National Federation of the Blind v. Linda Lamone

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-2001

NATIONAL FEDERATION OF THE BLIND; KENNETH CAPONE; MELISSA
RICCOBONO; JANICE TOOTHMAN,

Plaintiffs - Appellees,

v.

LINDA H. LAMONE, State Administrator, State Board of
Elections, in her official capacity; DAVID J. MCMANUS, JR.,
Chairman, State Board of Elections, in his official
capacity; BOBBIE S. MACK, Member, State Board of Elections,
in her official capacity; PATRICK J. HOGAN, Member, State
Board of Elections, in his official capacity; MICHAEL R.
COGAN, Member, State Board of Elections, in his official
capacity; KELLY A. HOWELLS, Member, State Board of
Elections, in her official capacity,

Defendants – Appellants,

and

AMERICAN COUNCIL OF THE BLIND OF MARYLAND;
VERIFIEDVOTING.ORG; SAVEOURVOTES.ORG; CINDY LABON; CHARLES
CRAWFORD; JANE SHEEHAN,

Intervenors.

--------------------------

CIVIL RIGHTS EDUCATION AND ENFORCEMENT CENTER; MARYLAND
DISABILITY LAW CENTER; ADAPT MARYLAND; AMERICAN CIVIL
LIBERTIES UNION; ARC MARYLAND; ARC OF THE UNITED STATES;
ASSOCIATION OF ASSISTIVE TECHNOLOGY ACT PROGRAMS; DISABILITY
LAW CENTER FOR VIRGINIA; DISABILITY RIGHTS ADVOCATES;
DISABILITY RIGHTS BAR ASSOCIATION; DISABILITY RIGHTS
EDUCATION & DEFENSE FUND; DISABILITY RIGHTS NORTH CAROLINA;
FREEDOM CENTER; IMAGE CENTER FOR PEOPLE WITH DISABILITIES;
INDEPENDENCE NOW; JUDGE DAVID L. BAZELON CENTER FOR MENTAL
HEALTH LAW; LEAGUE FOR PEOPLE WITH DISABILITIES; MARYLAND
DEVELOPMENTAL DISABILITIES COUNCIL; MARYLAND DISABILITIES
FORUM; NATIONAL ASSOCIATION OF THE DEAF; NATIONAL DISABILITY
RIGHTS NETWORK; ON OUR OWN OF MARYLAND; PARALYZED VETERANS
OF AMERICA; PEOPLE ON THE GO; PROTECTION AND ADVOCACY FOR
PEOPLE WITH DISABILITIES; SOUTHERN MARYLAND CENTER FOR
INDEPENDENT LIVING; UNITED SPINAL ASSOCIATION; WEST VIRGINIA
ADVOCATES; UNITED STATES OF AMERICA,

Amici Supporting Appellees.

Appeal from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:14-cv-01631-RDB)

Argued: October 28, 2015 Decided: February 9, 2016

Before GREGORY, DUNCAN, and FLOYD, Circuit Judges.

Affirmed by published opinion. Judge Floyd wrote the opinion,
in which Judge Gregory and Judge Duncan joined.

ARGUED: Julia Doyle Bernhardt, OFFICE OF THE ATTORNEY GENERAL OF
MARYLAND, Baltimore, Maryland, for Appellants. Jessica Paulie
Weber, BROWN, GOLDSTEIN & LEVY, LLP, Baltimore, Maryland, for
Appellees. Thomas Evans Chandler, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Amicus United States of America.
ON BRIEF: Brian E. Frosh, Attorney General of Maryland, OFFICE
OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for
Appellants. Daniel F. Goldstein, BROWN, GOLDSTEIN & LEVY, LLP,
Baltimore, Maryland, for Appellees. Amy F. Robertson, CIVIL
RIGHTS EDUCATION AND ENFORCEMENT CENTER, Denver, Colorado;
Alyssa R. Fieo, MARYLAND DISABILITY LAW CENTER, Baltimore,
Maryland, for Amici Civil Rights Education and Enforcement
Center, Maryland Disability Law Center, ADAPT Maryland, American
Civil Liberties Union, Arc Maryland, Arc of the United States,
Association of Assistive Technology Act Programs, disAbility Law
Center for Virginia, Disability Rights Advocates, Disability
Rights Bar Association, Disability Rights Education & Defense
Fund, Disability Rights North Carolina, Freedom Center, IMAGE
Center for People with Disabilities, Independence Now, Judge

2
David L. Bazelon Center for Mental Health Law, League for People
with Disabilities, Maryland Developmental Disabilities Council,
Maryland Disabilities Forum, National Association of the Deaf,
National Disability Rights Network, On Our Own of Maryland,
Paralyzed Veterans of America, People on the Go, Protection and
Advocacy for People with Disabilities, Southern Maryland Center
for Independent Living, United Spinal Association, and West
Virginia Advocates. Vanita Gupta, Principal Deputy Assistant
Attorney General, Mark L. Gross, Civil Rights Division, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Amicus
United States of America.

3
FLOYD, Circuit Judge:

Maryland allows any voter to vote via absentee ballot. A

voter may obtain a blank hardcopy absentee ballot by mail, fax,

or by downloading and printing one from a website. The hardcopy

ballot must be marked by hand, signed, and returned via mail or

hand-delivery to the voter’s local election board.

