The Sixth Circuit Court of Appeals [official site] on Sunday held [opinion, PDF] that a lawsuit brought by blind voters in Ohio against Secretary of State Jon Husted [official website] can proceed.

The suit arises out of a claim that Ohio’s use of a paper-ballot absentee voting system violates Title II of the Americans with Disabilities Act (ADA) [text] by failing to provide reasonable accommodations for the blind. Since the blind must obtain the assistance of a sighted person in order to vote, the plaintiffs contend that the state deprived them of an equal opportunity to vote independently and anonymously.

The plaintiffs have proposed rectifying the issue by having the state provide blind voters with an online alternative and implementing online ballot marking tools like those used by other states to aid the blind. It is for this reason that the US District Court for the Southern District of Ohio [official site] granted defendant’s motion for judgment on the pleadings, finding that the plaintiff’s proposed remedies did not meet the ADA’s requirements since it would fundamentally change the state’s voting system.

The Sixth Circuit, however, was not persuaded by this argument, holding instead that

it is not enough for defendant to merely allege plaintiffs’ proposed remedy undermines these interests. In order to prevail on his affirmative defense, defendant has the burden of production and persuasion to prove that plaintiffs’ proposed accommodation—the ballot marking tools and electronic ballots—would fundamentally alter Ohio’s election system by not “correctly, accurately, and continuously register[ing] and record[ing] every vote cast.” Ohio Rev. Code §3506.10. Without proof that the proposed ADA accommodation is unreasonable or incompatible with Ohio’s election system, defendant’s affirmative defense based on an allegation, alone, is insufficient.

The Sixth Circuit remanded the case back to the district court where the case will proceed to discovery in what the appellate court acknowledged is a “highly fact-specific” claim of reasonableness under the ADA.