Shelbi Hindel v. Jon Husted

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 17a0257p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

SHELBI HINDEL; BARBARA PIERCE; MARIANNE ┐

DENNING; THE NATIONAL FEDERATION OF THE BLIND, │

INC., │

Plaintiffs-Appellants, │

> No. 17-3207

│

v. │

│

│

JON HUSTED, Ohio Secretary of State, │

Defendant-Appellee. │

┘

Appeal from the United States District Court

for the Southern District of Ohio at Columbus.

No. 2:15-cv-03061—George C. Smith, District Judge.

Argued: October 12, 2017

Decided and Filed: November 13, 2017

Before: SUHRHEINRICH, GRIFFIN, and KETHLEDGE, Circuit Judges.

_________________

COUNSEL

ARGUED: Jessica P. Weber, BROWN, GOLDSTEIN & LEVY, LLP, Baltimore, Maryland,

for Appellants. Nicole M. Koppitch, OFFICE OF THE OHIO ATTORNEY GENERAL,

Columbus, Ohio, for Appellee. ON BRIEF: Jessica P. Weber, Daniel F. Goldstein, BROWN,

GOLDSTEIN & LEVY, LLP, Baltimore, Maryland, Jason C. Boylan, Kristen Henry,

DISABILITY RIGHTS OF OHIO, Columbus, Ohio, for Appellants. Nicole M. Koppitch,

OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee. Claudia

Center, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, INC., San Francisco,

California, Sophia Lin Lakin, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, INC.,

New York, New York, Daniel R. Walfish, Andrea G. Hood, Benjamin J. Reed, Michael E.

Mirdamadi, MILBANK, TWEED, HADLEY & MCCLOY LLP, New York, New York, for

Amici Curiae.

No. 17-3207 Hindel, et al. v. Husted Page 2

_________________

OPINION

_________________

GRIFFIN, Circuit Judge.

The Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, et seq., provides

important safeguards protecting the rights of the disabled. In this appeal, plaintiffs claim Ohio’s

paper-ballot absentee voter system discriminates against the blind, in violation of Title II of the

ADA. Under the Ohio scheme, blind voters must seek the aid of a sighted person in order to

vote absentee, thus depriving them of the ability to vote anonymously. Plaintiffs propose that the

State of Ohio provide blind voters with an online absentee ballot in lieu of a paper one, and adopt

online ballot marking tools used in other states for blind voters. The district court granted

judgment on the pleadings in favor of defendant Ohio Secretary of State, ruling that plaintiffs’

proposed accommodation would fundamentally alter Ohio’s voting program. Because the

district court based its ruling on defendant’s mere allegation of an affirmative defense without

any evidentiary support, we reverse and remand for further proceedings consistent with this

opinion.

I.

Plaintiffs allege Ohio’s absentee voter system violates the ADA by failing to provide

reasonable accommodations for the blind. A paper ballot is generally the only available means

for an absentee voter to vote.1 Because blind voters must seek assistance from sighted

individuals to fill out their paper ballots, plaintiffs allege Ohio deprives them of their equal

opportunity to vote privately and independently.

Plaintiffs contend that the deprivation is not intractable. On the contrary, they claim that

multiple auxiliary aids and services exist that could afford plaintiffs the ability to vote privately.

For example, Maryland developed its own online ballot marking tool specifically designed to be

1

In accordance with the Uniformed and Overseas Civilian Absentee Voting Act of 1986, 42 U.S.C.

§ 1973ff, et seq., military personnel and overseas civilians may vote via email. This section was editorially

reclassified to 52 U.S.C. § 20301, et seq., and made part of the Voting Assistance and Election Administration.

No. 17-3207 Hindel, et al. v. Husted Page 3

compatible with screen readers that allows blind voters to vote without assistance from others.

Maryland has offered to share its online ballot marking tool with other states free of charge.

Oregon, Wisconsin, New Hampshire, and Alaska use substantially similar systems. On the basis

of these allegations, plaintiffs’ complaint raises one count alleging a violation of the ADA,

requesting a permanent injunction prohibiting defendant from violating the ADA, and requiring a

private and independent method of absentee voting for the blind.2

Defendant raised the affirmative defense of “fundamental alteration” under the ADA in

his answer and, concurrently, filed a Rule 12(c) motion for judgment on the pleadings based

upon this defense. See Fed. R. Civ. P. 12(c). He argued, contrary to plaintiffs’ allegations, that

he has not refused to implement the absentee voting technology plaintiffs have requested;

instead, it would violate state law for defendant to do so in light of Ohio’s certification

requirements for voting equipment. According to defendant, plaintiffs’ attempt to circumvent

Ohio’s election laws and force through untested and uncertified voting tools—which are neither

appropriate nor necessary auxiliary aids under the ADA—would fundamentally alter Ohio

election law.