The National Federation of the Blind and individual

disabled Maryland voters sued state election officials under

Title II of the Americans with Disabilities Act (“ADA”) and

Section 504 of the Rehabilitation Act. Plaintiffs allege that

marking a hardcopy ballot by hand without assistance is

impossible for voters with various disabilities, and that they

have therefore been denied meaningful access to absentee voting.

After a bench trial, the district court found that Maryland’s

program, as then structured, did not comport with ADA and

Rehabilitation Act requirements. The district court further

found that plaintiffs’ proposed remedy—the use of an “online

ballot marking tool” that would enable disabled voters to mark

their ballots electronically—was a reasonable modification that

did not fundamentally alter Maryland’s absentee voting program.

Defendant election officials now appeal all these aspects of the

district court’s decision. For the reasons below, we affirm.

4
 I.

A.

Elections in the State of Maryland are overseen by the

State Board of Elections (“Board”). Md. Code Ann., Elec. Law

§§ 2-101 to 102 (Westlaw current through the 2015 Regular

Session of the General Assembly) (“Elec. Law”). The Board is

comprised of five members. Elec. Law § 2-101(a). The Board

appoints a State Administrator of Elections who is designated as

“the chief State election official” and tasked with

administering Maryland’s election apparatus. Id. § 2-103.

Maryland provides its voters with a number of different

means to vote. Maryland has nearly 2,000 polling places at

which a voter may cast a ballot on Election Day. The

overwhelming majority of these polling places are accessible to

physically disabled voters and are staffed with election judges

trained in serving voters with disabilities. The polling place

voting machines have a number of accessibility features designed

to assist disabled voters in casting their ballots. Maryland’s

voting machines allow voters to magnify the font of the ballot,

to alter the color contrast, and to position the interface

screen such that voters can sit down while casting their

ballots. The voting machines can also be programed for non-

visual access by means of an audio ballot; when using the audio

features a voter receives a headset and numeric keypad to

5
navigate the ballot choices. Voters who desire assistance in

marking their ballots may be assisted by an individual of their

choosing or by an election judge (in the presence of an election

judge of another political party). The voting machines are not

compatible with some common personal accessibility devices such

as refreshable Braille displays.

Maryland also allows voters to vote in person for an eight-

day period before Election Day at sixty-four early voting

polling stations. All of these early voting polling places are

physically accessible.

Finally, any Maryland voter may vote by absentee ballot. A

voter can obtain a ballot by mail, fax, or electronically by

downloading a ballot from a website. A voter who electronically

downloads an absentee ballot must print out the ballot in

hardcopy, mark their choices by hand, and then sign and return

the hardcopy ballot to their local board of elections. An

absentee voter may designate an agent to pick up and deliver a

ballot. Absentee voters may also have an individual of their

choice assist them in hand marking the ballot.

B.

Historically, as noted, an absentee voter who obtained an

absentee ballot electronically needed to print out the blank

ballot and mark their choices by hand on the printed hardcopy

6
ballot. For several years, Maryland has been developing a piece

of software referred to as an “online ballot marking tool.” The

tool can be used by absentee voters who choose to obtain their

absentee ballots electronically; the tool enables voters to mark

their choices electronically and then print out a completed

ballot. 1 When the ballot is printed, the voter’s selections

appear on a number of pages followed by a separate signature

page. The voter must still sign the signature page and return

the entire hardcopy ballot to the local board of elections.

Only printed and signed ballots received by a local board of

elections are counted in determining the result of an election.

Maryland’s Board developed the online ballot marking tool

over a number of years, including with the participation of

plaintiff National Federation of the Blind. The Board has

solicited feedback and implemented a number of usability and

accessibility enhancements for disabled voters. The tool is not

compatible with all computer browsers or operating systems, but

does function properly with a variety of reasonably up-to-date

products. Importantly for individuals with certain

1
The tool provides the voter an interface program on the
computer they are using. Voters mark their ballots using the
computer program and are then presented with a review screen
that allows voters to verify that their selections are accurate.
When a voter confirms the selections, the computer transmits the
information to the state election board’s computer server. The
server generates a marked ballot in the form of a PDF file,
which the voter can then print out.

7
disabilities, the ability to use the tool on their own computers

may enable them to use the personal assistive devices that they

ordinarily use to interface with the computer, such as a

refreshable Braille display, to mark their ballot choices.

C.

An early, non-accessible version of the online ballot

marking tool was available to absentee voters during Maryland’s

2012 primary elections. Following the primary elections, a

question arose as to whether the tool needed to be officially

certified pursuant to Maryland Election Law Section 9-102, which

requires certification of any “voting system” prior to use. The

Maryland Attorney General provided an opinion that the tool did

not meet the statutory definition of a “voting system” and did

not require certification. See Certification of Voting Systems

Does Not Apply to Absentee-Ballot-Marking Wizard, 97 Op. Md.

Att’y Gen. 32 (2012). However, apparently due to lingering

concerns over the status of the online ballot marking tool, the

Board only made the tool available to certain overseas and

military absentee voters for the 2012 general election. Use of

the tool in the 2012 primary and general elections was

apparently uneventful.

The Maryland General Assembly subsequently clarified the

status of the tool. In 2013, the General Assembly passed the

8
“Improving Access to Voting Act,” 2013 Md. Laws Ch. 157, which,

among other things, explicitly required the Board to certify any

online ballot marking tool prior to use by voters. See id.

(codified at Elec. Law § 9-308.1). Certification requires a

supermajority: at least four of the five members of the Board

must vote in favor of certification. See Elec. Law § 2-102(c).

