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Hindel v. Husted

United States Court of Appeals, Sixth Circuit

November 13, 2017

Shelbi Hindel; Barbara Pierce; Marianne Denning; The National Federation of the Blind, Inc., Plaintiffs-Appellants,
v.
Jon Husted, Ohio Secretary of State, Defendant-Appellee.

          Argued: October 12, 2017

         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:

          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.

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

          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, ...


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