The district court granted defendant’s motion for judgment on the pleadings. Relying in

part on National Federation of the Blind v. Lamone, 813 F.3d 494 (4th Cir. 2016), the district

court held that plaintiffs had alleged a prima facie case of discrimination under the ADA.

However, the court diverged from Lamone’s reasoning in ruling that the modifications,

accommodations, or auxiliary aids proposed by plaintiffs did not meet the ADA’s requirements

that the proposals be reasonable and not fundamentally alter Ohio’s voting laws.

The district judge noted that while the proposed ballot marking software met the

regulatory definitions of “auxiliary aids and services,” it would not afford plaintiffs and other

blind voters with the complete voting independence they desired because third parties would still

need to assist blind voters in completing and returning the ballot by mail. Moreover, plaintiffs

were asking the court to order the implementation of new software throughout the state before its

2

Plaintiff also complained about Ohio’s voter website, which the district court resolved in plaintiffs’ favor

by way of a permanent injunction, and which neither party has appealed. Accordingly, the absentee voting claim is

the only one before us.

No. 17-3207 Hindel, et al. v. Husted Page 4

compatibility with all of the different voting systems currently used in Ohio’s 88 counties was

established. Because plaintiffs’ proposed accommodation would essentially waive Ohio’s

existing laws regarding pre-implementation review of election tools, the purpose of which are to

protect the validity of elections in Ohio, the district court refused to impose the requested

accommodation on the state. Therefore, the court granted judgment on the pleadings in favor of

defendant.

Plaintiffs now appeal.

II.

“After the pleadings are closed—but early enough not to delay trial—a party may move

for judgment on the pleadings.” Fed. R. Civ. P. 12(c). We review de novo an order dismissing

an action under Rule 12(c) of the Federal Rules of Civil Procedure, W.J. O’Neil Co. v. Shepley,

Bulfinch, Richardson & Abbott, Inc., 765 F.3d 625, 629 (6th Cir. 2014), and apply the same

review standard as for review of a Rule 12(b)(6) motion to dismiss. Barany-Snyder v. Weiner,

539 F.3d 327, 332 (6th Cir. 2008). “[A]ll well-pleaded material allegations of the pleadings of

the opposing party must be taken as true, and the motion may be granted only if the moving

party is nevertheless clearly entitled to judgment” as a matter of law. JPMorgan Chase Bank,

N.A. v. Winget, 510 F.3d 577, 581–82 (6th Cir. 2007) (quoting S. Ohio Bank v. Merrill Lynch,

Pierce, Fenner & Smith, Inc., 479 F.2d 478 (6th Cir. 1973)). To survive a Rule 12(c) motion, “a

complaint must contain direct or inferential allegations respecting all the material elements under

some viable legal theory.” Commercial Money Ctr., Inc. v. Ill. Union Ins. Co., 508 F.3d 327,

336 (6th Cir. 2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“[A] complaint must

contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its

face.’ 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.”

(citations omitted) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 570 (2007))).

No. 17-3207 Hindel, et al. v. Husted Page 5

III.

A.

Plaintiffs challenge the district court’s decision both procedurally and on the merits.

We focus on their procedural argument—the court erred in making a fact-specific determination

on the basis of the pleadings alone that plaintiffs’ proposed accommodation would

fundamentally alter Ohio’s voting system. Instead, they argue this determination should have

been made only after discovery, expert testimony, an evidentiary hearing, or trial. We agree.

“Fundamental alteration” is an affirmative defense under the ADA providing that

governmental entities need not accommodate disabled individuals if doing so “would result in a

fundamental alteration in the nature of a service, program, or activity or in undue financial and

administrative burdens.” 28 C.F.R. § 35.164.3 Affirmative defenses to ADA claims such as this

are typically fact-based and not capable of resolution on the basis of the pleadings alone.

See Mary Jo C. v. N.Y. State & Local Ret. Sys., 707 F.3d 144, 153 (2d Cir. 2013) (“It is a factual

issue whether a plaintiff’s proposed modifications amount to ‘reasonable modifications’ which

should be implemented, or ‘fundamental alterations,’ which the state may reject.” (alterations

& citations omitted)); Radaszewski ex rel. Radaszewski v. Maram, 383 F.3d 599, 609–14 (7th

Cir. 2004) (discussing the difficulty in resolving the fundamental alteration question on the

pleadings); cf. Anderson v. City of Blue Ash, 798 F.3d 338, 356 (6th Cir. 2015) (describing the

“‘highly fact-specific’ nature of the [ADA] reasonableness inquiry”).

