Johnson v. Callanen

1

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; AND BEXAR COUNTY, TEXAS, Defendants

No. SA-22-CV-00409-XR

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

July 6, 2023

ORDER

Xavier Rodriguez United States District Judge.

On this day, the Court considered the above-captioned case. Before this Court is Plaintiffs' motion for summary judgment (ECF No. 48), Defendants' response (ECF No. 51), and Plaintiffs' reply (ECF No. 52), as well as Defendants' cross-motion for summary judgment (ECF No 49), and Plaintiffs' response (ECF No. 50). The Court has also reviewed Defendant's supplement to its motion for summary judgment (ECF No. 55) and Plaintiffs' response (ECF No. 56). After careful consideration, the Court issues the following order.

I. BACKGROUND^[1]

All Texas voters have the right to “vote in secret and free from intimidation.” TEX. ELEC. CODE § 62.0115(b)(2). Additionally, some voters, including those with physical conditions preventing them from voting in person, may vote absentee. Id. § 82.002(a)(1).^[2] Together, these provisions establish that voting in secret by absentee ballot is a benefit that Texas guarantees for all qualified voters.

Regrettably Texas, while affording all voters the right to vote in secret and free from intimidation and affording qualified voters the ability to vote absentee, has yet to clarify how blind and visually impaired voters can exercise both rights simultaneously under Texas law.^[3]The Court recognizes that Bexar County has provided Plaintiffs with alternative means by which to vote, including voting in person or absentee (with assistance), but acknowledges that these solutions are imperfect and are not realistic for all visually impaired individuals. State legislatures across the country have affirmatively implemented electronic voting systems in recognition of the practical difficulties that blind, qualified voters face as they try to cast their absentee ballots in a secret fashion without help from another person. See ECF No. 35-1, Blake Decl. ¶ 8 (noting that accessible electronic alternatives to paper mail-in ballots are made available to disabled voters in Nevada, Maryland, Ohio, Michigan, New York, Pennsylvania, North Carolina, New Hampshire, California, Virginia, and elsewhere). Unfortunately, despite explicit requests for guidance from advocates for disabled citizens, Texas has thus far been unwilling to act to protect the ability of some of Texas's most vulnerable citizens to exercise their right to vote in secret.^[4] W.Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943); In re Talco-Bogata Consol. Indep. Sch. Dist. Bond Election, 994 S.W.2d 343, 347 (Tex. App.-Texarkana 1999, no pet.) (“Privacy in casting one's ballot is a sacred rule of law in this state.” (citing TEX. CONST. art. VI, § 4)). Its failure to do so has resulted in this litigation.

On April 27, 2022, three visually impaired individuals and two nonprofit organizations composed of visually impaired and otherwise disabled Texans-all of whom are eligible to vote and want to vote absentee in secret and free from intimidation-sued Defendant Jacquelyn F. Callanen, in her official capacity as the Bexar County Elections Administrator, and Defendant Bexar County, Texas (together, “Defendants”). ECF No. 1. Plaintiffs Larry Johnson, Wendy Walker, and Amelia Pellicciotti (“Individual Plaintiffs”) are registered voters in Bexar County, Texas, and are each eligible to vote by absentee ballot in Texas. The Individual Plaintiffs have disabilities as defined under Title II of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12131 et seq. ECF No. 34, Stip. ¶¶ 2-4. The Individual Plaintiffs are blind and cannot read print. Id. ¶¶ 5-7.

The two organizational plaintiffs are the National Federation of the Blind of Texas (“NFB-TX”) and the Coalition of Texans with Disabilities (“CTD”) (together, the “Organizational Plaintiffs”). NFB-TX is a nonprofit organization which helps blind individuals integrate successfully with society. ECF No. 27 at 5. NFB-TX members include both blind individuals and their friends and family. Id. Plaintiff CTD is a nonprofit whose members are Texans with disabilities, their family, and friends. Id. CTD's goal is to help disabled Texans “work, live, learn, play, and participate fully in the community.” Id. The Organizational Plaintiffs each have members who are registered to vote in Bexar County and are eligible to vote by mail because of their disabilities. Id. at 6.

