1) he is a “qualified individual

with a disability”; and (2) he was “excluded from participation in or denied the benefits of a public

entity’s services, programs, or activities, or was otherwise discriminated against by the public

entity” (3) “by reason of” his disability. Bzrcoll v. Miami-Dade Cnty., 480 F.3d 1072, 1083 (11th

Cir. 2007) (citing Shotz v. Cates, 256 F.3d 1077, 1079 (11th Cir. 2001)); 42 U.S.C. § 12132. Plaintiffs

allege facts plausibly showing that, due to their qualifying disabilities, they have been denied the

benefit of voting absentee privately and independently, and that they are otherwise qualified to

vote absentee in Alabama. Accordingly, they have stated a prima facie claim under the ADA. Jd.

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A. Federal courts have considered ADA claims in the context of elections.

Defendants argue that Plaintiffs’ ADA claim fails because the ADA does not

preempt Alabama election law, which requires them to offer electronic absentee

ballots only to military and overseas voters. Though styled as a preemption defense,

Defendants essentially argue that compliance with Alabama law shields them from

ADA liability. This Court is unpersuaded. See Campbell v. Universal City Dev.

Partners, Ltd., 72 F.Ath 1245, 1258 (11th Cir. 2023) (“If compliance with state law

were [an accepted defense to an ADA claim, | then any state could unilaterally nullify

the ADA by enacting a state law requiring discrimination. That can’t be right.”’).

The Supremacy Clause of the Constitution provides that federal law “shall be

the supreme Law of the Land; ... any Thing in the Constitution or Laws of any State

to the Contrary notwithstanding.” U.S. Const. art. VI, cl. 2. From this Clause

derives the “fundamental principle” that “Congress has the power to preempt state

law” with federal law. Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372

(2000). Congress does this in three ways: (1) with an “express provision for

preemption”; (2) by “occupy|ing| the field” of law in which the state law operates;

and (3) impliedly, whereby “state law is naturally preempted to the extent of any

conflict with a federal statute.” Jd.

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Defendants argue that, because elections are traditionally regulated by the

States, this Court should apply the doctrine of presumption against preemption.

Under that doctrine, courts sometimes require “unmistakably clear” language in a

federal statute before presuming that Congress intended to preempt state law in an

area traditionally regulated by the States. Gregory v. Ashcroft, 501 U.S. 452, 460

(1991). Defendants rely primarily upon three Supreme Court opinions to assert that

the presumption against preemption applies in this case.* But all three belie

Defendants’ argument: they establish that the presumption against preemption

applies only when the federal law at issue is ambiguous. See zd. at 470 (“In the face

of such ambiguity, we will not attribute to Congress an intent to intrude on state

governmental functions....”); Arizona v. Inter Tribal Council of Arizona, Inc., 570

U.S. 1, 9 (2013) (resolving a preemption dispute over a federal law that was “fairly

susceptible of two interpretations”); Bond ». United States, 572 U.S. 844, 859 (2014)

(““These precedents make clear that it is appropriate to refer to basic principles of

federalism embodied in the Constitution to resolve ambiguity in a federal statute.”’).

Defendants make no attempt to identify or challenge an ambiguity here.

Absent such statutory ambiguity, “there is no presumption against preemption.”

3 Defendants also rely on the century-old case of United States v. Gradwell, 243 U.S. 476

(1917), which held that a federal law protecting tax revenue did not apply to elections. But Gradwell

‘was not even a pre-emption case” and “says nothing at all about pre-emption.” Arizona v. Inter

Tribal Council of Arizona, Inc., 570 U.S. 1, 15 n.5 (2013).

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Fla. State Conf. of N.A.A.C.P. ». Browning, 522 F.3d 1153, 1179 n.13 (11th Cir. 2008)

(Barket, J., concurring) (citing Irving v. Mazda Motor Corp., 136 F.3d 764, 769 (11th

Cir. 1998)); zd. at 1167-68 (rejecting the same presumption-against-preemption

argument that Defendants assert here).

Furthermore, several federal courts have either impliedly or expressly

recognized that, at least sometimes, the ADA applies in the context of elections and

preempts conflicting state elections law. See, e.g., Lightbourn v. Cnty. of El Paso, Tex.,

118 F.3d 421, 431 (5th Cir. 1997) (recognizing that the ADA “might cover some

aspect of elections” and that “the plaintiffs could state a claim under the ADA” if

the facts were different); Vat?! Fed’n of the Blind v. Lamone, 813 F.3d 494, 501 (4th

Cir. 2016) (addressing ADA claim that disabled voters could not “vote privately and

independently” under Maryland’s absentee voting scheme); Hindel ». Husted, 875

F.3d 344, 345 (6th Cir. 2017) (reversing dismissal of ADA claim where blind voters

alleged that Ohio’s absentee voting scheme required them to “seek the aid of a

sighted person in order to vote absentee, thus depriving them of the ability to vote

anonymously”); Johnson v. Callanen, 608 F. Supp. 3d 476, 487 (W.D. Tex. 2022)

(“If the Election Code conflicts with Title II of the ADA, then federal law would

preempt state law.”’); see also Campbell v. Universal City Dev. Partners, Ltd.,72 F.Ath

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1245, 1257 (11th Cir. 2023) (holding that the ADA preempts any state law providing

less protection than the ADA).

