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Blind voter advocates sue over state's absentee ballot system

New Hampshire Union Leader - 7/9/2020

Jul. 8--CONCORD -- A coalition of disability organizations has filed a lawsuit against state officials claiming New Hampshire's absentee ballot system could negatively impact the safety and privacy of voters who are blind or have other disabilities during the coronavirus pandemic.

The lawsuit, filed Tuesday in U.S. District Court against Secretary of State William Gardner and the New Hampshire Department of State, asserts discrimination against voters with disabilities who are unable to independently and privately mark an absentee paper ballot due to blindness, low vision or physical disability.

The lawsuit and request for preliminary injunction were filed by Disability Rights Center-New Hampshire (DRC-NH) and Brown, Goldstein & Levy, LLP on behalf of the National Federation of the Blind (NFB), the National Federation of the Blind of New Hampshire (NFBNH), Granite State Independent Living (GSIL), and several New Hampshire voters with disabilities, including Daniel Frye of Concord, Jean Shiner of Exeter and Jeffrey Dickinson of Franklin.

The lawsuit was filed in federal court under Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973. Instead of monetary damages, plaintiffs seek reform to the systems and practices that discriminate against voters with disabilities in time for the Sept. 8 primary election and Nov. 3 general election.

"The National Federation of the Blind has made New Hampshire's election officials aware of their obligations to blind voters and offered our expertise and assistance, but so far to no avail," said Mark Riccobono, President of the National Federation of the Blind, in a statement. "We therefore bring this litigation to prevent the continued treatment of New Hampshire's blind voters as second-class citizens."

The lawsuit claims the process for requesting an absentee ballot is inaccessible, and the requirement that absentee voters fill out and mail in a printed paper ballot discriminates against blind and physically disabled voters, who -- unlike nondisabled voters -- must choose between having someone else fill out their ballot, forfeiting their right to vote privately and independently, or visit a polling place in person, potentially exposing themselves or loved ones to COVID-19.

Gardner said this is the first time the disability rights community has sued the state.

"That's what is disappointing to me. We have been working with these folks to try and come up with a safe and secure system. It's not a simple exercise," Gardner said.

New Hampshire was one of only three states in the country that weren't sued over giving disability groups proper access to voting in person at the polls following passage of the federal Help America Vote Act in 2002.

"We have had a long history of cooperation with the disability community," Gardner said.

The state first came up with a "phone/fax" system which allowed these voters to cast ballots safely at the polling place.

"We called it the all in one system and we have set aside our unspent money in the Help America Vote Act to use on a better system at the polls if one is ever devised and we have made that investment," Gardner said.

Since then the state upgraded that program to a tablet computer at each polling place that displays candidate names, speakers to read the choices aloud, a keyboard to allow choices to be selected, and a printer to print the selections onto a final ballot to submit.

Disability rights advocates praised that system.

Disability rights groups sued the city of Concord over their access to this same technology for local elections, which resulted in a settlement for the city to provide the same accommodation.

Gardner said computer consultants from MIT and California Institute of Technology have advised him that it's not possible to create an internet portal for individual voters to fill out absentee ballots that could be protected.

"My priority is to make sure we have a system that doesn't allow anyone to see how people have voted," Gardner said.

The plaintiffs seek the implementation of an accessible system for electronic delivery and marking of absentee ballots by voters who are blind or who have other physical disabilities and an accessible process for voters to register to vote and request an absentee ballot.

The lawsuit claims technology is available and in use across the country that allows voters with disabilities to register to vote and request, receive, fill out, and even return their absentee ballots electronically. Court documents mention several third-party vendors that provide online or electronic ballot marking systems including Prime III, Democracy Live, Five Cedars, Dominion Voting, and Voting Works by Enhanced Voting.

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New Hampshire Union Leader State House Bureau Chief Kevin Landrigan contributed to this report.

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