This is being provided in a rough-draft format. Communication Access Realtime Translation (CART) is provided in order to facilitate communication accessibility and may not be a totally verbatim record of the proceedings.
EVE HILL: Welcome to the afternoon plenary. Very happy to be here. My name is Eve Hill. I'm still a partner at a law firm, Brown Goldstein & Levy. Very excited to still be there after today. I'm also still general counsel at the National Federation of the Blind I'm also still a white woman with reddish hair who uses she/her pronouns. I've been a disability rights attorney for 30 years, and that still makes me feel very old. And since 2019, I've been doing a lot of work around accessible voting, so that's why I'm here today. Lou Ann Blake is here with us, as director of research programs at the National Federation of the Blind, where she has been with the NFB since 2005. And she has been, and simply is, a leader in ensuring that voting systems nationwide are accessible to people with print disabilities. She's an expert in voting systems. I know this, because I have used her as an expert. And has been involved in an advocate in many voting accessibility advocacy efforts around the country.
Stuart Seaborn is director of litigation at Disability Rights Advocates. He first joined DRA in 2011 and has been advocating in the public interest for nearly 20 years specializing in systemic litigation on behalf of people with disabilities. In one example of his matters of first impression that he's addressed disabled inaction versus board of elections securing the first federal appellate decisions to hold that under the ADA election officials must provide voters with disabilities the same private and independent voting experience they provide to non disabled voters.
Lucia Romano is the supervising attorney at disability rights Texas. She began in 2005 as a disability rights advocate, leading special projects around the jail diversion project in Harris County and on the Katrina aid project and she became a staff attorney for the organization in 2006 and ultimately accepted a management role in 2014. Her current work focuses on direct legal representation in employment discrimination, wage equity, vocational rehabilitation, ADA accessibility and voting rights for individuals with disabilities. So I'm going to turn it over first to Lou Ann Blake to tell us about legislative updates in voting in the past few years.
LOU ANN BLAKE: Thank you, Eve. Good afternoon, everyone. My name is Lou Ann Blake as you said. I am a white woman, mature white woman, I'll say. Gray hair that's braided in a French braid. I have on a blacktop and a green jacket and I'm not quite used to being seeing you all from this perspective. So this is a little different for me. So I'm going to start off by I'm going to be focusing exclusively on accessible vote by mail of the and for those of you who may not know what that really looks like, just going to talk briefly about what an accessible vote by mail system is. The most accessible and most useable systems are web based systems that comply with the web content accessible guidelines level AA.
And that means that a voter with a print disability can use any kind of access technology to use to move through the ballot, mark the ballot, and in some cases, not enough, but in some cases, return the ballot. So, for example, I'm using a Maryland online ballot marking tool and I use a screen reader and screen verification to access the ballot and mark the ballot. So currently a little more than half the states provide an accessible way for voters with print disabilities to mark their ballot. And only about 13 states permit voters with disabilities to return their ballot electronically. Now, as much as Eve would like, we cannot sue all these jurisdictions that currently do not provide.
EVE HILL: Come on!
LOU ANN BLAKE: I don't think NFB could support that financially unfortunately. One of the things we're focusing on now is getting legislation passed at the state level. As we all know Congress is doing nothing. They had an opportunity after the 2020 election to pass election legislation and failed miserably. So we're looking at states. And one of the reasons why we're actually doing that, in addition to the fact that we can't sue everybody, a common complaint that state election directors, or a common excuse that state election directors give for not providing accessible vote by mail is that their state law doesn't permit it. Regardless of what Title II of the ADA requires, and supremacy clause of the constitution, they fragrantly, just violate the Title II of the ADA without just without even thinking about it. So we're going to say okay, well, your state law doesn't permit it. We'll we're going to change that.
And prior to 2020, there were a few states that did pass legislation, Hawaii, Colorado, and West Virginia that permitted electronic ballot delivery. And in the case of Hawaii and West Virginia, electronic return for voters with disabilities. And before the 2020 election, the trend was moving towards an increased use of vote by mail. And then of course COVID really pushed the question with many state and local jurisdictions moving their elections to vote by mail with very limited in person voting because of the pandemic. So and vote by mail continues to be an ever increasing popular way to vote for people. So following the 2020 election, we started ramping up efforts to get state what legislation passed to require an accessible way to vote by mail for voters with print disabilities.
Illinois is one state where we've been working very hard. Sand build a very strong coalition of disability rights organizations. And they work together, and these organizations included the NFB of Illinois, Illinois Council of the Blind, people for equality, Illinois P&A, Access Living, Center for Independent Living in Chicago. And they worked very hard to get legislation passed last year to require electronic ballot delivery for voters with disabilities. And they are working this year, and have had a bill introduced in the Illinois general assembly to require electronic ballot return for voters with disabilities. So coalition building is very important in getting accessible vote by mail legislation passed. Because there is some opposition based on, one thing we hear from state legislators is, well, how many people are actually going to use this system? Well, the ADA doesn't require a minimum amount of people to use this system. That's irrelevant. And the cost is an issue.
So we need to show a really strong support, that there's really strong support for this legislation. And of course then we also have to deal with the security fear mongers out there. So Illinois is one example of legislation that was passed last year. Massachusetts and Rhode Island also passed legislation last year. Massachusetts, both electronic ballot delivery and return, when it's an accommodation for a voter with a disability. And in Rhode Island, they passed a legislation for both electronic ballot and return for voters with disabilities and military overseas. Who actually were the original users of these types of systems, based on the Act that required that provided military overseas with the right to request that their ballot be delivered electronically. So that's the progress that was made last year.
This year, as I said, we're focusing on getting electronic return passed in Illinois. We also have a bill that's been introduced in New York for both electronic ballot delivery and return, and also in New Jersey. In both those states, it's for voters with disabilities and in New Jersey it's as well. We're also hopeful that this year there will be a bill in California. Last year there was a bill in California that failed because the Secretary of State was spreading misinformation that there's not a paper ballot associated with a successful vote by mail. That isn't correct with accessible vote by mail. They print it out when there is no electronic return or the elections office prints it out when they receive the ballot electronically.