So has the Eleventh Circuit. Am. Ass’n of People with Disabilities v. Harris, 647

F.3d 1093, 1096 (11th Cir. 2011) (addressing claims that Florida’s voting machines

violated the ADA by stripping disabled voters of their right to cast a “direct and

secret ballot”). As Plaintiffs here point out, the Eleventh Circuit’s analysis in Harris

would make no sense if the ADA did not apply to elections. See zd. at 1107 (finding

the plaintiffs’ claim unmeritorious but confirming that the ADA “does not leave

disabled voters in the lurch” (citing 42 U.S.C. § 12101(a)(3))). This Court is bound

to follow the Eleventh Circuit’s guidance. In re Hubbard, 803 F.3d 1298, 1309 (11th

Cir. 2015) (“[C]ourts of this circuit are bound by the precedent of this circuit.”).

The Eleventh Circuit has applied the ADA to voting; so will this Court.

B. It is too soon to decide whether requiring electronic absentee voting

would fundamentally alter Alabama’s voting scheme.

Defendants next seek to escape ADA liability by raising two related

arguments. They argue that (1) using a paper ballot is an “essential eligibility

requirement” to voting in Alabama, and (2) requiring Defendants to provide

electronic voting would work a “fundamental alteration” in the nature of Alabama

elections. This Court concludes that these issues should be resolved with the benefit

of a developed record.

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As part of their prima facie ADA claim, Plaintiffs must plausibly allege that

they are “qualified individual[s],” which here means that they meet the “essential

eligibility requirements” for absentee voting, “with or without reasonable

modifications to rules, policies, or practices.” 42 U.S.C.A. §§ 12131, 12132. They

have done so. (Doc. 4 ¥ 79.)

Defendants attempt to refute Plaintiffs’ prima facie claim by arguing that,

because Alabama’s voting regulations make sense only as applied to paper ballots,

the use of a paper ballot is an “essential eligibility requirement” for having one’s

vote counted in Alabama.* The problem with this argument is that it falls short of

answering the dispositive inquiry: the question is not whether Alabama law

contemplates the use of paper ballots, nor even whether paper ballots are required;

the question is whether that requirement is “essential.” 42 U.S.C. § 12131(2); see 28

C.F.R. § 35.130(b)(8) (“A public entity shall not impose or apply eligibility criteria

that screen out or tend to screen out an individual with a disability ... unless such

criteria can be shown to be necessary for the provision of the service, program, or

activity being offered.” cf People First of Alabama v. Merrill, 479 F. Supp. 3d 1200,

1212 (N.D. Ala. 2020) (““These points prove only that providing photo ID is a

4 For example, Alabama Code § 17-6-24 governs the “[p]rinting and design” of the ballots;

§ 17-6-26 states that ballots “may be printed upon one or more separate pages or cards”; and § 17-

6-47 requires that probate judges have ballots “printed, at the expense of the county.”

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requirement; they do not show that the requirement is essential.”’).

‘Whether a particular aspect of an activity is ‘essential’ will turn on the facts

of each case.” Schaw v. Habitat for Human. of Citrus Cnty., Inc., 938 F.3d 1259, 1266

(11th Cir. 2019) (citing Schwarz v. City of Treasure Island, 544 F.3d 1201, 1221 (11th

Cir. 2008)); accord Lamone, 813 F.3d at 509 (“The underlying question is fact-

specific.” The question that must be answered is, ‘“‘What is the basic purpose of

the rule or policy at issue?” Schaw, 938 F.3d at 1266. The closest Defendants come

to suggesting an answer is in a footnote explaining that the electronic voting service

offered to overseas voters comes with “additional requirements ... to compensate

for the security risk of not returning a paper ballot.” (Doc. 18 at 15 n.9.) That is not

enough. Defendants’ mere citation to Alabama statutes governing elections

procedure is insufficient to establish that using a paper ballot is an “essential

eligibility requirement” to having one’s vote counted in Alabama. See People First of

Alabama v. Merrill, 467 F. Supp. 3d 1179, 1219 (N.D. Ala. 2020) (“[D]efendants’

bald assertion of the requirement’s essential nature is insufficient to block the

plaintiffs’ claim.’’)

