U.S. District Court Eastern District of Michigan (Detroit) CIVIL DOCKET FOR CASE #: 2:20−cv−11023−GAD−MJH

CLOSED

Powell et al v. Benson et al Assigned to: District Judge Gershwin A. Drain Referred to: Magistrate Judge Michael J. Hluchaniuk Cause: 42:1981 Civil Rights
Plaintiff

Date Filed: 04/25/2020 Date Terminated: 05/19/2020 Jury Demand: None Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: Federal Question

Michael Powell

represented by David S. Mittleman Grewal Law, PLLC 2290 Science Parkway Okemos, MI 48864 517−393−3000 Email: dmittleman@4grewal.com ATTORNEY TO BE NOTICED

Eve Lynn Hill Brown Goldstein & Levy LLP 120 East Baltimore Street Suite 1700 Baltimore, MD 21202 410−962−1030 Fax: 410−385−0869 Email: ehill@browngold.com ATTORNEY TO BE NOTICED

Melissa Nyman Nyman Turkish PC 3009 Douglas Boulevard Suite 200 Roseville, CA 95661 916−218−4340 Fax: 916−218−4341 Email: Melissa.Nyman@NymanTurkish.com ATTORNEY TO BE NOTICED

Ryan Thomas Kaiser Nyman Turkish, PC 20750 Civic Center Dr. Suite 290 Southfield, MI 48076 877−529−4773 Fax: 248−262−5024 Email: ryan.kaiser@nymanturkish.com ATTORNEY TO BE NOTICED

Jason M. Turkish Nyman Turkish PC 20750 Civic Center Drive Suite 290 Southfield, MI 48076 877−529−4773 Fax: 248−262−5024 Email: jason.turkish@nymanturkish.com ATTORNEY TO BE NOTICED

Plaintiff Fred Wurtzel

represented by

Plaintiff National Federation of the Blind of Michigan
V. Defendant Jocelyn Benson
Defendant Jonathan Brater

David S. Mittleman (See above for address) ATTORNEY TO BE NOTICED
Eve Lynn Hill (See above for address) ATTORNEY TO BE NOTICED
Melissa Nyman (See above for address) ATTORNEY TO BE NOTICED
Ryan Thomas Kaiser (See above for address) ATTORNEY TO BE NOTICED
Jason M. Turkish (See above for address) ATTORNEY TO BE NOTICED
represented by Eve Lynn Hill (See above for address) ATTORNEY TO BE NOTICED
Jason M. Turkish (See above for address) ATTORNEY TO BE NOTICED
represented by Erik A. Grill Michigan Department of Attorney General PO Box 30736 Lansing, MI 48909 517−335−7659 Email: grille@michigan.gov ATTORNEY TO BE NOTICED
Heather S. Meingast MI Dept of Attorney General Clee P.O. Box 30736 Lansing, MI 48909 517−335−7659 Email: meingasth@michigan.gov ATTORNEY TO BE NOTICED
Jeanmarie Miller State of Michigan Department of Attorney General P.O. Box 30736 525 W. Ottawa St. Lansing, MI 48909 517−373−6434 Fax: 517−373−2454 Email: MillerJ51@michigan.gov ATTORNEY TO BE NOTICED
represented by

Erik A. Grill (See above for address) ATTORNEY TO BE NOTICED
Heather S. Meingast (See above for address) ATTORNEY TO BE NOTICED
Jeanmarie Miller (See above for address) ATTORNEY TO BE NOTICED

Date Filed 04/25/2020
04/25/2020
04/27/2020 04/27/2020 04/27/2020
04/27/2020 04/27/2020
04/27/2020 04/27/2020 04/27/2020 04/27/2020 04/27/2020 04/28/2020 04/28/2020

# Docket Text
1 COMPLAINT filed by All Plaintiffs against All Defendants. Plaintiff requests summons issued. Receipt No: AMIEDC−7763098 − Fee: $ 400. County of 1st Plaintiff: Macomb − County Where Action Arose: Macomb − County of 1st Defendant: Ingham. [Previously dismissed case: No] [Possible companion case(s): None] (Turkish, Jason) (Entered: 04/25/2020)
2 MOTION for Preliminary Injunction by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1− Declaration of Michael Powell, # 3 Exhibit 2− Declaration of Fred Wurtzel, # 4 Exhibit 3− Esshaki v. Whitmer) (Turkish, Jason) (Entered: 04/25/2020)
3 SUMMONS Issued for *Jocelyn Benson* (SKra) (Entered: 04/27/2020)
4 SUMMONS Issued for *Jonathan Brater* (SKra) (Entered: 04/27/2020)
A United States Magistrate Judge of this Court is available to conduct all proceedings in this civil action in accordance with 28 U.S.C. 636c and FRCP 73. The Notice, Consent, and Reference of a Civil Action to a Magistrate Judge form is available for download at http://www.mied.uscourts.gov (SKra) (Entered: 04/27/2020)
5 NOTICE of Appearance by Ryan Thomas Kaiser on behalf of All Plaintiffs. (Kaiser, Ryan) (Entered: 04/27/2020)
6 ORDER Requiring Service and Setting Response and Hearing Date re 2 MOTION for Preliminary Injunction filed by Fred Wurtzel, Michael Powell., Set Motion and R&R Deadlines/Hearings as to 2 MOTION for Preliminary Injunction :( Response due by 4/30/2020, Motion Hearing set for 5/1/2020 at 4:00 PM before District Judge Gershwin A. Drain, Reply due by 5/1/2020) [SEE ORDER FOR DETAILS] Signed by District Judge Gershwin A. Drain. (TMcg) (Entered: 04/27/2020)
7 NOTICE of Appearance by Heather S. Meingast on behalf of Jocelyn Benson, Jonathan Brater. (Meingast, Heather) (Entered: 04/27/2020)
8 NOTICE of Appearance by Erik A. Grill on behalf of Jocelyn Benson, Jonathan Brater. (Grill, Erik) (Entered: 04/27/2020)
9 CERTIFICATE of Service/Summons Returned Executed. Jonathan Brater served on 4/27/2020, answer due 5/18/2020. (Attachments: # 1 Exhibit 1− Service Email) (Turkish, Jason) (Entered: 04/27/2020)
10 CERTIFICATE of Service/Summons Returned Executed. Jocelyn Benson served on 4/27/2020, answer due 5/18/2020. (Attachments: # 1 Exhibit 1− Service Email) (Turkish, Jason) (Entered: 04/27/2020)
11 NOTICE of Appearance by David S. Mittleman on behalf of All Plaintiffs. (Mittleman, David) (Entered: 04/27/2020)
12 NOTICE of Appearance by Melissa Nyman on behalf of All Plaintiffs. (Nyman, Melissa) (Entered: 04/28/2020)
13 AMENDED COMPLAINT filed by All Plaintiffs against All Defendants. NEW PARTIES ADDED. (Turkish, Jason) (Entered: 04/28/2020)