The Board continued to make improvements to the version of

the tool that had been used in the 2012 election cycle. In

particular, the Board implemented certain changes to make the

tool more accessible to voters with disabilities. Additionally,

in accordance with the 2013 Improving Access to Voting Act, the

Board hired an independent consultant, Unatek Inc. (“Unatek”),

to perform security testing on the tool. Unatek produced a

report in December 2013 concluding that use of the tool was

secure.

In February 2014, the Board met and discussed the online

ballot marking tool. The Board reviewed the December 2013

Unatek report and interviewed the report’s author. Some Board

members continued to express concerns about the security of the

tool, and the Board did not hold a certification vote.

The Board subsequently hired a second independent

consultant, Mainstay Enterprises, Inc. (“Mainstay”), to audit

the Unatek security report. The Mainstay audit concluded that

Unatek’s security assessment had followed industry best

9
practices. The Board also received and reviewed public comments

and had Board staff obtain information on the use of similar

ballot marking tools in other states.

The certification issue was again discussed at the Board’s

April 2014 meeting. At the meeting, Mainstay briefed the Board

on the results of its audit. Some Board members continued to

express concerns about certification and the Board did not take

a certification vote.

D.

On May 19, 2014, plaintiffs sued Linda Lamone, Maryland’s

State Administrator of Elections, and the five Board members,

all in their official capacities. At the heart of plaintiffs’

suit are claims that Maryland’s absentee voting process violates

the ADA and the Rehabilitation Act. Plaintiffs sought both a

declaratory judgment to that effect as well as an injunction

requiring state election officials to make the online ballot

marking tool available for use starting with the 2014 general

election. 2 The district court subsequently scheduled a bench

trial to begin on August 13, 2014. The schedule would provide

2 Plaintiffs also sought a preliminary injunction requiring
election officials to make the tool available for the June 24,
2014 primary election. The district court held a hearing on
June 11, 2014, and ultimately denied plaintiffs’ request.

10
defendants with sufficient time to implement the tool before the

2014 general election in the event that plaintiffs prevailed.

While the suit was pending, the Board held a specially-

scheduled meeting on July 10, 2014, with one Board member

absent. The four Board members in attendance voted 3 to 1 to

certify the online ballot marking tool. The vote did not

satisfy the statutory supermajority requirement and the tool was

not certified.

The district court held a three-day bench trial beginning

on August 13, 2014. 3 The district court heard testimony on: the

3 On August 1, 2014, less than two weeks before trial,
several individuals and entities who were similarly situated to
plaintiffs here filed a motion to intervene in the case. The
putative intervenors asserted similar ADA and Rehabilitation Act
claims, along with additional claims against Maryland state
officials under 18 U.S.C. § 1983 for various alleged
constitutional violations. The putative intervenors argued that
their rights had been violated in ways substantially similar to
plaintiffs, but sought an almost diametrically opposed remedy—an
injunction barring certification of the online ballot marking
tool. Very broadly, the putative intervenors appeared to be
concerned that the tool plaintiffs sought to require Maryland to
use was not sufficiently accessible to disabled voters.
The district court held a conference with all parties and
the putative intervenors on August 8, 2014. With the agreement
of the parties, the district court held the motion sub curia and
permitted the putative intervenors to participate in the trial.
In its memorandum opinion in this case, the district court
ultimately granted the motion to the extent of the intervenors’
participation up to and through trial, and considered the
intervenors’ evidence and legal arguments in reaching its
decision; the district court denied the motion to the extent the
intervenors sought to assert independent claims against the
defendants. It does not appear that either the parties or the
(Continued)
11
difficulties disabled voters have experienced while voting; the

Board’s development of the online ballot marking tool and the

Board’s deliberation over certification; the accessibility of

the tool for disabled voters; and the security risks posed by

the tool.

The district court found that “the evidence demonstrated

specific difficulties that some disabled voters have experienced

while voting,” J.A. 1043, and that “under the current absentee

ballot voting program, individuals with disabilities such as

those of the Plaintiffs cannot vote privately and

independently.” J.A. 1044. The district court credited the

results of a University of Baltimore usability study that

concluded the tool was “highly accessible for disabled voters,”

J.A. 1047-48, though the district court acknowledged that two

individuals testified that they had difficulty accessing and

using the tool during a public demonstration period. J.A. 1048.

The district court found the tool “compatible with reasonably

up-to-date computer and screen access software,” “designed in

accordance with the Web Content Accessibility Guidelines,” and

“compatible with refreshable Braille displays.” Id. The

district court did find that there were still “challenges to

intervenors have appealed any part of the district court’s
disposition on this issue, and we see no reason to disturb it.

12
private and independent voting by absentee ballot for disabled

voters even when using the tool,” including that “disabled

voters may need assistance in signing their ballots before

submission.” Id. “However, the testimony at trial also

indicated that, because the signature sheet prints on a separate

page, the risk of disclosure of a disabled voter’s selections

was minimalized and, in any event, was significantly less than

that afforded under the current paper absentee ballot

system . . . .” J.A. 1048-49.

With respect to the security risks posed by the online

ballot marking tool, the district court credited expert

testimony that the tool “exhibited software independence,

meaning a change to the voting software used for an election

cannot cause an undetectable change to the outcome of an

election” and that “there were no additional risks that did not

exist in other methods already available to Maryland voters.”

