Johnson v. Callanen

610 F.Supp.3d 907

Larry JOHNSON, Wendy Walker, Amelia Pellicciotti, National Federation of the Blind of Texas, The Coalition of Texans With Disabilities, Plaintiffs,

v.Jacquelyn F. CALLANEN, in her Official Capacity as the Bexar County Elections Administrator, Bexar County, Texas, Defendants.

SA-22-CV-00409-XR

United States District Court, W.D. Texas, San Antonio Division.

Signed July 7, 2022

Eve Lynne Hill, Pro Hac Vice, Lauren J. Kelleher, Pro Hac Vice, Brown, Goldstein & Levy, LLP, Baltimore, MD, Rachael E. Thompson, William M. Logan, Michael Terrell Murphy, Winston & Strawn LLP, Houston, TX, Lia Sifuentes Davis, Disability Rights Texas, Austin, TX, for Plaintiffs.

Susan A. Bowen, Bexar County District Attorney's Office, Civil Section, San Antonio, TX, for Defendants.

ORDER

XAVIER RODRIGUEZ, UNITED STATES DISTRICT JUDGE

On this date, the Court considered Plaintiffs' Motion for Preliminary Injunction (ECF No. 3) and Plaintiffs' Motion for Leave to File Supplemental Briefing (ECF No. 21). After careful consideration, the Court issues the following order.

BACKGROUND

Texas conducts elections in its 254 counties, including Bexar County, pursuant to the Texas Election Code (the "Election Code"). Under the Election Code, an individual is eligible to vote in Texas if they are a "qualified voter." TEX. ELEC. CODE § 11.001(a)(1). The Election Code defines a qualified voter as a person who is eighteen years of age or older, a United States citizen, a Texas resident, and a registered voter. Id. § 11.002(a). To be qualified, a voter also cannot have been mentally incapacitated or convicted of a felony unless they have a fully discharged sentence or have been pardoned. Id. The Election Code further establishes that a qualified voter has the right to "vote in secret and free from intimidation[.]" Id. § 62.0115(b)(2). It also permits certain eligible voters to vote by mail, including those who have a physical condition that prevents them from appearing at a polling place on an election day without a likelihood of needing personal assistance or of injuring their health. Id. § 82.002(a)(1).

To vote by mail in Bexar County, an eligible voter must complete and submit a paper ballot. ECF No. 3 at 8.¹ Upon receiving a paper ballot by mail, the eligible voter must be able to read the "paper ballot in standard print, physically mark the ballot choices, and fill in and sign the statement printed on the back of the envelope." Id. at 9.

Pursuant to federal law, Bexar County offers an electronic alternative to vote by mail for its active military member and overseas eligible voters. ECF No. 3-1, Ex. A ("Callanen Decl.") ¶¶ 3–4.² To avail themselves of this alternative, an active military or overseas individual must first complete an application to vote by mail called the Federal Post Card Application ("FPCA"), a form created by federal law to permit active military member and overseas voters to vote by mail.³ The active military or overseas individual must indicate in their FPCA whether they would like to receive their ballot and voting materials by mail, common or contract carrier, or email.⁴ They must also sign and date the FPCA before returning it to the Bexar County Elections Department (the "Elections Department") by mail, common or contract carrier, in-person delivery, fax, or email.⁵ If the Elections Department determines that the active military or overseas individual is eligible to vote by mail, it sends the ballot as requested in their FPCA.⁶ The active military member or overseas eligible voter must then return their ballot by mail, or common or contract courier.⁷

On April 27, 2022, three visually impaired individuals and two non-profit organizations comprising visually impaired and otherwise disabled Texans—all of whom are eligible and want to vote by mail in secret and free from intimidation—filed this action against Defendant Jacquelyn F. Callanen, in her official capacity as the Bexar County Elections Administrator, and Defendant Bexar County, Texas (together, "Defendants"). ECF No. 1.

The three individual plaintiffs are Larry Johnson, Wendy Walker, and Amelia Pellicciotti, each of whom is legally blind, resides in San Antonio, Texas, and is registered to vote in Bexar County. ECF No. 3-1, Ex. B ("Johnson Decl.") ¶¶ 1–2, 7; ECF No. 3-1, Ex. C ("Walker Decl.") ¶¶ 1–2, 5; ECF No. 3-1, Ex. D ("Pellicciotti Decl.") ¶¶ 1–2, 5.

The two organizational plaintiffs are the National Federation of the Blind of Texas ("NFB-TX") and the Coalition of Texans with Disabilities ("CTD"). ECF No. 1 ¶¶ 18–19. NFB-TX "has approximately 500 members in Texas, including many blind and print-disabled members who are registered to vote in Bexar County, eligible to vote by mail, and who wish to vote in upcoming elections by independently casting a private mail-in ballot." ECF No. 3-1, Ex. E ("Crosby Decl.") ¶ 4. CTD "has more than 3,500 individual members in Texas and 208 affiliate organizational members, including many blind and print-disabled members who are registered to vote in Bexar County, are eligible to vote by mail, and wish to vote in upcoming elections by independently casting a private mail-in ballot." ECF No. 3-1, Ex. F ("Bearden Decl.") ¶ 3. Ms. Walker is the President of NFB-TX's San Antonio Chapter. Walker Decl. ¶ 3. Ms. Pellicciotti is a member of NFB-TX. Pellicciotti Decl. ¶ 3. Mr. Johnson is a founder of CTD. Johnson Decl. ¶ 3.