An important thing to note with electronic return is that makes the process fully accessible. The requirement that a voter prints out the ballot is a real barrier to voters with print disabilities. A lot of blind people don't have printers. Surprise, surprise. You know. Somebody lacks manual dexterity to handle a piece of paper, that is a barrier requiring them to print out a ballot and handle a ballot, is a barrier. So electronic return makes the process fully accessible. And then moving forward, we are looking to build additional coalitions, not just in New Jersey and New York, but also we're hoping to build coalitions in California. And moving forward, Michigan is a state that we are in contact with the P&A in Michigan and our affiliate. We're looking to bring in the ACB affiliate in Michigan.
We're also looking to build coalitions in Washington State. Washington State has been an all vote by mail for a number of years now. And I think it's about time that they make that process fully accessible to voters with disabilities. So we are looking to build a coalition there with the BNA, our NFB Washington affiliate, the ACB council, ACB affiliate in Washington state. And finally Oregon is another state that's a vote by mail state that we're also looking to get legislation passed. As well as Idaho. Idaho is a very conservative state, but there is some possible support from the Secretary of State there in Idaho. So we're hopeful that maybe Idaho is another state where we can move forward. So that's my update.
EVE HILL: All right. So now I get to talk about the litigation because I do get to do some litigation. Sometimes we get to follow the legislative issues with some litigation, because Illinois, while they did pass a law, it didn't cover the first election to come up after that election. So we had to threaten them with litigation to get them to implement accessible voting for the very first election after the legislation went into effect. But I'm going to talk about New York. And I think you've probably heard me talk about New York before. Probably back in 20216789 when we reached an agreement with New York to purchase remote accessible vote by mail system. But we reached the agreement in October of 2021. But the agreement wasn't finalized and inked and approved by the court until early 2022 because we had spent the intervening time negotiating over attorneys' fees which is very important, but we all knew what the substance of the agreement was. We had every word chosen and agreed to in October of 2021.
And the court accepted jurisdiction to enforce the agreement. You'll understand why that was important as I get into the story. So elections were scheduled in 2022 for June and August and November. And the remote accessible vote by mail system was supposed to be purchased and in place and ready to go in June for that very first election. Unless it was impracticable. Don't forget the C in impracticable. The technical term is lollygagged and then at the last possible moment said they weren't going to be able to get it in place for the June election, and they weren't going to try to get it in place for the August election and they blamed their procurement process. Who could predict that a procurement process in a state would take time? Certainly the state couldn't be expected to know that its own procurement process would take time.
So they argued that their procurement process, what made it impracticable to get this voting system in place. And they argued that the definition of impracticable should be slightly difficult. We pointed out every form in the dictionary. Litigation by dictionary except the dictionary didn't say impracticable meant difficult. They had no support really for their position. And we argued that state of all people should know how its procurement process works and how long it takes and when they sign an agreement that requires a procurement by a certain time, they should know that they can get it done in that period of time. And we also showed that they actually didn't do anything for a long, long, long time.
And then of course that impracticable has a higher standard. So we took the case back to the judge because he retained the enforcement to the jurisdiction. Yay and we alleged both breach and content. And I wonder why judges don't get more angry at these levels of contempt but they don't. So after hearing where we put on the head of elections who said procurement is impossible and we couldn't possibly have known, and we put on someone from procurement who threw the state under the bus
[ Laughter ]
And said of course it's a plain process we do it this way all the time, we knew it, they didn't try, we asked them, they just didn't want to. We don't know why. So the judge found that they had breached the agreement. And then asked for briefing on whether it was contempt and what the remedy should be. So we briefed then, and you'll be shocked to hear that we argued that it was contempt and the remedy should be damages. And attorneys' fees and a fund based on a fine of every day that the RAVBM wasn't in place until November. And I don't remember what else. But a lot. And then the judge said this is cool. Thanks so much for the briefing. You go and try and work it out.
Still, not upset about the contempt. So we went and in the meantime he also, the judge said you go work it out, but in the meantime state you're going to report to me every week exactly what you've done and whether you're on progress to make it to get the RAVBM system in place by November.
So they did get it in place by November. They worked with enhanced voting although democracy live remains in place in New York City. And we worked out a resolution of the breach slash contempt remedies for damages and attorneys' fees. And now people in New York can vote accessibly by absentee ballot. So yay.
[ Applause ]
This is not that happy because it should have been happening a lot earlier than it did. And in the less happy news, this is not on our list because it wasn't it's hot off the presses. Alabama. Alabama, in which the judge is the former solicitor general for the state of Alabama that we sued. So that boded really well. The judge just dismissed our case against the secretary of state saying you can't sue the secretary of state you have to sue the legislature because they are the ones that wrote the law that says you can't have accessible electronic voting. And I'm like how am I supposed to do that?
And tow make it even more complicated, even if we could sue the Secretary of State or someone, it would have to be a county and not the Secretary of State. Because the Secretary of State despite all the rules that he sets about how absentee voting happens, has nothing to do with absentee voting and we'll talk more about this issue. Turns out Secretaries of State have nothing to do with voting. Who knew? So you must sue the legislature, even if you don't have to sue the legislature, you have to sue a county. So who's here from Alabama?
EVE HILL: Are you a good guy? Do I like you? I like you very much.
[ Laughter ]
We're considering bringing the judge the question to really make him answer the question, which is it? Do I have to sue the legislature? Because then I get to appeal. Or do I have to sue a county, because then I get to win. Either one is fine. But somebody's got to answer the question. So now I'm going to kick it over to Stuart to talk about Indiana and North Carolina and any other new breaking news.
STUART SEABORN: Nothing like Alabama. I was going to say the tale of two states. Let's see if we still have an echo. I've got a tale of two states that's not as disparate Alabama and New York. That is to be expected sometimes between Alabama and New York. We have entered into this world of accessible absentee voting much later in the game than Eve and the NFB and folks I've seen here today such as Mike Nunez. We are working on access to vote cases, things like the path of travel being accessible, whether there was an accessible voting machine, whether it was maintained and folks were trained on using it. And we had some referrals that we were investigating around absentee voting and following cases that others had done around accessible systems, based on looking at what the Rosen Bien Galvan & Grunfeld vocation were doing in San Mateo county not accessible vote by mail.
