Taliaferro et al v. North Carolina State Board of Elections et al, No. 5:2020cv00411 - Document 62 (E.D.N.C. 2021)
Court Description: ORDER granting 57 Motion for Judgment on the Pleadings. Signed by District Judge Terrence W. Boyle on 6/15/2021. Counsel should read the order in its entirety for critical deadlines and information. (Stouch, L.)
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Taliaferro et al v. North Carolina State Board of Elections et al Doc. 62 IN THE UNITED ST ATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISION C iv il Case No. 5:20-cv-4 11 -BO HELEN JO TALIAF ERRO, KENN ETH D URD EN, KEND A LL GIBB S, RI C KY SCOTT, NORT H CA ROLI NA CO UNC IL OF THE BLIND, INC., GOV ERNOR MOREH EA D SCHOOL A LU MNI ASS OCIATION, IN C., and DI SA BILI TY RI G HTS NORT H C A ROLI NA, Pla inti ffs, ) ) ) ) ) ) ) ) ) ) ORDER GRANTING PLAINTIFFS' MOTION FOR JUDGMENT ON THE PLEADINGS ) V. NORTH CA RO LINA STATE BOA RD OF ELECTIONS, et al, Defendants. ) ) ) ) ) T hi s cause comes before th e Court on the Plaintiffs' Corrected M oti o n for Judg ment on th e Pleadings pursuant to Rule 12(c) of the Federal Rul es of Ci vil Procedure. D efendants have responded and plaintiffs have indicated th ey would not fil e a repl y. T he motio n is ripe for ruling and, fo r the reasons th at fo ll ow, the moti on (DE 57) is granted . Pla intiffs fi led a Compla int on July 27, 2020 all eg in g that Defendants' A bsentee Votin g Program is inaccess ible to blind voters and therefore in v io lati on of th e A merican s w ith Disabilities Act (A DA), 42 U.S.C. § 12 101 et seq., and Secti o n 504 of the Rehabilitati on Act of 1973 (Secti o n 504), 29 U.S .C. § 794. (Co mp I., DE 1) . Plaintiffs thereafter fil ed a Motion fo r Pre liminary Injun ction seeking that access ible formats of absentee ballots - including access ibl e e lectroni c, Bra ille, Large Print, and audi o fo rm ats - of N o rth Caro lina ' s sta ndard print paper ba ll ots be made available for the November 3, 2020 Ge neral Electi o n. (M otion fo r Pre liminary Injuncti on, DE 26) . The Court granted Pla intiffs' moti on and ente red a Dockets.Justia.com pre liminary injunction o rdering Defend ants to prov id e blind voters access to the Democracy Li ve porta l, an access ibl e e lectroni c voting system in use and availabl e to overseas and military voters to request, mark, and return the ir a bsentee ballot in the 202 0 general e lecti o n. (Ord er, D E 41 ). Defendants prov ided blind voters an access ible e lectro ni c means of voting beg inn ing on O cto ber 19, 2020 to mark and return their a bsentee ba ll ots. (A nsw er iii[ 29, 37, 81 -83, 90-92, D E 53). Defendants admit th at its A bsentee V otin g Program does not currentl y offer blind vote rs a lternati ve fo rm ats of its stand ard print abse ntee ball ot and that, as a result, blind voters are not able to cast the ir a bsentee ballot pri vate ly and ind e pend ently . (Id. at ~~ 1- 2). North Caro lina ' s Absentee Votin g Program mu st be operated in compliance w ith th e AD A and Sect ion 504 . Upo n co ns id erati o n of Pla inti ffs' Motion fo r Jud gment o n the Pleadin gs, and defendants' lim ited opposition thereto, pla intiffs' moti on is G RANTE D and it is here by ORDERED that: 1. T he North Caro lina State Board of E lections (" NCS B E") sha ll ensure that blind I voters can request, m ark, and return the ir a bse ntee ballot th roug h access ibl e e lectroni c means 2 in the 202 1 mun ic ipa l e lect io ns (w henever he ld) and in a ll subsequent e lections. 2. Within 30 days of thi s Order, the NCS BE w ill post instructi o ns in an access ibl e e lectroni c fo rm at o n th e NCS B E' s webs ite describin g the process o f requestin g, markin g, and returning an absentee ballot us in g NCS BE' s access ibl e e lectroni c voting system . NCS BE w ill al so prov id e blind voters the opportunity to cast a sampl e ba ll ot us ing th e accessibl e e lectronic voting system to enable them to becom e famili ar w ith it before castin g th e ir li ve ba ll ot. 1 T he Court adopts th e Plaintiffs ' use of the word " blind" to describe individua ls w ho, as a result of a vision impa irment, use a lternative techniques or ass istive techno logy fo r tasks done visua lly, inc luding peo ple w ho id enti fy as "tota lly" blind and people w ith low v is ion. 2 North Caro lin a utili zed an o n line porta l know n as " Democracy Live" for thi s pu rpose during the 2 020 genera l e lecti on . 2 3. Blind voters for whom the accessib le electronic voting syste m is not effective 3 may request an a lternative format of th eir absentee ballot that includes, but is not limited to, Large Print, Braille, an d audio formats , which wi ll be promptly processed by NCSBE as a request for effective communication under the ADA and Secti on 504. 