Plaintiffs allege that they and their members are unable to vote by mail in secret and free from intimidation. ECF No. 1 ¶¶ 1, 4, 9, 50, 52–55. They claim that, since Defendants provide mail-in ballots to eligible voters in paper form only, voting by mail in Bexar County is "inaccessible to blind or low-vision voters and other voters with disabilities that prevent them from marking a paper ballot." Id. ¶ 1. Mr. Johnson, Ms. Walker, and Ms. Pellicciotti, for instance, "cannot read the printed text that appears on the paper mail-in ballot" on their own. Id. ¶ 53. "Individuals who cannot use their hands or arms and who are unable to fill out a paper ballot by reason of disability" also cannot complete and submit a paper mail-in ballot on their own.⁸ Id. ¶ 54. Although they might be able to vote in person, Plaintiffs allege that they "are entitled to equal access as individuals without disabilities to a mail-in ballot to vote privately and independently." Id. ¶ 56. They have therefore filed suit against Ms. Callanen and Bexar County under Title II of the American with Disabilities Act ("ADA") and § 504 of the Rehabilitation Act.⁹ Id. ¶¶ 85–129.

Defendants were aware of the difficulties that Plaintiffs and their members have experienced when attempting to vote by mail privately and independently. On June 25, 2020, Mr. Johnson called Ms. Callanen and informed her that he wanted to vote by mail, but that he needed an electronic system to do so because he is blind and, as a result, cannot complete the paper mail-in ballot on his own. Johnson Decl. ¶ 15; see also ECF No. 1 ¶ 69. In response, Ms. Callanen told Mr. Johnson that the electronic system Bexar County provides for its active military member and overseas eligible voters might be a suitable alternative. Johnson Decl. ¶ 15. Ms. Callanen sent Mr. Johnson a copy of an electronic ballot, which Mr. Johnson found to be accessible. Id. ¶ 16.

On January 30, 2021, Mr. Johnson mailed a letter to Ms. Callanen, informing her that he wished to vote by mail in the upcoming local election. Id. ¶ 17; see also ECF No. 1 ¶ 72. In his letter, Mr. Johnson once again explained that he needed an accessible electronic ballot because of his visual impairment. ECF No. 1 ¶ 72. Specifically, he "asked for an accommodation to fill out the ballot in the same manner as voters overseas." Id. On March 5, 2021, Ms. Callanen responded to Mr. Johnson's letter, stating that she would submit his request to the Texas Secretary of State (the "Secretary") and provide a response within a week. Id. ¶ 73. Ms. Callanen, however, did not respond within the indicated timeframe. Id. ¶ 74.

Thus, on March 15, 2021, Mr. Johnson sent Ms. Callanen an email, following up on his request. Id. ¶ 75. Ms. Callanen again did not respond to his email, so Mr. Johnson sent her a second email on March 23, 2021. Id. This time, Ms. Callanen responded and stated that she had not received a response from the Secretary. Id. ; see also Johnson Decl. ¶ 17.

On April 5, 2021, Disability Rights Texas sent a demand letter to Bexar County on behalf of NFB-TX, CTD, and Mr. Johnson. Id. ¶ 77. The demand letter asserted that the "current vote-by-mail system in Bexar County does not allow voters with disabilities, including the blind, to cast a private ballot." ECF No. 1-2 at 2. The letter also stated that "the current vote-by mail process ... discriminates against voters with disabilities" in violation of Title II of the ADA and § 504 of the Rehabilitation Act. Id. Although the letter requested a response no later than April 21, 2021, no response followed. ECF No. 1 ¶¶ 80–81. A second demand letter was sent on August 6, 2021, but again, Bexar County did not respond. Id. ¶ 82. Plaintiffs, therefore, initiated this action.

Concurrently with their complaint, Plaintiffs filed a motion for a preliminary injunction. ECF No. 3. Defendants filed a response, ECF No. 16, and Plaintiffs filed a reply, ECF No. 17. On June 15, 2022, the Court heard argument on Plaintiffs' request for injunctive relief.¹⁰ Plaintiffs requested leave to file supplemental briefing in support of their motion for a preliminary injunction on June 23, 2022. ECF No. 21.

DISCUSSION

I. Legal Standard

To secure a preliminary injunction, the movants must demonstrate by a clear showing: (1) a substantial likelihood of success on the merits; (2) a substantial threat of irreparable harm if the injunction is not granted; (3) that the threatened injury outweighs any harm that may result from the injunction to the non-movants; and (4) that the injunction will not undermine the public...