And then the pandemic hit, like others here we were kind of hit with the perfect storm. Where folks all over the country were going to vote by mail because of COVID because who wanted to vote next to somebody else. And if you needed an accessible voting machine and had to be assisted getting to an accessible voting machine, that was a heightened risk that many of our clients faced. And we were directed to some folks who I think are here today, Disability Rights North Carolina. And the Council of the Blind in North Carolina who had a real understanding of what the state could and couldn't do in the context of accessible absentee voting. Because we're in the 3:45 session today I'm going to ask you a couple of questions to wake people up.
We were thinking about offering free coffee but that's not possible here. I'm going to think if you can ask of some good facts that may have existed in the context of our case in 2020 that may have helped get a fully accessible E return system in North Carolina. In addition to the fact we had wonderful co-counsel and Holly from disability rights North Carolina argued a very kick ass injunction motion. I want to think if folks could one of the two key factors outside of what I just mentioned that put us over the edge, but what might have been one of those factors that helped really get the absentee being accessible fully electronic and accessible in the map in the North Carolina case? Remember, I'm talking about 2020. Yes? In the back with the plaid shirt on.
ATTENDEE: One thought comes to mind, thinking about there being a large population of, shall we say, conservative senior citizens, who might be at heightened risk to COVID. They certainly want those persons to vote in their election.
STUART SEABORN: Yes, there is a large population of, let's just say all kinds of voters in North Carolina, who are about to vote in the most anticipated general election, all in the realm of COVID. So the issue was certainly on the state's radar as I said the colleagues at Disability Rights North Carolina and the Council of the Blind had really made that clear and put it on the radar. I'm going to mention one or factor. This is something that Lou Ann mentioned when she was talking about the various states. And that is in North Carolina, the UOCAVA system, the voting for military and overseas voters already made use of an electronic platform that in theory could be paralleled for voters with disabilities. And that's something the state certainly was very open about its capability. They hemmed and hawed about when they could do it.
And they certainly, at least orally to our judge expressed a lot of concerns about being able to get a functional accessible voting system up and running by the time of the general election. But the state, one thing we went about with the people in North Carolina at the state in their board of elections is they were too honest. We found evidence that they actually had submitted a letter saying well they probably could get something done by the 2020 election. And so with the advocacy of our friends at Disability Rights North Carolina and the Council of the Blind, including some expert testimony from an expert that said yeah, there might be some security risk, but it's minimal compared to what you've got with the military and overseas voters and the other risks that may be associated with all kinds of voting systems in your state, the court decided to give us a preliminary injunction and put a fully accessible online system, North Carolina uses democracy live.
So you have requesting the ballots, marking the ballot, and returning the ballot in a fully accessible format in North Carolina. And that went in place for the general election, along with some training and testing opportunities in 2020. So the case continued. And we were feeling pretty good about our chances with this judge. We actually went into negotiations with the state. And we hit I would it a bureaucratic roadblock with the state. Certainly a lot of unfriendly faces an unwilling necessary to enter into a consent decree. Our colleagues at disability rights North Carolina had the idea to instead of just negotiating or taking the case through summary judgment and trial, to file a motion for judgment on the pleadings and the judge actually allowed some of the evidence in from the PI. And with that we secured with our co counsel an order for the 2021 election. And I'm going to read from part of that order, because it actually went beyond that. And it's something we hope we can use as a model for other states.
And the order says the State board of Elections shall ensure that blind voters can request, mark, and return their absentee ballot through electronic means for the election which was at issue at that time, whatever held and in all subsequent elections. So that's something that we hoped they're feeling good. We hoped we could take it on the road. And lo and behold we were contacted by the P and A in Indiana, independent Disability Rights. Is there anybody from Indiana Disability Rights in the room today? All right. Very excellent attorneys and advocates. Also working with blind advocates in Indiana as well. But Indiana was not in the world of good facts in the same way that North Carolina was. There are a couple of factors that were not boding well for fully accessible ballot marking and E return. One of them is the antiquated system that exists there. And I was actually pretty shocked. I studied voting for quite some time, including absentee voting.
I don't know how many other states do this, but at the time, Indiana required voters folks who are blind or others with print disabilities would couldn't fill out a paper ballot, a vote by mail ballot, they couldn't request a friend, a spouse, a colleague, somebody they trust to help them fill out a paper ballot. They actually had to contact what was called the traveling board. Something that the state had put together. And you actually it's kind of what it sounds like. You actually have to make an appointment with representatives, more than one representative from this traveling board to come to your house in order to vote absentee, not privately and not end independently, but to vote absentee at all. For the legal advocates in the group, we might be able to say that thing is unlawful even if we don't get the fully accessible E return system.
So working with the state P&A and the disability rights and the Council of the Blind we moved for preliminary injunction to get to that system removed. We also sought an injunction for an electronic E return system, and finding a liability that the state's current system or the system at that time of absentee voting was unlawful. The court was more than willing to make that finding of liability and made some pretty scathing comments about the traveling board and the system they had in place for voting absentee. However, the court was not that much of a fan of the fully accessible E return system. And so essentially what we got was an order saying you've got to get rid of this system. And the court directed us to go back and work on a remedy. We took that as a hint to go meet with the state and see if we could come up with a remedy. And the remedy we have and all of these materials are in your packets. But the remedy we have requires an accessible ballot marking system, but the fully electronic portion does not extend to the ballot return.
So there's an email return in the settlement. It wasn't all sunshine and roses like the North Carolina settlement. But given some of the hurdles we faced in Indiana. And apparently according to the court of state law, I'm not sure if preemption applies or not, but a state law that makes it more difficult for them to come up with an E return system. So that's where we ended up in Indiana. We cannot wait to see how things pan out in California with this legislative session. We tracked very closely what Lou Ann mentioned in 2022 with that bill with the Secretary of State essentially hijacked or not even hijacked. They really tried to get rid of and were successful.
There were some scathing and offensive language in the Secretary of State's letter. There was a real downplaying of the privacy and independence for voters with disabilities. To the point where I think they were labeling it as convenience. So I don't know if we can trust the Secretary of State not to act this year. I'm hoping that our colleagues at Disability Rights California who did such an excellent job last year will get greater support. If not I agree maybe just legging. We will hope you stay tuned and I will pass it on to Lucia who's going to talk about Texas.
