Editor’s note: This story has been updated.
A group of blind Hoosiers and their advocates have filed a lawsuit against Indiana, claiming the state’s absentee voting scheme that forces them to “permit virtual strangers to fill out their ballots” violates the Americans with Disabilities Act.
The complaint, American Council of the Blind of Indiana, Indiana Protection and Advocacy Services Commission, Kristin Fleschner, Rita Kersh, and Wanda Tackett v. Indiana Election Commission; the Individual Members of the Indiana Election Commission, in their official capacities; and Indiana Secretary of State, in her official capacity, 1:20-cv-3118, was filed Dec. 3 in the U.S. District Court for the Southern District of Indiana, Indianapolis Division.
Plaintiffs claim Indiana’s “Absentee Vote from Home Program,” which includes early in-person voting and mail-in balloting, is inaccessible to blind and visionally impaired individuals. They assert the state is discriminating in violation of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973 by failing to meet its obligations to provide them with equal opportunities for absentee voting.
In the court filing, the three individual plaintiffs detail their attempts to vote in the November 2020 presidential election.
Kristin Fleschner had to have a traveling board come to her house with the absentee ballot even though she has had organ transplantation and was very concerned about the risks posed by COVID-19. Rita Kersh, who is also especially vulnerable to the coronavirus because she is undergoing treatment for cancer, had to vote in-person.
Wanda Tackett was prevented from voting. She had submitted an application to vote by traveling board, but the Vanderburgh County Election Office told her a board was unavailable.
The state had been previously made aware of the need to adjust its absentee voting procedures for blind voters, according to the lawsuit. In September 2019, the National Federation for the Blind sent Indiana a letter seeking modifications necessary to make the state’s vote-from-home program more accessible. Also, the American Council of the Blind of Indiana wrote and spoke with the Secretary of State’s Office and the Indiana Election Commission in roughly the first half of 2020 to ask for accommodations so blind voters could cast their ballots from home.
Plaintiffs are now turning to the federal courts to require Indiana to offer alternative format absentee ballots, which would enable voters with vision disabilities to vote in a private and confidential manner. Also, the plaintiffs are seeking attorney fees and costs.
“Voting is one of our most important rights. By operating a voting program inaccessible to some people with disabilities, Indiana is creating unnecessary and unlawful barriers to the voting process,” Tom Crishon, Indiana Disability Rights legal director, said in a statement. “Voters with disabilities must have equal access to all aspects of Indiana’s voting program, including absentee voting.”
Indiana Secretary of State Connie Lawson’s office declined to comment on the pending litigation.
Under Indiana Code § 3-11-10-24(b), voters who are unable to mark their own ballots or sign an absentee ballot envelope must use the visiting absentee voter board. This traveling board, which is mandated to consist of one Republican and one Democrat, will go to the voters’ homes and mark the ballots on their behalf.
The traveling board that visited Fleschner’s house did not provide any advance notice of their arrival, according to the lawsuit. Also, the two board members refused to mark her ballot, causing Fleschner to have her mother fill in her choices.
Moreover, Fleschner questioned the partisan balance of her board when she learned the two members were sisters.
When voting in-person, blind voters will only be able to make their selections independently and confidentially if they go to a polling location that has the accessible voting machines, the lawsuit noted. The visually impaired individuals may still encounter obstacles, such as crowd noise drowning out the machines’ audio.
Kersh struggled to hear her voting machine because of the “poor quality of the speech program,” the lawsuit asserted. The only way she was able to vote was because she had created a Braille sample ballot that she used at the polling site.
Tackett contacted the Vanderburgh County Election Office in October to request the traveling board bring an Votronic vote recorder, a device that would enable her to vote privately. She had used the Votronic at her local polling place in a past election, according to the complaint.
Vanderburgh election officials told Tackett that the device was not available to be used remotely, the lawsuit noted. The officials also said they were trying to recruit volunteers to serve on the traveling board and would contact her to schedule a visit so she could vote. Nobody contacted her or appeared at her home.
“The right to a secret ballot is a fundamental right that most Americans take for granted,” said Jelena Kolic, an attorney with Disability Rights Advocates. “Unfortunately, Indiana has failed to respect that right for voters with certain disabilities. Through this case, we hope to ensure that all Hoosier voters are granted equal access to a private and independent vote.”