In the present case, the district court acknowledged as much:

Although . . . the fundamental alteration analysis is normally a fact-intensive

inquiry, Plaintiffs are asking this Court to judicially certify an election tool that

has never been used in Ohio or even presented to the Ohio Board of Elections for

review. Regardless of any factual findings the Court may make at a later hearing,

there are no allegations before this Court like the factual findings in Lamone.

Namely, neither of the suggested tools have been presented to the Board of

3

Within the ADA, Congress granted the Attorney General the authority to promulgate regulations

necessary to its implementation, 42 U.S.C. § 12134(a), which “are entitled to ‘controlling weight, unless they are

arbitrary, capricious, or manifestly contrary to the statute.’” Johnson v. City of Saline, 151 F.3d 564, 570 (6th Cir.

1998) (quoting Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843–44 (1984)).

No. 17-3207 Hindel, et al. v. Husted Page 6

Elections for certification, testing, or a vote, nor have the tools been used in an

Ohio election before.

However, the district court erred in merely accepting defendant’s affirmative defense

without requiring facts and evidence to support it. Throughout these proceedings, plaintiffs have

alleged that Ohio discriminates against them on the basis of their visual impairments. Their

proposed remedy is to require the state to provide online ballots and allow the use of online

ballot marking tools, as have been used successfully by blind voters in other states. In response,

defendant alleged that adopting plaintiffs’ proposed remedy would fundamentally alter Ohio’s

voting system. This is because all voting machines, and related materials, must be examined by

a bipartisan “board of voting machine examiners,” comprising “competent and experienced

election officer[s]” or persons knowledgeable about the operation of voting equipment before

they can be certified for use in an election. Ohio Rev. Code § 3506.05(B).

But the ADA requires more. The Secretary of State’s mere affirmative-defense

allegation is insufficient to warrant judgment on the pleadings in his favor because “a public

entity has the burden of proving that compliance with this subpart would result in [a

fundamental] alteration.” 28 C.F.R. § 35.164 (emphasis added); cf. Keith v. Cty. of Oakland, 703

F.3d 918, 923 (6th Cir. 2013) (noting, in a Title I case, that the burden shifts to the defendant to

prove its defense under the ADA).

In cases such as this, where an ADA plaintiff is asking for the waiver of a generally

applicable rule, the court’s “focus should be on whether waiver of the rule in the particular case

would be so at odds with the purposes behind the rule that it would be a fundamental and

unreasonable change.” Jones v. City of Monroe, 341 F.3d 474, 480 (6th Cir. 2003) (internal

quotation marks omitted), abrogated in part on other grounds by Lewis v. Humboldt Acquisition

Corp., 681 F.3d 312 (6th Cir. 2012) (en banc). The purpose of Ohio’s certification system is

evident from the statutory text. Ohio Rev. Code § 3506.10 explains that the purpose of the

certification requirements is to ensure the voting device “will correctly, accurately, and

continuously register and record every vote cast.” And “Ohio’s interests in preserving the

integrity of its elections, protecting ‘voters from confusion and undue influence,’ and ‘ensuring

that an individual’s right to vote is not undermined by fraud in the election process’ are

No. 17-3207 Hindel, et al. v. Husted Page 7

compelling.” Susan B. Anthony List v. Driehaus, 814 F.3d 466, 473 (6th Cir. 2016) (quoting

Burson v. Freeman, 504 U.S. 191, 199 (1992) (plurality opinion)).

But it is not enough for defendant to merely allege plaintiffs’ proposed remedy

undermines these interests. In order to prevail on his affirmative defense, defendant has the

burden of production and persuasion to prove that plaintiffs’ proposed accommodation—the

ballot marking tools and electronic ballots—would fundamentally alter Ohio’s election system

by not “correctly, accurately, and continuously register[ing] and record[ing] every vote cast.”

Ohio Rev. Code § 3506.10. Without proof that the proposed ADA accommodation is

unreasonable or incompatible with Ohio’s election system, defendant’s affirmative defense based

on an allegation, alone, is insufficient.