LUCIA ROMANO: Good afternoon everybody my name is Lucia Romano. I go with the pronouns she/her/and ella. I'm a Latina woman. I got the memo from Lou Ann actually about what to wear. I have a black top on and a gray jacket. And I am tasked with talking about Texas. Anyone here from Texas? Good times, right y'all? So there's a lot going on in Texas right now. I don't know, I guess my Texas folks know of the saying that everything is bigger in Texas, which is true. But when it comes to voting, everything is a lot more complicated in Texas as well. So we're going to talk about that. There's actually two cases that I want to talk about. One of them is in line with the electronic accessible mail in ballots, and the other one has to do with a law that was passed in Texas in 2021. But let's talk about what we're doing in Bexar County in Texas.
We have been working with three individuals in Bexar County. These people, wonderful people have visual impairment. They're blind. And one of the plaintiffs in particular had been reaching out to the Bexar County elections official wanting and requesting an accommodation to be able to vote privately and independently and accessibly when he, you know, is using a mail in ballot. And he had requested multiple times, by email, by phone. Never really got a response. And never got anywhere with his requests. We stepped in, and we attempted to communicate with the county. On multiple occasions sent demand letters and such. Also no response. Crickets. Crickets out there in the Texas sky. So, knowing that Eve was involved of course, the next step was to litigate.
[ Laughter ]
So, you know, I thought well, it's such bad news. With Indiana and Alabama it's kind of in line, but we did. We filed a lawsuit and actually we tried to file a lawsuit against the Secretary of State first. Because we thought Secretary of State, they are the leaders of determining voting in the state. And ultimately what we came to find out is the position of the Secretary of State, as I think Eve had mentioned earlier, is that they actually don't have anything to do with voting. It's actually the counties that administer the voting. And in particular, the mail in voting process.
And so basically they said we sued the wrong entity. That's how we ended up going to Bexar County. So we filed a lawsuit against Bexar County. And their position in Bexar County has been, which I think Lou Ann mentioned actually, is that state law prohibits the county from allowing accessible electronic balloting. They say that nowhere in the Texas election code is this allowed, and in fact it's prohibited. And we told them yes, we understand that. But there's this thing called the ADA. And it's a federal law. And oh, there's the rehab act too. Section 504. And that's a federal law. And although we tried to explain to them that federal law trumps, I hate to use that word. Trumps state law. That didn't seem to sway them really at all.
Let me go through some of where we are with the case. this past fall, after some initial discovery, we ended up filing for a preliminary injunction. And we did that based on the fact that the defendants in this case, which is the county and the election administrator, stipulated to various things, including that our clients, yes, they do are protected under the ADA, because yes they do have disabilities. That, yes, in fact, the county has a system in place because of UOCAVA. That they have a system in place, and they could actually provide an electronic ballot with no problems. And that there is no unreasonable hardship or anything like that involved in doing this. So we filed for a preliminary injunction.
We had a little bit of success, not complete success. The judge came back and said due to the time frame, because we were about mid October at that point, and the election was in November. He said I grant the injunction for the individual plaintiffs, there were three plaintiffs, but not the whole county. It's impracticable to, at this point, grant the injunction for the whole county. Okay, great. We took that as a success in Texas. Because now we can show how easy this is, and we can use that to our advantage. Come to find out, even though the county had already stipulated that the system that they use, which is the Move Edge system, is accessible and could be used, turns out, it didn't. It also turns out that they don't know what they're talking about. They have no idea. So unfortunately our three plaintiffs had to use a paper ballot, had to get assistance to actually vote in the November election.
After that we did end up deposing the election administrator. And she again, in her deposition, said this would be no problem. We would be happy to accommodate your clients. And people who need this type of accommodation. So it's kind of like a tale of weird two cities. Because they seem to be more than willing to do what needs to be done, but yet when it comes down to it, they actually don't do it. So we have just finished our rounds of dispositive motions. We've been filing motions for summary judgment, both sides, responses, replies. Basically what their argument is, again, state law doesn't allow them to do this. If they were to do this, they're terribly, terribly afraid of being sued by the state. They're terribly, terribly afraid that the election administrator will lose her retirement money, her retirement whatever. I mean fired, you know, if she does this.
They are now saying just they didn't claim this in their answer to our complaint, our initial complaint. Now they're saying it's an undue hardship because of some vague security reasons, which they weren't very specific about. They say that it's an undue, unreasonable hardship to put the county in a position where they would be facing litigation from the state. They said it's also crazy, it's just crazy that just Bexar County would have to do this. This would run amuck. The entire state would be learning how to vote. It would be a whole new voting system in just Bexar County. And that can't happen. We can't have all these counties doing different things. So that's another of their reasons.
They also claim that there is pending proposed litigation. We're in session now in Texas. And there are a couple of bills that are out there that purport to resolve this problem and have accessible and electronic voting available. But these bills have been in committee, and have not come out of committee. There's not been any hearings on these bills. And from our research, at this point it has about a 19% chance of passing. These bills have been filed before in previous sessions and have gotten nowhere. And it doesn't seem like it has a very good likelihood of getting anywhere now. So that's kind of where we are. I don't know if, Eve, if you have any other thoughts about that case?
EVE HILL: I was just saying to Lou Ann, we're going to clear up that confusion among the counties right away.
LUCIA ROMANO: So we are in the throes there in Bexar County. I want to talk about another case that has to do with the SB1 litigation, which passed in 2021 in the Texas legislature. It was a big omnibus bill that passed that really kind of restricted the rights of voters in general in many ways. Texas is not one of the most easy states to vote in. It's one of the worst states, as far as making voting accessible and available to all the citizens of Texas. And SB1 really made it worse.
And so when that law passed, several lawsuits were filed against SB1, for various reasons. We, a group of us that included ACLU, Texas Civil Rights Project, Asian American Legal Defense Fund, Education Fund, several of us got together and filed our lawsuit against SB1. Disability Rights Texas was representing Rev Up of Texas. And part of, let's talk a little about what the problems are with SB1, and what are claims. We are claiming that that law violates Title II of the ADA and Section 504 of the Rehabilitation Act, it is requiring for the mail in ballots, which are still paper ballots, for individuals to have an ID. Like a Texas ID, or driver's license. And it must be on the application and on the envelope to submit your ballot.