4. Within 30 days of this Order, the NCSBE shall ensure that all information avai lable on its homepage and its webpages dedicated to "absentee voting" and " voters with di sabilities" is access ible. This requires Defendants to ensure that the abse ntee ba ll ot request form , samp le ballots ava ilable through the " voter search" tool (w hen available to the public at large), the electronic vot ing system, and other communications and documents ava ilable on its website related to the exercise of the right to vote 4 aimed at the public at large and at voters with disabi lities are access ibl e. 5. Defendant shall ensure that all documents and comm unications su bj ect to this Order meet the fo llowing access ibility standards: a. Electronic documents and webpages must be comp li ant w ith WCAG 2. 1 AA standards and upd ated as necessary to remain comp liant with any subsequent 3 It is understood that not every blind indi vid ual has access to an electro ni c device to request, mark, and return their absentee ballot and has internet access. Additi onally, there are blind individuals w ho are not computer-users and w hose most effective method of commu nication is Braille, Large Print, and/or audio formats . 4 Examples include: (a) the NCSBE website homepage, i.e., https://www. ncsbe.gov/; (b) NCSB E webpages and documents relating to voter reg istrati on; (c) NCSBE webpages and documents relating to absentee ballots; (d) NCSBE webpages and documents relating to voters with disabi lities, i.e. https: //www.ncsbe.gov/voting/he lp-voters-disabilities ( or any future iteration of said page); and (e) all PDF forms on the website that are fil led out and submitted by voters to the NCSBE or any Co unty Board of Elections. Requests for a lternative accessible formats of the Challenge, Protest, Appea l and Complaint fo rm s, and the instructions for completing such forms, will be processed by NCSB E pursuant to the ADA policy described in Paragraph 7 of this Consent Decree . 3 WCAG AA standard; b. Electron ic documents and webpages must be scree n readable using common ass istive technology, such as Job Access with Speech ("JAWS") software, Apple VoiceOver, and Android TalkBack, and as app licable, shall include insertion of tags and fillable obj ects so that they can be completed independently and privately by the requesting indi vid ual using standard, accessib le technology; c. Electronic documents and webpages must permit voters to ente r a typed signature or place an electronic signature where a signature is req uired (i .e ., the absentee ballot req uest form, absentee ballot, and abse ntee ballot return); ct. Documents provided in Large Print must adhere to C lear Print Accessibility Guide lines, Clear Print Accessibility Guidelines, CNIB Foundation, https: //www.enib.ca/s ites/defau It/fi les/202008/C lear%20Print%20G u idel ines%202020. pdf (last updated 2020), and the American Printing House for the Blind ' s G uid elines for Print Document Design, J. E laine Kitchel, APH Guidelines for Print Document Design, T he A merican Printing House for the Blind (Sept. 11 , 20 19), https://www.aph.org/ aph-gu ide lines-for-pri nt-document-d esign ; and e. Braille documents must co nform to best practices m the field of accessible document design for each format type and should adhere to best practices for Braille transcription by an experienced and certified Braille transcribe r. The NCSBE shall adopt and revise its policies as necessary to meet and remain compliant with these accessib ili ty standards. 4 6. The NCS BE shall identify its ADA Coordinator to the Court and shall adopt or revise policies regarding its procedures fo r providing prompt and tim ely equal access to the Absentee Voting Program fo r people with disabilities as necessary to effectuate the terms of thi s Order. a. The policy will include a prov ision requiring that any person who requests an alternati ve fo rmat of their absentee ballot be notifi ed of their ri ght to contact Di sabi lity Ri ghts North Caro li na for further assistance. The policy will be circulated to County Boards of Elections and posted prominently on Defendants' website. b. The policy will make clear that the ADA Coordinator will receive and reso lve questions and comp laints about the access ib il ity of the voting process for people with disabilities. The ADA Coordinator' s contact information shall be included in the policy and easily identifiable on the NCS BE website and any access ible electronic voting too l, and shall prov ide several methods to prov ide feedback, including a mailing address, telephone number, and an email address. The policy shall require that the ADA Coordinator ensure that NCSB E keeps records of all requests by bl ind individuals for access ible alternati ve fo rmats, includ ing but not limited to Brai lle, large print, audio, or accessible electronic nav igable fo rmats and the NCS BE' s reso luti on of the request. 