J.A. 1049. The district court found that the tool was “not

without some security risks” including that “malware could

enable [a] third party to observe a voter’s selections” and that

“a voter’s selections could be captured if a third party

infiltrated the Board’s server during the time a voter’s

selections and/or the printable ballot were being transmitted.”

J.A. 1049-50. Additionally, “[t]here was no evidence at trial

that the online ballot marking tool had been tested against

13
intentional attempts to infiltrate or hack into the Board’s

server or the tool.” J.A. 1050.

The district court further found that “it is clear that

most voters may mark their absentee ballots without assistance”

and that plaintiffs “should be afforded the same opportunity,

but the State’s current voting program does not allow for it.”

J.A. 1055. Based on the facts found at trial, the district

court concluded that plaintiffs had established that they had

been denied meaningful access to absentee voting in Maryland in

violation of Title II of the ADA and Section 504 of the

Rehabilitation Act. The district court entered a declaratory

judgment for plaintiffs to this effect. The district court

further concluded that plaintiffs’ proposed remedy, access to

the online ballot marking tool, was a reasonable modification

that did not fundamentally alter Maryland’s voting program.

Consistent with these conclusions, the district court entered a

permanent injunction prohibiting defendants from violating

plaintiffs’ rights under the ADA and the Rehabilitation Act and

requiring defendants to make the online ballot marking tool

available to plaintiffs for the 2014 general election. This

appeal followed.

14
 II.

We review judgments resulting from a bench trial under a

mixed standard of review: factual findings may be reversed only

if clearly erroneous, while conclusions of law are examined de

novo. Plasterers’ Local Union No. 96 Pension Plan v. Pepper,

663 F.3d 210, 215 (4th Cir. 2011). We review the grant of a

permanent injunction for abuse of discretion. Legend Night Club

v. Miller, 637 F.3d 291, 297 (4th Cir. 2011).

Defendants’ appeal principally focuses on the district

court’s three core legal conclusions: (1) that plaintiffs have

been denied meaningful access to absentee voting in violation of

the ADA and the Rehabilitation Act; (2) that the online ballot

marking tool constitutes a reasonable remedial modification; and

(3) that requiring defendants to allow use of the tool does not

fundamentally alter Maryland’s voting program. We address each

of these issues in turn.

III.

Title II of the ADA provides that “no qualified individual

with a disability shall, by reason of such disability, be

excluded from participation in or be denied the benefits of the

services, programs, or activities of a public entity, or be

subjected to discrimination by any such entity.” 42 U.S.C.

15
§ 12132. 4 To make out a violation of Title II, plaintiffs must

show: (1) they have a disability; (2) they are otherwise

qualified to receive the benefits of a public service, program,

or activity; and (3) they were denied the benefits of such

service, program, or activity, or otherwise discriminated

against, on the basis of their disability. Constantine v.

Rectors & Visitors of George Mason Univ., 411 F.3d 474, 498 (4th

Cir. 2005).

Only the third of these elements—whether plaintiffs were

denied the benefits of a public service, program, or activity on

the basis of their disability—is at issue here. 5 Much of the

4Section 504 of the Rehabilitation Act similarly provides
that “[n]o otherwise qualified individual with a disability in
the United States . . . shall, solely by reason of her or his
disability, be excluded from the participation in, be denied the
benefits of, or be subjected to discrimination under any program
or activity receiving Federal financial assistance.” 29 U.S.C.
§ 794. “Claims under the ADA’s Title II and the Rehabilitation
Act can be combined for analytical purposes because the analysis
is ‘substantially the same.’” Seremeth v. Bd. of Cty. Comm'rs
Frederick Cty., 673 F.3d 333, 336 n.1 (4th Cir. 2012) (quoting
Doe v. Univ. of Md. Med. Sys. Corp., 50 F.3d 1261, 1265 n.9 (4th
Cir. 1995)). Because under the circumstances presented in this
case plaintiffs’ ADA and Rehabilitation Act claims rise and fall
together, for simplicity our opinion combines them and
principally analyzes the ADA claim. Cf., e.g., A Helping Hand,
LLC v. Baltimore Cty., Md., 515 F.3d 356, 362 (4th Cir. 2008)
(“Congress has directed courts to construe the ADA to grant at
least as much protection as the Rehabilitation Act and its
implementing regulations.”).
5 Title II allows plaintiffs to pursue three distinct
grounds for relief: (1) intentional discrimination or disparate
treatment; (2) disparate impact; and (3) failure to make
reasonable accommodations. A Helping Hand, LLC, 515 F.3d at
(Continued)
16
dispute revolves around the proper way to define the scope of

the relevant public service or program at issue. Plaintiffs

argue that the appropriate analytic scope is Maryland’s absentee

voting program. Defendants urge analysis of Maryland’s voting

program in its entirety, encompassing the various voting

alternatives—including in-person voting—available to Maryland

voters. Defendants argue that even if absentee voting is not

fully accessible, the full accessibility of Maryland’s in-person

polling places provides disabled voters with meaningful access

to voting. As explained below, we conclude that defendants’

proposed focus is overbroad and would undermine the purpose of

the ADA and its implementing regulations.

A.