And on top of that, that number has to match the voter registration, the number that the person used when they registered to vote. So needless to say, that creates a lot of barriers for a lot of individuals with disabilities. Many people with disabilities might have registered many moons ago. They don't remember what number they used, they don't have the number available to use. So we're saying that that is unduly burdensome for people with disabilities. And there is no accommodating that provision at all. There is a provision to cure that. So if you submit this information and it has the wrong ID number is on there, and they will notify you. Supposedly they will notify you to come and cure it. But in order to cure it, you have to either come into the office and personally you know, change it, bring the right number. Which again, that kind of defeats the whole purpose of voting by mail. Again, this is for individuals who have disabilities who can vote by mail. Or need to, because of their disability.
Another issue that SB1 presented is a change in the law regarding assisting voters to vote. They changed the oath. So previously in Texas you were going to assist someone in voting in person, you would have to generally take an oath that says you know, I didn't vote for this person, I didn't change this person's mind and tell the person how to vote, things like that. But SB1 changed the oath to and I'm going to read it. That the assister could only give assistance in this fashion. Reading the ballot to the voter, directing the voter to read the ballot; marking the voter's ballot or directing the voter to mark the ballot. Again, this is putting a lot of restrictions in terms of how a person with a disability may need assistance. Will plus this oath changed, because before it wasn't any penalty. Now they added a penalty of perjury. So if you assist the voter in any other way, you could be subject to perjury.
So those are the items that we pointed out in our lawsuits that we wanted change in. Again, this case was consolidated. There were four other cases filed, like ours, with huge numbers of plaintiffs. I think, I joke, but when we have litigation meetings with the entire consolidated group of this huge lawsuit, there's like 25 attorneys at least on just the plaintiff's side. So it's a beast of a case. And kind of nightmarish in many ways. We have one interesting kind of event occurred in this case that's never really happened to me before. The Republican Party petitioned to intervene in the case as defendants. So they had the national Republican Congressional Committee and the Republican Party of a couple of other counties petition to intervene in the suit as defendants. The motion was denied, but then they appealed and of course it went to the fifth Circuit and they thought it was a great idea.
And what's interesting with that is that they are now the defendants that are causing which interesting but not, because that's the whole purpose of them intervening is they're the ones that are now blocking any discovery. Really not providing any information. We've had to go to court on several occasions on motions to compel to get information from them. And the judge at this point is really fed up, up to here. We had a hearing a couple of weeks ago, and he said this has been he was basically why did you intervene? Like you're not going to just intervene and be obstructionist and not produce what you should be producing. He says if I have to come back here again, heads will roll. And he was just yelling at the lawyers for the Republican party, which I thought was interesting.
So we are busy. I see some colleagues here who are working on this case. We're busy trying to get witnesses into clearance so that we have some good examples of how SB1 has really prevented them from voting. We have worked with experts. We have worked on getting experts' reports. So we are still really in the midst of discovery at this point. This case was filed in September of 2021. And I think now this last hearing when the judge was yelling and saying heads would roll, he threw out the scheduling, so we don't know yet when we're going to trial. He was like we bed better have a scheduling order by the end of this month. But that case has been moved at least twice. And we're hoping to go maybe end of September or October as a trial date. So yeah. That's what's kind of happening in Texas, as far as voting. It's good times.
EVE HILL: Okay. Now we have ongoing and emerging issues. And these are mostly related to each other. So Lou Ann has talked already a little about the E return and how that is rolling out across the states. But it's not rolling out everywhere. And it seems to be security are the concerns. Can you talk to us about what the concerns are that are preventing E returns from rolling out more thoroughly, Lou Ann?
LOU ANN BLAKE: Well, I could if I really knew what the security concerns were. All they say is oh, we have security concerns.
[ Laughter ]
So what I can say is that there's a lot of progress being made, and well, first of all, nothing is 100% secure. And best practices plays a very large role in this, and that's something that the security fear mongers don't like to talk about. Security best practices are very important. There is some innovations around security. Microsoft developed a system called Election Guard, which permits the voter to verify that their ballot was cast as they marked it throughout the entire process that the ballot is, from the time the ballot was submitted all the way through the casting. And this is called end to end verification. We'll be hearing right after this panel from Aaron Wilson of enhanced voting that his company has evened that into his accessible vote by mail system so maybe Aaron can talk a little about that.
So there's a lot of progress being made. But the bottom line is, well, audits is also very important. That's the real the only way to really show that elections are secure. So there's a lot being done and the bottom line is none of these systems have been hacked in an election setting. They're monitored constantly. 24/7. So I don't really know what the security concerns are.
EVE HILL: What I keep hearing as a security concern is they call it online voting, and as soon as you say it's "online voting," it must be insecure. But it's not online voting. None of the votes are being counted in the cloud. None of the votes are with being counted online. Your submission isn't living in the cloud. Your submission is being transmitted to the county registrar who is printing it out, just like every other ballot is printed out. And therefore you have the paper trail for the audit. You have all that. So that's one of the things this misunderstanding about what it means when we talk about electronic voting versus online voting. And that's what my friends at the RAVBM systems keep telling me it's not online voting. Can't you just explain to them that it's not online voting? Yes, but it's not working. Stuart, what have you heard?
STUART SEABORN: I wanted to piggyback on that piece of it, in terms of education really being a problem. We've had these same conversations and our P&A friends in the context of legislative approaches, they hear the same thing over and over again, they have to explain the same thing over and over again. And I actually think the folks at Disability Rights California are starting to reach out to other states. If there was some sort of fraud issue or problem in West Virginia, we would be hearing about that. And states like that have had that in existence for some time. Have you to find that the states that are willing to listen. But a large part of it is a lack of education. That letter that the Secretary of State sent in California, you would think that they run, I guess in some states maybe they don't run elections as judges have said. But they certify every voting machine, every voting system throughout the state has to be certified by the Secretary of State. They showed a woeful level of just lack of education about these systems. And I encourage actually if we have one of the vendors here today.
I'm sure they're doing this to meet with the states, because they certainly aren't hearing it from us. And maybe they'll hear it from other states. The other thing that is a problem, this sometimes happens when things are new. There's a dearth of experts out there that are going to testify publicly about the safety and security of these systems. There are a couple, one of them is the one we used in the North Carolina case. But I was surprised given the fact that states have been up and running with the systems for some time. That it's actually been difficult to find security experts, whether in academia or coming from the voting world, that are willing to kind of testify about the safety and security of stuff. So I would encourage folks at tenBroek and the DRBA, it's probably something to talk about, start circulating names of experts and doing some homework on that.