Here, defendant’s arguments fall into the logical fallacy dismissed by the Fourth Circuit

in Lamone: “defendant[] [is] merging [the] procedural certification requirement with

substantive concerns about whether the tool should be certified. The mere fact that a procedural

requirement has not been met does not necessarily mean that the underlying substantive purpose

of that requirement has not been met. The underlying question is fact-specific.” 813 F.3d at

509. The district court erred in accepting defendant’s allegation that the remedy would

fundamentally alter Ohio’s voting system simply because it had not passed the certification

process—only if the substantive interests undergirding the certification rules cannot be met by

the ballot marking tools and electronic ballots, as shown by evidence presented by the parties,

can the district court properly make a determination on defendant’s affirmative defense.

Moreover, a state procedural requirement may not excuse a substantive ADA violation.

Id. at 508 (“The Supreme Court has held that the ADA’s Title II, at least in certain

circumstances, represents a valid exercise of 14th Amendment powers, and as such it trumps

state regulations that conflict with its requirements.”). “Requiring public entities to make

changes to rules, policies, practices, or services is exactly what the ADA does.” Jones, 341 F.3d

at 487 (Cole, J., dissenting). Nonetheless, at the evidentiary hearing on remand, the district court

may look to the certification process as a manner to evaluate the merits of the factual issue.

No. 17-3207 Hindel, et al. v. Husted Page 8

In addition, Ohio’s certification process for “vendors” and “software developers” does

not apply to disabled plaintiffs who claim an ADA violation. See Ohio Rev. Code

§ 3506.05(A)(3) (defining “vendor” as “the person that owns, manufactures, distributes, or has

the legal right to control the use of equipment, or the person’s agent”); § 3506.05(C)(1)

(requiring “vendor[s]” to submit the proposed voting equipment or software for certification).4

Plaintiffs have no statutory standing or duty to employ the certification process.

B.

Defendant also argues the district court correctly distinguished Lamone on the

fundamental alteration analysis for the reasons explicitly noted by the district court in that case.

See Nat’l Fed’n of the Blind v. Lamone, No. RDB-14-1631, 2014 WL 4388342, at *13 (D. Md.

Sept. 4, 2014) (noting the fundamental alteration “analysis would [perhaps] be different if

Plaintiffs sought to gain access to an uncertified tool that had never been used in a real-world

situation.”). But this is a distinction without a difference at this point in the proceedings. The

Fourth Circuit was reviewing a district court judgment post-bench trial. Id. at *1–2; Lamone,

813 F.3d at 501. On the contrary, the district court here did not—and could not, given that it was

reviewing a motion for judgment on the pleadings—engage in the requisite factual inquiry to

determine whether plaintiffs’ proposed remedy would fundamentally alter Ohio’s voting system.

Thus, while the Maryland district court had the opportunity to review and weigh the evidence

before it made its determination, the district court here had no such opportunity. Given, as noted

4

In its entirety, Ohio Rev. Code § 3506.05(C)(1) provides:

A vendor who desires to have the secretary of state certify equipment shall first submit the

equipment, all current related procedural manuals, and a current description of all related support

arrangements to the board of voting machine examiners for examination, testing, and approval.

The submission shall be accompanied by a fee of two thousand four hundred dollars and a detailed

explanation of the construction and method of operation of the equipment, a full statement of its

advantages, and a list of the patents and copyrights used in operations essential to the processes of

vote recording and tabulating, vote storage, system security, pollbook storage and security, and

other crucial operations of the equipment as may be determined by the board. An additional fee,

in an amount to be set by rules promulgated by the board, may be imposed to pay for the costs of

alternative testing or testing by persons other than board members, record-keeping, and other

extraordinary costs incurred in the examination process. Moneys not used shall be returned to the

person or entity submitting the equipment for examination.

See also § 3506.05(H)(1) (“The guidelines shall establish procedures requiring vendors or computer software

developers to place in escrow with an independent escrow agent approved by the secretary of state a copy of all

source code and related documentation, together with periodic updates as they become known or available.”).

No. 17-3207 Hindel, et al. v. Husted Page 9

above, the highly factual nature of defendant’s fundamental alteration defense, see, e.g.,

Anderson, 798 F.3d at 356, the court erred in granting judgment on the pleadings.

IV.

While plaintiffs also allege the district court erred in granting judgment on the pleadings

to defendant because their proposed remedy would not fundamentally alter Ohio’s voting

system, we do not address that issue here. This court cannot assess that substantive issue for the

same reason the district court erred in so doing—namely, the facts supporting the parties’

positions have yet to be litigated.

V.

We reverse the judgment of the district court and remand for further proceedings

consistent with this opinion.