Defendants’ argument for holistic consideration of

Maryland’s voting program is in some immediate tension with the

362. Defendants somewhat mischaracterize plaintiffs’ claims as
advancing a disparate impact theory of discrimination. See,
e.g., Br. of Appellants 38. While some sort of disparity will
necessarily be present in cases of discrimination, that does not
mean that all discrimination cases are legally evaluated as
“disparate impact” cases; we do not interpret plaintiffs’
arguments as advancing a legal disparate impact theory (and the
district court did not evaluate them as such). We understand
plaintiffs to be pursuing their claims on the theory that
defendants have failed to make reasonable accommodations that
would afford disabled individuals meaningful access to
Maryland’s absentee voting program.

17
text of the ADA. Title II states that a disabled individual may

not be “excluded from participation in or be denied the benefits

of the services, programs, or activities of a public entity, or

be subjected to discrimination by any such entity.” 42 U.S.C.

§ 12132. Defendants’ proposed focus on voting in its entirety

effectively reads out much of this language, suggesting that

Title II prohibits only complete exclusion from participation in

broadly-defined public programs. However, Title II is

disjunctive. By its own terms it is not limited only to public

“programs”; it applies to “services, programs, or activities.”

Id. (emphasis added). Title II does not only prohibit

“exclusion from participation” in a public program; it also

separately prohibits “den[ying] the benefits” of that program.

Id. 6 And in addition to those prohibitions, Title II separately

generally prohibits “discrimination by any [public] entity.”

Id. Although the bare language of Title II does not

definitively resolve the question of appropriate scope, it does

6
The United States, as amicus, suggests that defendants
would still be in violation of Title II even were we to conclude
that Maryland’s entire voting program was “the” program subject
to Title II’s requirements. We acknowledge that it is possible
to view the ability to vote from the comfort of one’s home as
one of the “benefits” of Maryland’s overall voting program, the
denial of which benefit on the basis of disability might support
a Title II claim. However, given our conclusion below that we
must evaluate Maryland’s absentee voting program directly, we
need not address the United States’s contention.

18
suggest to us that some granularity in analytic focus is

necessary.

The Supreme Court has cautioned against defining the scope

of a public benefit so as to avoid questions of discriminatory

effects. In Alexander v. Choate, 469 U.S. 287, 301 (1985), a

Rehabilitation Act case, a unanimous Court counseled that in

assessing whether a disabled individual had been provided with

meaningful access to a benefit, “[t]he benefit itself, of

course, cannot be defined in a way that effectively denies

otherwise qualified handicapped individuals the meaningful

access to which they are entitled.” See also id. at n.21

(citing with approval the government’s statement that

“[a]ntidiscrimination legislation can obviously be emptied of

meaning if every discriminatory policy is ‘collapsed’ into one’s

definition of what is the relevant benefit”). The logic of

Alexander further suggests that we should proceed cautiously to

avoid defining a public program so generally that we overlook

real difficulties in accessing government services.

Also significant for our analysis of the proper scope of

review here is the fact that Maryland allows any voter to vote

by absentee ballot. Elec. Law §§ 9-301, 9-304. Absentee

ballots are not provided only to a limited set of voters with a

demonstrated need to vote absentee; they are instead provided to

the entire Maryland electorate at the option of each individual

19
voter. On the whole, then, we think it is far more natural to

view absentee voting—rather than the entire voting program—as

the appropriate object of scrutiny for compliance with the ADA

and the Rehabilitation Act.

Defendants’ remaining arguments against this

straightforward conclusion are unpersuasive. Defendants cite an

ADA-implementing regulation, 28 C.F.R. § 35.150(a), which they

assert requires a reviewing court to view Maryland’s voting

program “in its entirety.” However, the cited regulation

expressly pertains to “existing facilities.” See id. On its

face, this regulation simply provides that a public entity does

not have to make each of its facilities accessible as long as

individuals with disabilities have access to that entity’s

offered public services. This regulation is targeted

principally at physical accessibility and allows a public entity

to provide accessibility alternatives that would not require

large-scale architectural modifications of existing facilities.

Accord Constantine, 411 F.3d at 489 (discussing 28 C.F.R.

§ 35.150(a) and explaining that “structural changes in existing

physical facilities” are “probably the most expensive

enterprise” in providing accessibility).

Other ADA-implementing regulations, however, are applicable

here and conflict with defendants’ proposed focus on the

entirety of Maryland’s voting program. As one example,

20
28 C.F.R. § 35.130 (“General prohibitions against

discrimination”) directly implements the general anti-

discrimination mandate of Title II. Subsection (b)(7) of the

regulation requires public entities to make certain reasonable

modifications in “policies, practices, or procedures when the

modifications are necessary to avoid discrimination on the basis

of disability”; this regulation clearly contemplates a focus on

accessibility at a more granular level than entire government

programs—the level of “policies, practices, and procedures.”

Id. 7

Defendants also cite to three district court decisions from

other circuits that they argue stand for the proposition that

all aspects of a state’s voting program must be viewed together

when analyzing an ADA claim. Br. of Appellants 55-56. It is

7
As another example, 28 C.F.R. § 35.160 states that “[a]
public entity shall take appropriate steps to ensure that
communications with [disabled persons] are as effective as
communications with others” and “shall furnish appropriate
auxiliary aids and services where necessary to afford
individuals with disabilities . . . an equal opportunity to
participate in, and enjoy the benefits of, a service, program or
activity of a public entity.” Id. § (a)(1), (b)(1). The
requirement to provide “auxiliary aids and services” again
suggests to us that accessibility cannot be adequately assessed
at the highest level of program abstraction. The United States
argues that this particular regulation alone is a sufficient
basis to affirm the decision here. Br. for United States as
Amicus Curiae 17-19. We think that the ADA itself and the
general anti-discrimination regulation discussed above provide
the most direct resolution in this case. We therefore need not
consider whether there might be other independent bases that
support an ADA or Rehabilitation Act claim on the facts here.