LUCIA ROMANO: Just to piggyback on that, on UOCAVA, they've been doing that for years now. It's not like we hear big security concerns because all these military voters are voting. It's only an issue with security when it comes to accommodating people with disabilities. And that's highly concerning to me. And you know, our argument in our cases is the Move Edge system has been cleared as far as security. Y'all have done what you do to make sure it's secure and everything is in place. All we're asking is to use that same system. So what's the deal with the security concerns?
LOU ANN BLAKE: I think what Lucia just said is very important to note. Many states that permit UOCAVA voters to return their ballot electronically allow them to do so by email or fax. How secure is that? It is very interesting when we want to extend that to voters with disability, then they start talking about security. So yeah.
EVE HILL: Let's open it up for questions, in case you all have questions because I don't want to run out of time again before the questions.
ATTENDEE: So one thought I have, what you were just saying about the other states, is to create essentially discovery that can be used in all the different cases. That is, get discovery from West Virginia, from all the different states. We've had no problems with security and we do XYZ. And you've got this library to use in every single case.
EVE HILL: Great idea.
LUCIA ROMANO: I know that in our Texas case, I think the judge really was kind of hung up on how is this all going to work? Like it's this complicated kind of thing. Like how are we going to all of a sudden make this available to all these people in our county. Practically how is it going to work. And Eve has been really good to say it's really not that hard though. Like this is being done in multiple states. And we already have a system in Bexar County. More than half of the work is already done. But I think there are other issues at play in Bexar County in terms of the politics of the state, be the politics of you know. If you're a federal court judge, you're thinking of the Fifth Circuit. And you know the 5th Circuit being what it is, our judge I'm sure is very concerned about being appealed. Any decision that he makes. Because he has been on several occasions. So yeah.
EVE HILL: And some of our states, Alabama for example, argued well, you can't require us to extend our UOCAVA electronic voting system to people with disabilities, because the federal government made us do that. And we had to explain, no, actually the federal government made you give them electronic ballots. They didn't make them the federal government did not allow them to return them electronically. You choose to do that. And apparently you think it's fine for them, so it's fine for us as well. Yes?
ATTENDEE: Hi, Rosa from Maryland. And I think I guess I'm looking for some advice and assistance from you all. So in Maryland, we've had to go to the courts over and over and over again. Related to anything on voting. But recently we went to the Maryland General Assembly because there's something outright prohibiting ballot return in this statute. And we got some people who were willing to work with us, and then ultimately they said you should really study the issue. In order to get at the people that are fear mongers, misinformation, go ahead and have the general assembly commission a study, because then we're going to get all that misinformation debunked.
So we had a study built. And then we got a whole bunch of calls. I got the calls, people in Maryland General Assembly got the calls said what are you doing? Are you working with China? They think we're working with China to sell our elections because we're trying to get the right to vote. And ultimately the Maryland General Assembly, they succumbed. They decided to study the study, in a summer study, which makes no sense. In the circular file.
As we're trying to figure out what do we do now, it was the UOCAVA voters together. We worked with experts, we worked with folks, there's an entity that has did some security testing and they were willing to test it. We couldn't even get before the right people to provide them the evidence to show them that the misinformation campaign was out there and they were succumbing to it. What did these other states do right or did they just sneak in? What happened?
LOU ANN BLAKE: Well, that's a really good question. And a really tough question. We are starting to see more opposition unfortunately to electronic return. I think it's taken this long for common cause to kind of get geared up. And we are seeing opposition in Illinois now. We're expecting it in New Jersey. Probably New York. So I think we really need to get the states that have been doing this successfully like West Virginia, and we need to get some of the security experts out there that do support electronic return. And we really need to do a massive education program. Because you know, and unfortunately the media is no help to us here.
They tend to pay attention to the fear monger like the Hollermans of the world. Even though he has been totally discredited by a court in Pennsylvania. And you know, it's just a really tough, tough road ahead, I think, I'm afraid. But you know, I think education is really the key here. And I think we really need voters with disabilities to really come out and be really strong in their support of this. It's going to take a massive, massive advocacy effort. Because I think you know the common cause, and unfortunately even the League of Women Voters are starting to panic. And they're thinking that they're going to save U.S. elections. I think we need to be really assertive here.
EVE HILL: You know me, I usually suggest litigation. The judges are unfortunately subject to the same they read the papers. And the papers are enthralled by the misinformation about security. It's a much sexier story than it all worked fine. It's a very short and boring story to say it all worked fine. It's much more interesting to stay a number of dreamy ways you've dreamed up that it could go wrong. So I can't even get the right information to be accepted by judges, who, if they have any bit of information on the other side, will say well, either I'm going with the information on the other side or I just don't know and it's not strong enough for me to be able to go with you. So it's become a problem. The misinformation problem that we have nationwide right now is a problem in this as well.
LUCIA ROMANO: I was going to say unfortunately even with experts, we're in a period of time where you can present people with scientific fact, and it doesn't work. So I agree with Lou Ann, in terms of educating people out there. But we have to do it in a way that's catchy, brief, and punchy. And we can only do that with the help of people with lived experience. Because it's their stories that really need to be the light on this topic. And I think really that's the key, because we can have all these experts. We can go and try and explain and do all this stuff. That's not going to work. It has, I mean, like this woman said, like, all you have to say is China. China is trying to take over. Literally, that's four words, and it's sold everybody that this is a problem. We have a security issue. We have to be as catchy and as compelling and brief with our information, because that's how people get information now. And really Twitter, you know, five words and that's it. So I think that's important to think about.
DOUG TOWNE: I'm going to say something politically incorrect so I'm not speaking for access Ready. I'm speaking for myself. Y'all are missing the point on security. It is the Republican Party that is concerned about their own security. And their own position. They're not concerned about the security of the vote. They're concerned about their security and they're staying in office. That's the security they're concerned about. Because don't you know that all people with disabilities are democrats? Right? So that's my politically incorrect comment.
EVE HILL: I'll take that. But I must say I wish my liberal friends would stop accusing me of being on the side of undermining elections.
ATTENDEE: Standards to remote ballot marking tools, return it all would be the nice way to normalize it as an option.
EVE HILL: I don't think they've come up with a standard yet. They haven't done that yet.
