November 3 is election day and as they say down here, it is fixin/goin to be a wild one. Regardless of your views, get out and vote. I have long believed that voting is the first duty of every American citizen.

In keeping with that spirit, this week’s blog entry deals with the question of whether California allows meaningful access to voting with respect to those who have what the court called print disabilities. The case of the day is California Council of the Blind v. Weber, here, decided by the United States District Court for the Northern District of California on October 2, 2026. As usual, the blog entry is divided into categories, and they are: facts;  why California’s remote access vote by mail system denies meaningful access to voters with print disabilities in violation of §504 of the Rehabilitation Act and Title II of the ADA; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

Plaintiffs Gray, Zavoli, and Dawson Rawlings are individuals with print disabilities and organizations that represent individuals with print disabilities. Print disabilities are “disabilities that prevent a voter from reading, marking, holding, handling, and/or manipulating a paper ballot privately and independently.” The individual Plaintiffs Gray, Zavoli, and Dawson Rawlings are qualified individuals with disabilities within the meaning of the ADA, Section 504, and Section 11135. The organizational Plaintiffs California Council of the Blind and National Federation of the Blind of California, are membership associations with members who are qualified individuals with disabilities within the meaning of the ADA, §504 of the Rehabilitation Act, and California Government Code §11135.

In California, all registered voters may vote by mail. Individuals with print disabilities may receive, review, and mark their vote-by-mail ballots electronically on their own devices, such as a personal computer, using a remote accessible vote-by-mail (“RAVBM”) system that has been certified or conditionally approved by the Secretary. See California Elections Code § 3016.7. However, voters may not return ballots marked using a RAVBM system electronically. Instead, except for the option to return a ballot via facsimile, which is available to certain military voters and voters who live in other countries, voters in California must “print their ballots, place those ballots in an envelope, sign and seal the envelope, and then arrange for return of the paper ballot through a non-electronic means.” Presently, no one is authorized to return a ballot electronically in California.

Many voters with print disabilities need assistance to print and return their ballots. Many voters with visual impairments may not have a printer because they do not have a need for one. Printers are not an item that persons with visual impairments typically use regularly, and they typically would need assistance to get a printer. Even if they had a printer, persons with visual impairments would need assistance to ensure the ballot printed correctly, to put the ballot into the envelope, and to mail it. Voters with mobility issues would have similar difficulties in printing and mailing their paper ballot without assistance. The Disability Rights California’s voting hotline for 2020 received calls from people stating that they were unable to vote privately and independently even with an RAVBM system, either because they did not own a printer or could not manipulate a printout into an envelope without assistance. If someone assisted a voter with disabilities, that person could then review the voter’s selections and decide whether or not to return the ballot.

 

II

Why California’s Remote Access Vote by Mail System Denies Meaningful Access To Voters with Print Disabilities in Violation of §504 of the Rehabilitation Act and Title II of the ADA

