Hernandez v. New York State Board of Elections

Background

Jose Hernandez and other individual and organizational plaintiffs sued the New York State Board of Elections, its commissioners, and its co-executive directors in their official capacities. The individual plaintiffs were voters with print disabilities who could not independently mark paper ballots. The organizational plaintiffs were advocacy groups supporting people with disabilities.

The plaintiffs brought claims under Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. They argued that New York’s absentee voting program did not give voters with disabilities a meaningful opportunity to vote privately and independently. Their motion sought a preliminary injunction requiring an effective, purpose-built Remote Accessible Vote-by-Mail system statewide for the November 3, 2020 election.

A Remote Accessible Vote-by-Mail system would send ballot data to a vendor, which would produce an accessible HTML ballot that could be marked using screen-reading technology. The marked ballot would be converted to an accessible PDF for printing. The plaintiffs argued that this approach would be more accessible and consistent than creating accessible PDF ballots only after a voter requested one.

For the June 23, 2020 primary, the parties had entered a stipulation requiring county boards of elections to provide accessible, fillable PDF absentee ballots to voters with disabilities who could not privately and independently use paper ballots. The stipulation applied only to that primary and did not resolve the plaintiffs’ remaining claims. The defendants later represented that they would continue those procedures for the November election, prepare accessible ballots in advance, provide additional guidance and training, use quality controls, and require the ballots to meet specified accessibility standards.

Legal standard

A preliminary injunction is an extraordinary remedy. The court explained that a party generally must show likely irreparable harm, a likelihood of success on the merits, that the public interest favors relief, and that the balance of hardships favors the injunction. Because the plaintiffs sought a mandatory injunction that would change election procedures shortly before the election, the court applied a heightened standard requiring a strong showing of irreparable harm and a clear or substantial likelihood of success.

Under the disability laws, public entities must operate their programs so that they are accessible and must provide appropriate auxiliary aids and services when necessary to give people with disabilities an equal opportunity to participate. The court said that voters with disabilities are entitled to meaningful access to New York’s absentee voting program, including the opportunity to cast a private ballot. The public entity must give primary consideration to the individual’s requested aid, but it may use another equally effective method or establish that the requested method would fundamentally alter the program or create undue financial or administrative burdens.

Court’s analysis

The defendants did not dispute that the plaintiffs had qualifying disabilities, that the defendants were covered by the Americans with Disabilities Act, or that New York had an obligation to provide an accommodation allowing voters with disabilities to cast private ballots.

The court credited the plaintiffs’ evidence that Remote Accessible Vote-by-Mail systems generally can provide accessible ballots that voters can mark privately. But it found that the proposed system was not fail-safe. Evidence from New York City showed that an existing system did not address the needs of three voters: Jose Hernandez needed electronic ballot submission, Karen Luxton Gourgey had difficulty saving a ballot that was not a PDF, and Rasheta Bunting did not receive a ballot. The requested injunction did not require electronic ballot submission or address all application-processing problems.

The court also found that the record did not establish systemic problems with accessible PDF ballots outside New York City. It identified problems in Albany County and possibly Suffolk County, but found no evidence that those problems were inherent in the PDF approach or occurred throughout the State. Other voters in Monroe County and Ulster County were able to complete their accessible ballots without incident. The court credited the defendants’ representation that more lead time, limited vendor use, detailed instructions, and increased accessibility review would improve the process.

The court concluded that the plaintiffs had not shown a clear or substantial likelihood that they would defeat the defendants’ argument that the proposed measures were equally effective. It also found that the plaintiffs had not made the required strong showing of actual and imminent irreparable harm because the defendants’ representations, which the court accepted, would be required by court order. The court noted that the record contained gaps and ambiguities and left open the possibility that a fuller record could support a different conclusion.

Finally, the court found that the public-interest and hardship factors did not favor the requested statewide system. New York’s county-based election structure would require many counties to transfer ballot data, work with a vendor, check hundreds or thousands of ballot styles, and perform testing and quality control. The court found that implementing a new statewide system shortly before the election could divert resources and might create problems even in counties where accessible PDF ballots had worked. On the record before it, the court found that those risks outweighed the proposed system’s benefits compared with the defendants’ proposed measures.

Disposition

The court denied the plaintiffs’ motion for a preliminary injunction requiring the State to implement a Remote Accessible Vote-by-Mail system statewide. It also ordered the defendants to submit a proposed injunction consistent with their written and oral representations about implementing an accessible absentee voting system for the November 3, 2020 election. The defendants were required to meet and confer with the plaintiffs about the proposed injunction and submit it to the court by 5:00 p.m. on August 17, 2020. The clerk was directed to close docket entry 55.