ATTENDEE: Dan Goldstein again. I wonder whether instead of just accepting that the media is not helping us, whether we've tried submitting an op ed to the Times on this movement to disenfranchise voters with disabilities. What we've approached USA Today, their editorial page has often been very favorable to us. Whether it would be considered getting a piece in Politico online. I don't think we just have to lie back and take it.
EVE HILL: Well, we're not lying back and taking it. But no. We haven't tried those things, so thank you. I'll add those to the list. Or Lou Ann will add them to the list. Anything else that anybody wants to add from the panel before we wrap up? All right, thank you all so much.
[ Applause ]
ATTENDEE: Thank you so much to my co panelists. This was a wonderful panel. One final presentation before we get to eat. We have with us today the platinum sponsor of our symposium who happens to be Aaron Wilson, and his company, Enhanced Voting. Aaron is an elections security expert. He's a rare individual, elections security expert who actually understands and appreciates accessibility. His accessible vote by mail system is something that we have been providing Aaron feedback on for a number of years now. And he's always been great to work with.
And we also have with Aaron, Doug Towne who we just heard from, the politically incorrect Doug Towne. And who is also a sponsor of the symposium, Access Ready and Doug is the CEO of Access Ready. Welcome both Aaron Wilson and Doug Towne.
[ Applause ]
DOUG TOWNE: Well, thanks, Lou Ann, and thanks to everybody. A couple of things. First of all, a lot of things have been said about some of the great advocates that we've lost in the last few months. And I just want to mention that one name that hasn't been mentioned is Bobby Silverstein. Who passed away back in November. Bobby is often looked to as the guy behind the scenes on the ADA and so many pieces of legislation. And he was Access Ready's chief public policy advisor until he passed suddenly. So I'm sure Bobby is looking in, because otherwise he would have been here. I'm sure. So who is Access Ready? Access Ready is an organization that works solely on communications technologies and their accessibility or lack thereof.
I'm also happen to say that Eve Hill is our ADA counsel on a number of these things. If you go to our site, accessready.org you'll find that she wrote our legal positions on accessibility for inclusion in all settings. And that's who Access Ready is. I want to introduce Aaron Wilson. We, as an advocacy organization, we also do a lot of consulting with technology companies and we also work on developing new technologies. So we have been working with Enhanced Voting for about the past year. And that's why I'm here with Aaron today. Aaron, do you want to talk about who Enhanced Voting is?
AARON WILSON: Thanks for having me today. I'm super excited to be here. I've only been able to be here the last few hours and I have to leave tonight because my son is going on a field trip tomorrow that I have to be there for. I've appreciated in the limited amount of time I've been here and really looking forward to addressing some of the things that the last panel talked about. Enhanced Voting was actually, it's been a long journey for me. I've been in election technology since 2005 when I was graduating college. And started working for the Florida Division of Elections and I started testing voting equipment. I'm a software programmer and along the way became a security expert and being in elections that meant I became an elections security expert. I've worked for a couple of different companies along the way and eventually launched Enhanced Voting full time in 2021.
The work I've done for Enhanced Voting goes back to 2013 when I built an electronic ballot delivery platform for UOCAVA voting and in 2018 we expended into providing accessible ballot as well. We're in 13 states as well. In this year we're excited the first state we're providing electronic return and I'll talk a lot about that as we continue to go through this. But looking forward to answering some questions and hopefully addressing some of the things from the last panel.
DOUG TOWNE: Thanks Aaron. So talking about accessible voting, one of the issues that I see out there, is there is resistance to the entire elections system being accessible. The ADA requires it, there is a lot of legal standing for it. I'll give you an example. In discussions with election official from the largest single voting district in the country, anybody know who that is? LA. They have something like 6,000 precincts or something crazy like that. And talking to them about accessible poll books, they said, they want that to be accessible too? Well, yeah. The whole system should be accessible. From both sides. Because I think as a blind person I should be able to be a poll worker if I want to be. Aaron, do you have any thoughts about the resistance?
AARON WILSON: Yeah, I think in general, election officials are very risk averse group. I see that from in every facet of working with them. So change is always a struggle for them. Change in their procedures, change in their policies. Some of this pushback is just kind of how they're wired and you just have to show them, as the last panel talked about. It's been done before. It's not as hard as it may seem. Just because it's new to you doesn't mean it's new entirely to election administration. And it really helps to get them it's a very close knit group. If one of their friends is doing it in a different state, you can often kind of make head way doing that. It's a very risk averse, very hesitant to change, very easily swayed by any sort of fear. They do not want to be in the newspaper. That is the worst fear for an election official is to have something go wrong on election day that puts them in the spotlight.
They like to be in the background, and not they're not in the foreground. One of the things, every once in a while you'll find an election official who wants to be an innovator and they last about four years in the industry. So if you find them, use them. Get to know them. Do some things in their county and their state. But they don't last very long. Most of the folks in this industry serve as election officials, and they are very good people and they managed 2020 very well. But they seek stability and not very much change.
DOUG TOWNE: So a lot of what we know has to happen and we've already talked about this in the last panel and I've heard it throughout the day here by the way I've been sitting and listening to all the attorneys in this room and I am truly scared. So you've got me convinced that we need to be worried. But we know that state and federal laws have to change. And electronic voting, electronic ballot return, and this whole thing about security. And Aaron is an expert. So I would like him to talk about security and that bugaboo which seems to be the big defense
ATTENDEE: I'll try and keep it relatively brief and definitely not as technical as I can. The fact of the matter is electronic return is a higher security risk by nature than paper return. Obviously we can talk about those issues with paper, issues with paper return. But doing electronic return introduces some unique security risk. Just to jump ahead to the punch line, we can mitigate those risks. But we do need to understand them as a group so we can understand how we can mitigate them. All cybersecurity is risk mitigation. This whole idea of saying no to something, completely, without any conversation, which is what a lot of the academics are doing, is very anti cybersecurity. Cybersecurity isn't just you don't do it. It's a how do we mitigate risk. It's a risk mitigation process.
