Disabled lose again in battle over voting
A federal court denies blind voters' request to require touch-screens but will hear their appeal.

By Kevin P. Connolly | Orlando Sentinel Posted July 26, 2005

DELAND Advocates for the blind suffered another legal setback Monday: The U.S. Court of Appeals for the 11th Circuit refused to order Volusia County to immediately purchase disability-accessible touch-screen voting machines for the fall elections.

"It's a victory," Volusia County Attorney Dan Eckert said Monday.

However, the Atlanta-based court agreed to hear the National Federation of the Blind's appeal of last week's ruling from U.S. District Judge John Antoon II, who denied the NFB's request for court-ordered touch-screens in Volusia.

An appeal of Antoon's decision will be expedited to determine whether he used the correct legal standard, three judges Joel Fredrick Dubina, Julie E. Carnes and William Holcombe Pryor Jr. said in their two-page response Monday.

If the NFB wins the appeal, the nonprofit organization for the visually disabled will be "entitled" to have the U.S. District Court reconsider its request for a preliminary injunction for paperless touch-screens, the three judges wrote.

The judges stipulated they would not "address the merits of the controversy."

"We are studying the court's ruling," said Daniel F. Goldstein, a partner with the Baltimore-based firm of Brown, Goldstein & Levy and lead attorney for the NFB and other plaintiffs. "We have not decided exactly what options we will pursue, but we will continue to pursue the case."

Attorneys for the NFB asked the 11th Circuit for an order requiring Volusia County to purchase touch-screens by Monday, which they said would ensure delivery by Friday, the "-dead date" to implement touch-screens for Volusia's next election.

Early voting for the Oct. 11 city elections begins Sept. 26.

Monday's decision outlines a timeline for the appeal that takes it well past the "-dead date."

The NFB has 21 days to file its briefs. After that, the county will have 21 days to file its documents. The NFB will have seven days to respond. Then oral arguments will be set.

Attorneys for the NFB, its state affiliate and five blind voters from Volusia filed a federal lawsuit against Volusia County on July 5 after the County Council in June rejected a largely grant-funded contract to spend $776,935 for 210 accessible touch-screens and related equipment.

A majority of County Council members expressed concerns about touch-screens, the only devices certified in Florida to meet new accessibility requirements, because the devices don't print paper ballots during voting.

Blind and visually disabled voters can use touch-screens without assistance by using headphones, listening to an "audio ballot" and making ions with a keypad.

But county officials dispute claims from the NFB and state officials that they must implement such machines for elections after July 1 under state law. County officials maintain that the deadline for accessible voting is Jan. 1 under the federal Help America Vote Act.

County officials say the federal deadline also increases the chances that accessible voting equipment with a paper trail will get approved by state elections officials.

On Thursday, Antoon ruled against NFB's request for a preliminary injunction to force the county to purchase touch-screens. He said he could not conclude the NFB had a "substantial likelihood of success," one of four factors that must be met for a preliminary injunction.

On Monday, the three judges wrote that, in order to resolve the appeal, they must decide whether Antoon applied the law correctly when he denied the NFB attorneys on the "grounds that they had not shown a substantial likelihood of success on the merits."