21
not clear to us that the cited cases in fact support defendants’

proposition; in any event, we find them unpersuasive. Further,

later decisions in some of those districts (and decisions by the

courts of appeals sitting above them), flatly reject the very

argument defendants advance here. See, e.g., United Spinal

Ass’n v. Bd. of Elections in New York, 882 F. Supp. 2d 615, 623-

24 (S.D.N.Y. 2012) (“It is abundantly clear that Defendants are

obligated to provide a level of access to their voting program

beyond the simple assurance that voters with disabilities are

able to cast a ballot in some way, shape, or form.”); Disabled

in Action v. Bd. of Elections in New York, 752 F.3d 189, 198-99

(2d Cir. 2014) (“[T]o assume the benefit is . . . merely the

opportunity to vote at some time and in some way [] would render

meaningless the mandate that public entities may not afford

persons with disabilities services that are not equal to that

afforded others.” (quotation omitted)).

B.

Having determined that Maryland’s absentee voting program

is the appropriate subject of our ADA analysis, we must

determine whether absentee voting is accessible to disabled

individuals as required by statute and implementing regulations.

As the Supreme Court has explained:

22
 Congress enacted the ADA in 1990 to remedy widespread
discrimination against disabled individuals. In
studying the need for such legislation, Congress found
that “historically, society has tended to isolate and
segregate individuals with disabilities, and, despite
some improvements, such forms of discrimination
against individuals with disabilities continue to be a
serious and pervasive social problem.”

PGA Tour, Inc. v. Martin, 532 U.S. 661, 674-75 (2001) (quoting

42 U.S.C. § 12101(a)(2)). Congress explicitly found that

discrimination was not limited to “outright intentional

exclusion,” but was also to be found in “the ‘failure to make

modifications to existing facilities and practices.’” Id. at

675 (quoting 42 U.S.C. § 12101(a)(5)). After thorough

investigation and debate, Congress concluded that there was a

“compelling need” for a “clear and comprehensive national

mandate” to both eliminate discrimination and to integrate

disabled individuals into the social mainstream of American

life. Id. (internal citations omitted). “In the ADA, Congress

provided that broad mandate.” Id.

Congress has explicitly directed the Attorney General to

promulgate regulations implementing Title II’s

non-discrimination mandate. 42 U.S.C. § 12134. Pursuant to

this directive, the Department of Justice (“DoJ”) promulgated a

number of regulations, including 28 C.F.R. § 35.130. That

regulation provides:

A public entity, in providing any aid, benefit, or
service, may not . . . [a]fford a qualified individual

23
 with a disability an opportunity to participate in or
benefit from the aid, benefit, or service that is not
equal to that afforded others . . . [or] [p]rovide a
qualified individual with a disability with an aid,
benefit, or service that is not as effective in
affording equal opportunity to obtain the same result.

28 C.F.R. § 35.130(b)(1)(ii)-(iii). 8 We have recognized that

“[t]he department’s regulations are the agency’s interpretation

of the statute, and they are therefore given ‘controlling

weight’ unless they conflict with other departmental regulations

or the ADA itself.” Seremeth, 673 F.3d at 338 (citing Stinson

v. United States, 508 U.S. 36 (1993), and Chevron, U.S.A., Inc.

v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 844 (1984)).

We have little trouble concluding from the record before us

that Maryland’s absentee voting program does not provide

disabled individuals an “opportunity to participate . . . equal

to that afforded others.” See 28 C.F.R. § 35.130(b)(1)(ii).

The district court found that “it is clear that most voters may

mark their absentee ballots without assistance.” J.A. 1055.

This finding is not clearly erroneous. The district court

further found that Maryland’s current absentee voting program

does not allow disabled individuals such as plaintiffs to mark

their ballots without assistance. Id. This finding is also not

clearly erroneous. This sharp disparity makes obvious that

8The Rehabilitation Act’s regulations impose similar
requirements. See, e.g., 45 C.F.R. § 84.4(b)(1)(ii)-(iii).

24
defendants have provided “an aid, benefit, or service [to

disabled individuals] that is not as effective in affording

equal opportunity to obtain the same result, to gain the same

benefit, or to reach the same level of achievement as that

provided to others.” See 28 C.F.R. § 35.130(b)(1)(iii). The

ADA requires more.

Defendants do not seriously challenge the district court’s

factual findings concerning plaintiffs’ current inability to

vote without assistance. Instead, defendants argue that

plaintiffs have not been denied meaningful access to absentee

voting because disabled individuals such as plaintiffs have no

right to vote without assistance. See Br. of Appellants 59-60.

This argument simply misapprehends the nature of plaintiffs’

claims.

This case does not turn on whether there is a standalone

right to vote privately and independently without assistance.