When we talk about doing an electronic return, we need to go back to that conversation we need to understand what the risks are and what mechanisms we have today to mitigate them. So obviously there's always room for improvement so what we have today could be improved. What Lou Ann mentioned earlier about the Election Guard library from Microsoft is in my opinion, the best way we know how right now to mitigate risk. But let me just go through it. One you're introducing a voter's personal computer. There's all sorts of potential for a personal computer to have malware, things that can manipulate the ballot. So you can be making selection you think you're making, your computer can be swapping it and sending it to the server. The server is controlled by somebody. Typically Microsoft, Amazon, Google. Some sort of server somewhere. You have potential manipulation there. Flat out deletion. Or the county will take over at some point and you have potential manipulation at the county level.
All these things are risk. What can we do to mitigate them? The Election Guard library is a unique way of encrypting the ballot from the voter's computer and providing basically proofs that's why it's called end to end verifiable. Because there's proofs at each of these stages that would detect any malfeasance. That's our best hope. We can't always prevent malfeasance especially in the cyber realm, the digital realm. But we can at least detect it. And that should be the bar that we're striving to achieve. So this end to end verifiability is to approve the latest from the standards known as the voluntary voting systems guidelines 2.0. They approved the use of what is known as end to end verifiable technology for use in voting.
And so as you approach this topic, as you get the security pushback, my recommendation is end to end verifiability is the compromise. And when I say "comprise," it doesn't mean that we're sacrificing any accessibility, but it just means that we have a way to mitigate the risk down to the best level we know how. And don't accept this idea that zero risk is the only way that you should move forward. Because there's nothing we do in life that has zero risk. And definitely nothing we do online has zero cyber risk.
DOUG TOWNE: You know, I want to remind everybody that any election that has ever been stolen anywhere, was stolen on paper. At the ballot box. With people stuffing ballot boxes. Talk to the historians in Chicago about that. So, but we have a saying at Access Ready and that is that accessible information in communications technology is no longer rocket science. Right? We know how to do these things. When they say we're not sure that's possible, we're not sure we can do that.
So one of the things that we're looking at, we've been talking with Aaron about, and we're working on, is expanding accessible voting to those who currently don't have access to voting. For example, for the DeafBlind. For people with cognitive and intellectual disabilities. I know Aaron has been looking at this. Do you have any comments how we might go about that? I will say the technology is possible, but it's going to take you all to make the legal changes necessary to allow those technologies to play out.
AARON WILSON: One of the things I'll say about this is, you know, when I first met Doug, there's a lot of 80/20 that happens in elections. You want to service 100% of voters. So the easiest thing to service is 80% then there is 20%. Then there's a solution that comes along that serves 80% of those remaining 20. But there's always that 20 that kind of carries over. And Doug reminded me of some of those groups that are in that final 20% as we continue to move forward on this. And that includes the DeafBlind. So we're looking at several things making our system compatible with note takers and some of the devices that work. They have very limited sort of browser support. So some of the stuff we do with encryption requires technology that isn't necessarily on somebody's low power devices so we're working on that.
Telephone voting, there's not a lot there's a lot of voters out there that just don't have smart phones and computers. And we don't talk about them enough. So telephone voting is the key there. How do we extend this concept of end to end verifiability to voters that would vote over the phone? So those are some of the things that we're looking at. Not just stopping with those who have access to the technology that most of us do.
DOUG TOWNE: So as advocates, a lot of times, even when they don't say it, they're whining about the cost. Now, a lot of times, especially at the county level or at the state level, they don't say it's too expensive, because they know that the response on that is you know, expense is not an excuse for denying somebody a civil right. But cost is something that we know is in the back of their minds and so forth. And accessible vote by mail systems can cost tens of thousands have been costing tens of thousands of dollars in some cases for given jurisdictions and stuff. And Aaron has a solution that he, one of the reasons that we're here is to talk about a fundamental change in the basis of cost of vote by mail and remote voting. So Aaron?
AARON WILSON: Yeah. So the punch line there is we are going to be rolling out a 24.99 dollars price option for counties. That's 2,499 dollars a year, it covers all the elections, all the ballot styles. Thank you.
[ Applause ]
The idea is the one thing the entering into this market, I'm a software technologist. The business of election technology is quite an interesting business. And one of the things that makes it interesting is none of the prices are publicly known. And so one of the things that we wanted to do was to give that transparency and predictability to counties and local jurisdictions that might be looking at this selection. So publishing that price is a big step I'm hoping that others will follow suit in doing that. And of course we want toed to make it something they could offered. Even something that many jurisdictions could put on their credit card as a petty cash option. We believe that price tier will work. And we're looking forward to seeing who takes us up on it. It's going to be a July 1st roll out for that. And I think that was it.
DOUG TOWNE: So from an advocacy point of view, this is a fundamental shift. They can no longer use expense as an excuse. 2,500 dollars is an accounting error in a lot of county government. Right? And the bigger the county, the smaller the error. So I want to kind of pump up the advocates on this. Because we really need to get out there.
[ Applause ]
This is a fundamental change. And it's my hope that other election equipment companies will follow suit. Now, you're going to have pushback, you're going to have people saying oh, you know. But well, we don't know if that will work, and we don't know, you know. But keep in mind that like any technology, as it becomes off the shelf, it gets cheaper. So is anybody surprised that Aaron is able to do this now for 2,500 bucks instead of the 20,000 dollars that other companies want to charge? So we really need to seize the moment on this, I think.
And I want to thank you all. Thank Lou Ann for being gracious and allowing us to come and talk about this. And hope that you all will kind of take this information and go out and run with it. And we'll be happy to take any questions that anybody has. Aaron do you have closing thoughts?
AARON WILSON: Just thank you again. I'm happy to be here, I'm happy to make this announcement here. Just to put in perspective, 2,500 dollars about half the price of the accessible device in the polling location at which they have to buy one per polling location at a minimum. And so that's a pretty easy number, I think. And as Doug mentioned, I think we're able to do it in large part because we've grown to a scale now that we know what the features are that counties and states need. And so those are all built and ready to go. So it looks like Lou Ann is up here.
DOUG TOWNE: Does anybody know what the average hard election system costs for the average county of, say, a million people? Anybody see those numbers? I've worked in this field for about 20 years now. Dallas County for example, their hard election system, when I say hard election system, I'm taking about the machines in the polling places. You're talking about 20 million. So 2,500 bucks.
ATTENDEE: Thank you so much Doug and Aaron. It's wonderful having you. We appreciate your sponsorship of the law symposium. Great news, exciting news. We appreciate the work that you're doing to make voting more accessible for voters with disabilities.
[ Applause ]