For similar reasons, Defendants’ fundamental alteration argument is

unavailing at this juncture. See Lamone, 813 F.3d at 508 (finding inference from

statutory text, without more, insufficient to show that waiver or modification of a

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requirement will fundamentally alter a service). Because the ADA “requires only

‘reasonable modifications,’” it excludes liability where compliance with its terms

would “effect a fundamental alteration in the nature of the service” at issue.

Tennessee v. Lane, 541 U.S. 509, 523 (2004); 28 C.F.R. § 35.130(b)(7)(i) (“A public

entity shall make reasonable modifications in policies, practices, or procedures ...

unless ... the modifications would fundamentally alter the nature of the service,

program, or activity.”). “Fundamental alteration” is an affirmative defense that

must be pled and proven by the defendant. /d.; 28 C.F.R. § 35.164; Hindel, 875 F.3d

at 347. “Affirmative defenses to ADA claims such as this are typically fact-based and

not capable of resolution on the basis of the pleadings alone.” Jd. (citations omitted).

In Hindel, the Sixth Circuit reversed a district court’s grant of judgment on

the pleadings in a case factually similar to this one. Jd. at 350. The plaintiffs alleged

Ohio’s absentee voter system violated the ADA by failing to accommodate visually

impaired voters. /d. at 345. And just like Defendants attempt here, the Hindel

defendant used Ohio statutory requirements to successfully persuade the trial court

that granting the plaintiffs’ requested relief would fundamentally alter Ohio’s voting

scheme. Jd. at 346. This was error. Jd. at 347. The Sixth Circuit explained that finding

a fundamental alteration would be appropriate only after evidentiary development

either through discovery, expert testimony, a hearing, or trial. Jd.

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Here, as in Hindel, this matter has not reached the stage where it would be

appropriate for this Court to determine whether Plaintiffs’ requested relief would

work a fundamental alteration in the nature of absentee voting in Alabama.

Defendants offer bare assertions that granting Plaintiffs’ relief would “bloat

Alabama’s electronic absentee balloting program beyond recognition” and “erode

the State’s interest in maintaining a paper balloting system.” (Doc. 18 at 16.) But

what is that interest? What is Alabama’s purpose behind maintaining a paper

balloting system? Whatever the answer, Defendants bear the burden of proof on this

point, and they cannot meet that burden here merely by drawing inferences from

statutory text. E.g., Lamone, 813 F.3d at 508.

C. Exclusion from private and independent absentee voting is a proper

analytic scope for Plaintiffs’ claims.

Finally, Defendants dispute the proper framing of the relevant public service,

program, or benefits from which Plaintiffs have allegedly been excluded. Plaintiffs

contend that the appropriate analytic scope is Alabama’s absentee voting system,

from which they allegedly have been denied the benefit of voting privately and

independently. (Doc. 26 at 20.) Defendants argue that this framing is “overly

narrow.” (Doc. 18 at 17.) Because United States Supreme Court and other precedent

counsels against defining the relevant program or benefit too broadly, this Court

concludes that Plaintiffs have plausibly stated a claim for the denial of a benefit of a

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public service, program, or activity. See 42 U.S.C. § 12132 (prohibiting not only

exclusion from participation in public programs, but also denial of benefits of the

programs.)

The United States Supreme Court has cautioned courts not to define the

scope of a public benefit “so as to avoid questions of discriminatory effects.”

Lamone, 813 F.3d at 504 (citing Alexander v. Choate, 469 U.S. 287, 301 (1985)). In

Alexander, the Supreme Court recognized 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.” 469 U.S. at 301 n.21. Noting this

logic, the Fourth Circuit in Lamone “determined that Maryland’s absentee voting

program [was] the appropriate subject of [its] ADA analysis.” 813 F.3d at 505. The

Second Circuit has further explained that defining the benefit of absentee voting as

“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.” Disabled in Action v. Bd. of

Elections in N.Y., 752 F.3d 189, 198-99 (2d Cir. 2014) (internal quotations and

brackets omitted) (citing Alexander, 469 U.S. at 301).