Plaintiffs’ argument is that defendants have provided such a

benefit to non-disabled voters while denying that same benefit

to plaintiffs on the basis of their disability. This is

precisely the sort of harm the ADA seeks to prevent. Cf., e.g.,

Disabled in Action, 752 F.3d at 199-200 (“Although [plaintiffs]

were ultimately able to cast their vote with the fortuitous

assistance of others, the purpose of the Rehabilitation Act is

‘to empower individuals with disabilities to maximize

25
employment, economic self-sufficiency, independence, and

inclusion and integration into society’ . . . . The right to

vote should not be contingent on the happenstance that others

are available to help.” (emphasis by 2d Circuit)(quoting

29 U.S.C. § 701(b)(1))); Cal. Council of the Blind v. Cty. of

Alameda, 985 F. Supp. 2d 1229, 1239 (N.D. Cal. 2013)

(“[R]equiring blind and visually impaired individuals to vote

with the assistance of a third party, if they are to vote at

all, at best provides these individuals with an inferior voting

experience ‘not equal to that afforded others.’” (quoting

28 C.F.R. § 35.130(b)(1)(ii))).

Voting is a quintessential public activity. In enacting

the ADA, Congress explicitly found that “‘individuals with

disabilities . . . have been . . . relegated to a position of

political powerlessness in our society, based on characteristics

that are beyond the control of such individuals.’” Tennessee v.

Lane, 541 U.S. 509, 516 (2004) (quoting 42 U.S.C. §

12101(a)(7)). Ensuring that disabled individuals are afforded

an opportunity to participate in voting that is equal to that

afforded others, 28 C.F.R. § 35.130, helps ensure that those

individuals are never relegated to a position of political

powerlessness. We affirm the district court’s conclusion that

by effectively requiring disabled individuals to rely on the

assistance of others to vote absentee, defendants have not

26
provided plaintiffs with meaningful access to Maryland’s

absentee voting program.

IV.

Determining that plaintiffs have been denied meaningful

access to absentee voting does not end our analysis. Not all

public services, programs, or activities can be made

meaningfully accessible to all citizens, or at least they cannot

be made so without a prohibitive cost or unreasonable effort on

the part of the public entity. For this reason, to prevail on

their ADA claim, plaintiffs must propose a reasonable

modification to the challenged public program that will allow

them the meaningful access they seek. See, e.g., Halpern v.

Wake Forest Univ. Health Scis., 669 F.3d 454, 464 (4th Cir.

2012) (noting that federal law mandates that federal grantees

and public accommodations make “reasonable” modifications to

accommodate persons with disabilities). 9

DoJ regulations implementing the ADA explain that “[a]

public entity shall make reasonable modifications in policies,

practices, or procedures when the modifications are necessary to

9Halpern was a Title III and Rehabilitation Act case. We
have noted that in general the different language of Titles II,
III, and the Rehabilitation Act should be construed together to
the extent possible. Halpern, 669 F.3d at 461-62 (collecting
cases).

27
avoid discrimination on the basis of disability.” 28 C.F.R.

§ 35.130(b)(7). 10 A modification is reasonable if it is

“reasonable on its face” or used “ordinarily or in the run of

cases” and will not cause “undue hardship.” Halpern, 669 F.3d

at 464 (citing U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 401-

02 (2002)); cf. Henrietta D. v. Bloomberg, 331 F.3d 261, 280

(2d. Cir 2003) (stating that the burden of establishing the

reasonableness of an accommodation is “‘not a heavy one’” and

that it “is enough for the plaintiff to suggest the existence of

a plausible accommodation, the costs of which, facially, do not

clearly exceed its benefits” (quoting Borkowski v. Valley Cent.

Sch. Dist., 63 F.3d 131, 138 (2d Cir. 1995))). Determination of

the reasonableness of a proposed modification is generally fact-

specific. Halpern, 669 F.3d at 464.

The district court here found that plaintiffs’ proposed

modification—the online ballot marking tool—was both reasonably

secure and reasonably accessible to disabled voters. Reviewing

the record as a whole, these findings do not appear clearly

erroneous and we see no need to disturb them. Further, although

not determinative by itself, the fact that a version of the tool

10
The regulations, however, do not require implementation
of even reasonable modifications where the “public entity can
demonstrate that making the modifications would fundamentally
alter the nature of the service, program, or activity.”
28 C.F.R. § 35.130(b)(7). We address defendants’ “fundamental
alteration” defense below.

28
was voluntarily implemented by defendants in the 2012 elections—

“without any apparent incident,” J.A. 1057—speaks to the

reasonableness of using the tool. Additionally, because the

tool has already been developed, there does not appear to be any

substantial cost or implementation burden that would need to be

borne by Maryland to make the tool available for use. On the

facts before us, we conclude that plaintiffs’ proposed use of

the online ballot marking tool is a reasonable modification to

Maryland’s absentee voting policies and procedures.

V.

Defendants correctly argue that even a reasonable

modification to Maryland’s absentee voting program need not be

made if that modification would “fundamentally alter” the

program. See 28 C.F.R. § 35.130(b)(7); Halpern, 669 F.3d at

464. Defendants bear the burden of proving that the requested

modification would be a fundamental alteration to the program.

See 28 C.F.R. § 35.130(b)(7). After considering defendants’

arguments and reviewing the record as a whole, we conclude that

they have not met this burden.