7. The NCS BE will provide tra ining and support as necessary to ensure that County Boards of Electi ons are adequate ly informed of all access ible voting formats, and that County Boards of Elections acknow ledge and process requests fo r accessible absentee ballots in a timely fashion. 5 8. T he NCS BE shall establi sh a process th ro ugh w hich th e NCS BE solicits, receives, and addresses co mplaints and feedback fro m the public regardin g its prov ision of access ible formats to indi vid ua ls w ith d isabilities . T he NCS BE agrees to co nti nue prov iding info rm ation about access ible absentee 9. ba ll ots on a prom inent, easy to find page of its website, and to ma intain this webpage and continue to make thi s in fo rmation avai lab le to voters in a ll fu ture e lections. C urrently, th is page can be fo und at https: //www. ncsbe.gov/voting/help-voters-di sabilities. NCS BE sha ll submit a statu s report to the Court no late r than 45 days before the 10. 202 1 mun ic ipal electi on, w he never he ld , that shall include: a. A report on NCS B E' s readiness to provi de bl ind voters the abil ity to requ est, mark, and return the ir absentee ballot th ro ugh access ible e lectro ni c means for th e 202 1 muni c ipal electi on; b. Vend ors identified by NCSBE to faci li tate their time ly provis ion of Large Print, Bra ille, and access ible electroni c fo rmats of absentee ba ll ots and other communi cati ons related to votin g processes; c. T he nam e and contact in formation fo r its ADA Coordinator; and d. Copi es of a ll policies and procedures generated pursuant to the preceding paragraph s of thi s Order. 11 . NCS BE sha ll submit a status report to th e Court no late r th an 90 days after the 2021 muni cipal electi on, w henever held , and subsequent e lecti ons th at sha ll include : a. Data on the number of voters w ho requ ested an access ible format of their absentee ba ll ot or commu nicati ons re lated to voting because of a visua l 6 impairment, and the number of docum ents in access ible fo rmats N CSBE provided broken down by accessible format type; and b. Summ ari es of all compl aints rece ived (without ident ifyi ng in fo rm atio n) regarding the prov ision of access ible docum ent fo rm ats to indi v idual s w ith v isual impairments a nd NCSB E's responses to those compl aints. 12. W ithin 90 days after the 202 1 muni c ipal electi on (wheneve r he ld) and after each subsequent e lecti on du ring th e tim e thi s case remains on the Co urt's docket, NCS BE sha ll prov ide Plainti ffs w ith a report conta ining the fo ll owing info rm ati on in the aggregate and by coun ty: a. T he number of individuals w ith di sabilities who requ ested a n access ible absentee ballot by each access ible ba ll ot ty pe; b. T he number of indi viduals w ho were prov ided an access ible absentee ba ll ot and th e number of each type of access ible ab sentee ball ot provided ; c. T he number of indi v iduals who successfull y returned an accessi ble absentee ba ll ot and the number of each type of access ible absentee ball ot return ed ; and d . Copies of any w ritten complaints or feedback rece ived by the State Board fro m voters w ith di sabilities, or fro m County Board s of E lecti ons, regard ing access ible absentee ball ots and descriptions of how any compl aints were reso lved . 13. A ny motion fo r attorneys' fees and costs accruin g prior to th e entry of thi s Orde r shall be made w ithin ninety (90) days of the date thi s Order is entered by the Court. 14. Attorn eys' fees and costs in co nnecti on w ith any moti on to enfo rce the term s of thi s Order may be cla imed in acco rdance wi th appli cable law . 15. T he Co urt sha ll retain jurisdi cti on over th is case unti I the co nc lusion of the 2024 7 Pres identia l E lection for the purpose of ensuring co mpli ance with thi s Order. CONCLUSION For the foregoing reasons, Plaintiffs' Corrected M otion for Jud gm ent on the Plead ings (DE 57) is GRANTED. The c lerk is DIRECTED to enter judgm ent accordingly and close the file. The Court expressly reserves continuing jurisdiction over this matter to ensure compliance with thi s Order. Plaintiffs are permitted ninety (9 0) days from the date of entry of thi s o rder to seek attorney fees and costs. SO ORDERED this //day of June, 202 1. - - y ~o/!r Terrence W. Boy le United States District Judge 8
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