The Individual Plaintiffs and members of the Organizational Plaintiffs assert that they cannot fully exercise their right to vote in secret because Bexar County's in-person and vote-by-mail systems are inaccessible. See generally id. In particular, in-person voting requires Plaintiffs to seek assistance from sighted friends, family members, or poll workers to complete the paper ballots. Likewise, although Plaintiffs are eligible to vote by mail, they can neither apply for nor complete the mail-in ballots independently because both the application and the ballot itself are on paper. ECF No. 27 at 10; ECF No. 34, Stip. ¶ 8.

Accordingly, Plaintiffs sued under Title II of the ADA, and Section 504 of the Rehabilitation Act of 1973 (“Section 504” or “RA”), 29 U.S.C. §§ 791 et seq., seeking an injunction requiring Defendants to provide an accessible method of voting for blind and printdisabled voters.^[5]ECF No. 27. Plaintiffs seek access to Bexar County's MOVE Edge system.

MOVE Edge is a web-based application that Bexar County implemented to comply with the Uniformed and Overseas Citizens Absentee Voting Act (“UOCAVA”), 52 U.S.C. §§ 20301 et seq., as amended by the Military and Overseas Voter Empowerment Act (“MOVE Act”), Pub. L. No. 111-84, Subtitle H, §§ 575-89, 123 Stat. 2190, 2318-35 (2009). The system provides military personnel with electronic ballots, is already in place, and has been approved by the Texas Secretary of State. ECF No. 34, Stip. ¶¶ 9-10.

To use MOVE Edge, eligible users first submit an application called the Federal Post Card Application (“FPCA”) either by email or mail, where they register to vote and request an absentee ballot within the same document.^[6]The FPCA allows voters to specify how they wish to receive their ballot-by mail, common or contract carrier, or email.^[7] For electronic ballots, Bexar County first uploads the ballot to MOVE Edge. Then, the system creates a fillable PDF of the document which voters can access online using a personalized code. Id. ¶¶ 9-15; ECF No. 27 at 12. Once completed, the ballots are returned through the mail. ECF No. 49 at 3. If MOVE Edge ballots were “accessible,” i.e., capable of being read and completed by assistive devices, Plaintiffs could access, complete, and submit their vote in private through the system.

On June 15, 2022, the Court heard argument on Plaintiffs' first request for injunctive relief. On July 7, 2022, the Court issued its order denying Plaintiffs' first motion for a preliminary injunction. Johnson v. Callanen (“Johnson I”), 610 F.Supp.3d 907, 919 (W.D. Tex. 2022). In its order, the Court held that Title II of the ADA entitled Plaintiffs to request a reasonable modification that would allow them to vote on their own. Id. at 915-16. Plaintiffs failed, however, to establish that the only modification requested-affording blind or visually impaired voters the opportunity to vote using the MOVE Edge system-was reasonable. Id. at 917. Plaintiffs did not describe with specificity how the electronic voting system provided to military and overseas voters operated, and thus could not establish that blind or visually impaired voters could access, complete, and submit their electronic ballot privately and independently. Id. Because no evidence supported the reasonableness of the requested relief, Plaintiffs' motion for a preliminary injunction was denied. Id. Instead, the Court concluded that “[t]he request for a modification is best determined through a flexible, interactive process that involves both parties.” Id. Once the parties had further engaged in this interactive process, Plaintiffs were granted leave to file a second motion for a preliminary injunction that fully explained whether and how the requested modification was reasonable. Id.

Under the Court's order, the parties attempted to engage in the interactive process. They discussed how the MOVE Edge system works and whether there were any available methods to provide accessible absentee ballots to voters with visually impaired disabilities. ECF No. 35-2, Blake Decl. ¶ 6. Defendants, however, maintained that they were unable to allow voters with visually impaired disabilities to use the MOVE Edge system or any other electronic ballot because Texas state law does not permit them to do so. Id.

On October 12, 2022, Plaintiffs again sought a preliminary injunction requiring Defendants to extend access to MOVE Edge to all visually impaired individuals in Bexar County or alternatively, to the Individual Plaintiffs only. ECF Nos. 35, 41. The Court denied the motion for a preliminary injunction as it pertained to all visually impaired voters in Bexar County, concluding that a county-wide injunction would disserve the public interest. Johnson v. Callanen (“Johnson II”), No. SA-22-CV-00409-XR, 2022 WL 14069015, at *4 (W.D. Tex. Oct. 21, 2022). Specifically, the Court was concerned about altering the election system so close to the November 2022 election, especially because the parties had not agreed to any procedures for assessing eligibility to use the MOVE Edge system or...