Plaintiffs contend that Alabama offers a benefit—the opportunity to vote

absentee privately and independently—to those without disabilities that it does not

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offer to those with disabilities. See 28 C.F.R. § 35.160(b) (requiring public entities to

provide an equal opportunity for persons with disabilities to enjoy the benefits of

public programs “in such a way as to protect the privacy and independence of the

individual with a disability”). Defendants do not appear to dispute that visual and

print disabilities make voting without assistance impossible under Alabama’s current

absentee voting scheme, or that many Alabama voters without such disabilities vote

absentee without third-party assistance. (See docs. 4 at 4-5; 18 at 3.) Therefore,

Plaintiffs have plausibly stated a claim: that it is not enough for Defendants to offer

a program—absentee voting or in-person accommodations—allowing Plaintiffs to

vote; they must also do so in a way that does not deny the benefits that other

individuals enjoy under the voting scheme. See 28 C.F.R. § 35.130(b)(1) □□□□□

(prohibiting public entities from providing ‘an aid, benefit, or service that is not as

effective in affording equal opportunity to ... gain the same benefit ... as that

provided to others”); accord Johnson, 608 F. Supp. 3d at 484 (“Title II of the ADA

requires Defendants to provide a means by which Plaintiffs and their members can

vote by mail privately and independently like all other eligible Texans.”’).

Defendants cite an Eleventh Circuit opinion for the proposition that the

availability of third-party assistance affords Plaintiffs an equal opportunity to enjoy

the benefits of voting. (Doc. 18 at 21 (citing Harris, 647 F.3d at 1108).) The plaintiffs

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in Harris argued that available third-party voting assistance did not let them

communicate their votes as effectively as non-disabled voters. See Harris, 647 F.3d

at 1107-08. The district court found after a bench trial that the plaintiffs “presented

no evidence” supporting their claim, and that therefore those plaintiffs had been

afforded an equal opportunity to access voting benefits. Jd. at 1108. Based on this

unappealed finding, the Eleventh Circuit was “assure[d]... that the Plaintiffs’ rights

under the ADA [had] not been abused.” Jd.

Defendants ask this Court to reach that same conclusion for Plaintiffs here

without the benefit of a developed evidentiary record. It cannot do so. See Lamone,

813 F.3d at 507; Hindel, 875 F.3d at 347. The Harris decision resolved a specific claim

based on a particular set of facts—it did not establish a generally applicable rule of

law that third-party assistance per se validates a voting scheme. This Court has had

no opportunity to make evidentiary findings about whether Plaintiffs have been

afforded an equal opportunity to gain the same benefit of absentee voting as that

provided to others. This is a question that cannot be decided on the basis of dueling

speculative allegations. See zd.

D. Plaintiffs’ Rehabilitation Act claim fails to plausibly establish

discrimination based solely on disability.

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Finally, Defendants contend that Plaintiffs’ Rehabilitation Act claim does not

successfully allege discrimination solely due to disability, and therefore the claim

fails. (Doc. 18 at 25.) This Court agrees.

To state a claim under the Rehabilitation Act, Plaintiffs must allege facts

establishing four things: (1) they are disabled under the Rehabilitation Act, (2) they

are “otherwise qualified,” (3) they have been excluded from a program or activity

“solely” because of their disabilities, and (4) the program or activity is “operated by

an agency that receives federal financial assistance.” Harris v. Thigpen, 941 F.2d

1495, 1522 (11th Cir. 1991). Unlike with their ADA claim, it is not enough for

Plaintiffs to show that Defendants’ refusal to offer them electronic absentee voting

is partly due to disability discrimination; they must show that it is solely because of

disability discrimination. Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005). This

essential element of Plaintiffs’ claim cannot be met if, as is the case here, Defendants

have a basis for discrimination unrelated to Plaintiffs’ disabilities. Schiavo ex rel.

Schindler vy. Schiavo, 403 F.3d 1289, 1300 (11th Cir. 2005) (per curtam).

Plaintiffs argue that they need not explicitly include the word “solely” in their

allegations so long as the allegations plausibly establish they were discriminated

against solely because of their disabilities. (Doc. 26 at 26-27.) They are correct. But

the specific pleading language is not the fatal flaw for Plaintiffs here. The substance

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of their allegations shows that Defendants have an alternative basis for refusing to

provide electronic voting that is unrelated to Plaintiffs’ disabilities: state law limiting

electronic absentee voting to those who are military and overseas. This alternative

basis for discrimination is sufficient under Eleventh Circuit precedent to defeat

Plaintiffs’ Rehabilitation Act claim. See Schiavo, 403 F.3d at 1300; accord Baird ex rel.

Baird v. Rose, 192 F.3d 462, 468 n.6 (4th Cir. 1999) (Undoubtedly, the application

of a neutral rule that applies to disabled and nondisabled individuals alike cannot be

considered discrimination on the basis of disability.”). Accordingly, as to Plaintiffs’

Rehabilitation Act claim only, Defendants’ motion to dismiss is due to be

GRANTED.

V. CONCLUSION

For the reasons stated above, Defendants’ motion to dismiss (doc. 18) is due

to be GRANTED IN PART and DENIED IN PART. The Court will enter an

order consistent with this Memorandum of Opinion.

DONE anpD ORDERED ON JUNE 24, 2024.

UNITED STATES DIS¥RICT JUDGE

215647

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