  1. Since the affirmative defenses of fundamental alteration and undue burden were waived by the defendant, the only question is whether plaintiffs were denied meaningful access to the right to vote through the vote by mail program.
  2. The Supreme Court has previously held that §504 of the Rehabilitation Act requires that an otherwise qualified handicapped individual must be provided with meaningful access (emphasis in opinion), to the benefit a public entity offers.
  3. Most relevant is the effective communication regulation for Title II of the ADA. That regulation says several critical things. First, in determining what type of auxiliary aids and services necessary, a public entity has to give primary consideration to the requests of the individual with disabilities. 28 C.F.R. §35.160(b)(2). That same provision also specifies that in order to be effective, auxiliary aids and services must be provided in accessible formats, in a timely manner, and in such a way as to protect the privacy and independence (emphasis in opinion), of the individual with a disability.
  4. Many courts construing meaningful access to and limitations on voting have held that one of the central features of voting, and one of its benefits, is voting privately and independently.
  5. The Second Circuit has noted that relegating persons with disabilities to voting with the fortuitous assistance of others is contrary to the purpose of the Rehabilitation Act, which is designed to empower individuals with disabilities to maximize their employment, economic self-sufficiency, independence (emphasis in opinion), and inclusion and integration into society. The Second Circuit also noted that the right to vote should not be contingent on the happenstance that others are available to help.
  6. The Northern District of California has previously held that: 1) most voters at the polls cast their ballots in private, without threat of interference by coworkers, the government, or curious onlookers; 2) the provision of voting systems allowing for such privacy is a normal function of a government entity; 3) every state in this country has employed the use of the secret ballot since the early part of the 20th century; 4) requiring blind and visually impaired individuals to vote with the assistance of a third party, if they are to vote at all, at best provides those individuals with an inferior voting experience not equal to that afforded others. That is, those blind and visually impaired voters are forced to reveal a political opinion that others are not required to disclose.
  7. The California Constitution provides that voting shall be secret. So, requiring assistance from another person in order to complete the voting process is antithetical to voting in secret.
  8. Meaningful access to the vote by mail program includes the right to do so privately and secretly. Requiring assistance from another person to complete the voting by mail process is antithetical to voting privately and secretly. Plaintiffs are not able to print, sign, and return the ballots in paper form because of their disability without the assistance from another person.
  9. There is a significant difference between authorizing (emphasis in opinion), a person with a disability to select the people of their choice to assist with voting and requiring (emphasis in opinion), assistance to complete the voting process.
  10. Just because the Voting Rights Act addresses one aspect of discrimination in voting does not mean that the ADA and the Rehabilitation Act cannot be used to prohibit further discrimination in voting.
  11. If the Voting Rights Act set the ceiling on how to address discrimination with respect to voting for people with disabilities, then courts would not be able to consider technological advances in determining what was reasonable.
  12. The ADA and the Rehabilitation Act do not provide a set of freestanding rights, such as the right to vote, or the right to vote independently. Instead, those statutes require reasonable accommodations to provide person with disabilities meaningful access to services, programs, and activities, so long as those modifications do not result in an undue burden or fundamentally alter the nature of such program or activity.
  13. Any cases suggesting to the contrary, with the exception of one that failed to address the effective communication regulation at all, were all decided before the effective communication regulation came into effect in 2011. The effective communication regulation requires appropriate auxiliary aids and services when necessary to avoid individuals with disabilities an equal opportunity to participate in, and enjoy the benefits of a service, program, or activity of a public entity. 28 C.F.R. §35.160(b)(1).
  14. In addition to the primary consideration rule of the regulation, that regulation also specifies that in order to be effective, auxiliary aids and services must be provided in accessible formats, in a timely manner, and in such a way so as to protect the privacy and independence (emphasis in opinion), of the individual with a disability.
  15. The effective communication regulation informs the meaning of meaningful access to the vote by mail program.
  16. While it is true that the California constitutional provision requiring voting in the secret specifically allows to voting assistance from a person of a voter’s choice, allowing such assistance is completely different from requiring assistance to complete the voting process. Allowing a voter with a disability to select people of their choice to assist them does not render that process secret or private. Instead, it is merely a method of supporting individuals who have someone with whom they are comfortable and whom they trust to assist them with voting. Not everyone is in that position and people with disabilities should not be required to rely on someone else to assist them with voting. The two options can exist harmoniously with each other.
  17. The aspect of printing, signing the envelope, and returning the ballot cannot be separated from the vote by mail process. If plaintiffs cannot complete the process of voting by mail privately and independently, then their access to the benefits of this program is restricted.
  18. The duplicating process used for tabulating the votes through the remote access vote by mail system, is a completely different thing than requiring someone to print, sign, and return the ballot when they must obtain the help of someone in person to do so. In that situation, the assistant to the person with disability learns of that person’s specific votes. That is, the privacy and secrecy of the voter with the disability selections are disclosed to another person and are compromised.

III

Thoughts/Takeaways

  1. Since tomorrow is election day, I felt that I had to write on a voting access question.
  2. The court granted summary judgment to the plaintiff on liability, but left the remedy question to further briefing and proceedings.
  3. People with disabilities just like people without disabilities have a right to vote independently and in private.
  4. Meaningful access is the standard proposed §504 to Rehabilitation Act and for Title II of the ADA.
  5. California waived any undue burden or fundamental alteration defense.
  6. The effective communication regulation for Title II of the ADA was controlling authority to this court. Loper Bright did not come up in the opinion.
  7. Keep in mind that there is a critical difference between the Title II effective communication rule and the Title III effective communication rule. As noted in this case, the Title II effective communication rule has a primary consideration requirement. However, the Title III effective communication rule strongly encourages an interactive process to figure out what is effective communication.
  8. I haven’t seen the term “print disabilities,” before. Even so, you certainly could get to the same place by using different words so that “print disability,” is still the focus of this case.
  9. State law can go further than the ADA or §504 of the Rehabilitation Act does and the California law frequently does (I am not licensed in California).
  10. I can tell you from personal experience it is absolutely humiliating to have to rely on the good graces of private individuals to accommodate you when it is somebody else’s obligation to do that. My most recent experience with that involved not being able to hear announcements on an airplane that was diverted due to bad weather despite having told the flight attendants in advance that I would need to be informed of unusual announcements. Fortunately, a gentleman sitting next to me was kind enough to tell me what the announcements said (I recognize that this situation is governed by the Air Carrier Access Act and not the ADA, but the psychological effect is the same).
William Goren

William D. Goren is one of the country’s foremost authorities on the American with Disabilities Act (ADA) and the Rehabilitation Act of 1973. For 28 years and continuing, he has been advising on ADA compliance as both an attorney and professor—of which during…

William D. Goren is one of the country’s foremost authorities on the American with Disabilities Act (ADA) and the Rehabilitation Act of 1973. For 28 years and continuing, he has been advising on ADA compliance as both an attorney and professor—of which during his time as a full-time academic at various institutions in Chicago, he won numerous teaching awards and achieved tenure.

Read more about William GorenEmail
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