Defendants’ principal argument is that certification of

voting systems, including certification of the online ballot

marking tool under Election Law Section 9-308.1, is fundamental

to Maryland’s voting program. They argue from this that

29
requiring them to make the online ballot marking tool available

for plaintiffs’ use, where that tool has not yet received the

statutorily-required supermajority vote, works a fundamental

alteration to Maryland’s voting program. Therefore, defendants

argue, the district court abused its discretion in enjoining

them to make the tool available to plaintiffs. We disagree. 11

As an initial matter, the strong form of defendants’

argument—that the mere fact of a state statutory requirement

insulates public entities from making otherwise reasonable

modifications to prevent disability discrimination—cannot be

correct. The Constitution’s Supremacy Clause establishes that

valid federal legislation can pre-empt state laws. Oneok, Inc.

v. Learject, Inc., 135 S. Ct. 1591, 1595 (2015) (citing U.S.

Const. Art. VI, cl. 2). The Supreme Court has held that the

ADA’s Title II, at least in certain circumstances, represents a

valid exercise of 14th Amendment powers, Lane, 541 U.S. at 533-

34, and as such it trumps state regulations that conflict with

its requirements. As the Sixth Circuit has put it, “[r]equiring

public entities to make changes to rules, policies, practices,

or services is exactly what the ADA does.” Jones v. City of

11 Given our conclusion that use of the online ballot
marking tool does not fundamentally alter Maryland’s program, we
discern no abuse of discretion in the district court’s decision
to issue the injunction as the other factors to be considered
easily weigh in favor of granting injunctive relief. Cf. Legend
Night Club, 637 F.3d at 302-03.

30
Monroe, MI, 341 F.3d 474, 487 (6th Cir. 2003) (citing Oconomowoc

Residential Programs, Inc. v. City of Milwaukee, 300 F.3d 775,

782-83 (7th Cir. 2002)), abrogated on other grounds by Anderson

v. City of Blue Ash, 798 F.3d 338 (6th Cir. 2015); accord Mary

Jo C. v. New York State and Local Ret. Sys., 707 F.3d 144, 163

(2d Cir. 2013) (“If all state laws were insulated from Title

II’s reasonable modification requirement solely because they

were state laws . . . the ADA would be powerless to work any

reasonable modification in any requirement imposed by state law,

no matter how trivial the requirement and no matter how minimal

the costs of doing so.”).

However, we also think that the converse proposition cannot

be correct either. Certain requirements of state law could in

fact be fundamental to a public program in a way that might

resist reasonable modifications otherwise necessary to bring

that program into compliance with the ADA. Defendants here urge

that Maryland’s statutory certification requirement is just such

an example: certification, they argue, goes to the very heart

of the voting program by ensuring the integrity of the voting

process as a whole. Public confidence in elections is

undoubtedly an important governmental concern. But on the

record before us defendants simply have not established their

premise, that is, that use of the online ballot marking tool

degrades the integrity of Maryland’s voting processes.

31
 Put another way, defendants are merging Maryland’s

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.

See, e.g., Halpern, 669 F.3d at 464-68; cf. Jones, 341 F.3d at

480 (“In cases involving waiver of applicable rules and

regulations, the overall 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.” (quotation omitted)). The relevant

inquiry here is not whether certification qua certification is

fundamental to Maryland’s voting program, but whether use of the

tool without certification would be so at odds with the purpose

of certification that such use would be unreasonable. 12

Here, the district court found, after a three-day bench

trial, that the tool is reasonably secure, safeguards disabled

voters’ privacy, and (in earlier versions at least) has been

12The problem with conflating procedure and substance here
can be illustrated by analogy to the archetypal physical
accessibility modifications often associated with the ADA. It
would be difficult for a government entity to resist
installation of, for example, wheelchair ramps for a new
courthouse, solely by enacting a law requiring that ramps be
certified and then declining to certify any ramps.

32
used in actual elections without apparent incident. 13 We do not

think these findings are clearly erroneous and defendants have

not provided any substantial reasons that they should be called

into question. Cf., e.g., Pepper, 663 F.3d at 215 (“[I]f the

district court's account of the evidence is plausible in light

of the record in its entirety, we will not reverse the district

court's finding simply because we have become convinced that we

would have decided the question of fact differently.” (quoting

TFWS, Inc. v. Franchot, 572 F.3d 186, 196 (4th Cir. 2009))). On

the record as a whole, we do not conclude that use of the online

ballot marking tool is so at odds with the purposes of

certification that its use would be unreasonable. We agree with

the district court that defendants have not met their burden to

show that plaintiffs’ proposed modification—use of the online

ballot marking tool—would fundamentally alter Maryland’s voting

program.

VI.

We recognize that some of the standard analytic language

used in evaluating ADA claims—“failure to make reasonable

accommodations”; “denial of meaningful access”—carries with it

13
Nothing in the post-trial record indicates any problems
with the use of the tool by plaintiffs in the 2014 general
election subsequent to the district court’s decision.

33
certain negative connotations. We would be remiss in not

highlighting that the record is devoid of any evidence that the

defendants acted with discriminatory animus in implementing

Maryland’s absentee voting program. Indeed, we recognize that

Maryland’s decision to provide “no excuse” absentee voting to

all its citizens provides a benefit that is far from universal

across the United States.

However, the ADA and the Rehabilitation Act do more than

simply provide a remedy for intentional discrimination. They

reflect broad legislative consensus that making the promises of

the Constitution a reality for individuals with disabilities may

require even well-intentioned public entities to make certain

reasonable accommodations. Our conclusions here are not driven

by concern that defendants are manipulating the election

apparatus intentionally to discriminate against individuals with

disabilities; our conclusions simply flow from the basic promise

of equality in public services that animates the ADA.

For the foregoing reasons, we affirm.

AFFIRMED

34