04/29/2020 04/29/2020 04/29/2020
04/29/2020
04/30/2020
04/30/2020 04/30/2020 04/30/2020 04/30/2020 04/30/2020 05/01/2020 05/01/2020 05/01/2020 05/01/2020 05/01/2020 05/04/2020 05/04/2020
05/11/2020

14 NOTICE of Appearance by Eve Lynn Hill on behalf of National Federation of the Blind of Michigan, Michael Powell, Fred Wurtzel. (Hill, Eve) (Entered: 04/29/2020)
15 NOTICE by National Federation of the Blind of Michigan, Michael Powell, Fred Wurtzel re 2 MOTION for Preliminary Injunction Notice of Joining Co−Plaintiffs' Motion for Preliminary Injunction (Hill, Eve) (Entered: 04/29/2020)
16 Ex Parte MOTION for Temporary Restraining Order by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1− Military and Overseas Voter Manual, # 3 Exhibit 2− Declaration of Lou Ann Blake, # 4 Exhibit 3− Absentee Voting in Michigan) (Turkish, Jason) (Entered: 04/29/2020)
17 RESPONSE to 2 MOTION for Preliminary Injunction filed by Jocelyn Benson, Jonathan Brater. (Attachments: # 1 Index of Exhibits Exhibit List, # 2 Exhibit A. Declaration of Jonathan Brater, # 3 Exhibit B. McNeilly v Land) (Grill, Erik) (Entered: 04/29/2020)
18 REPLY to Response re 2 MOTION for Preliminary Injunction , 16 Ex Parte MOTION for Temporary Restraining Order filed by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1− Declaration of Fred Wurtzel, # 3 Exhibit 2− Declaration of Anne Taylor (NFB v. Lamone)) (Turkish, Jason) (Entered: 04/30/2020)
19 NOTICE TO APPEAR: Telephonic Status Conference set for 4/30/2020 at 3:30 PM before District Judge Gershwin A. Drain (TMcg) (Entered: 04/30/2020)
20 SUPPLEMENTAL BRIEF re 18 Reply to Response to Motion, regarding additional exhibit filed by Michael Powell, Fred Wurtzel. (Attachments: # 1 Exhibit 1− Genesee County Notice) (Kaiser, Ryan) (Entered: 04/30/2020)
Minute Entry for proceedings before District Judge Gershwin A. Drain: Telephonic Status Conference held on 4/30/2020 (Court Reporter: Merilyn Jones) (TMcg) (Entered: 04/30/2020)
21 ORDER Appointing the Honorable Judith E. Levy as Facilitator re 1 Complaint. Signed by District Judge Gershwin A. Drain. (TMcg) (Entered: 04/30/2020)
Minute Entry for proceedings before District Judge Judith E. Levy: Settlement Conference held on 4/30/2020 Disposition: To be continued on 5/1/2020 (Court Reporter: None Present, Not on the Record) (WBar) (Entered: 05/01/2020)
22 NOTICE Concerning Zoom Virtual Court/Chambers Proceedings re 6 Order, Set Motion and R&R Deadlines/Hearings. (TMcg) (Entered: 05/01/2020)
23 NOTICE by All Plaintiffs re 18 Reply to Response to Motion, regarding supplemental authority (Attachments: # 1 Exhibit 1− Lucas v. Townsend) (Turkish, Jason) (Entered: 05/01/2020)
TEXT−ONLY NOTICE:Motion Hearing on 5/1/2020 is Cancelled re 6 Order,,, Set Motion and R&R Deadlines/Hearings,, (TMcg) (Entered: 05/01/2020)
Minute Entry for proceedings before District Judge Judith E. Levy: Settlement Conference held on 5/1/2020 Disposition: Settlement reached (Court Reporter: None Present, Not on the Record) (WBar) (Entered: 05/01/2020)
24 STIPULATION AND Consent Order Resolving Plaintiffs' 16 Ex Parte MOTION for Temporary Restraining Order. Signed by District Judge Gershwin A. Drain. (TMcg) (Entered: 05/01/2020)
25 NOTICE TO APPEAR BY TELEPHONE: Status Conference set for 5/4/2020 at 4:00 PM before District Judge Gershwin A. Drain (TMcg) (Entered: 05/04/2020)
Minute Entry for proceedings before District Judge Gershwin A. Drain: Telephonic Status Conference held on 5/4/2020, ( TELEPHONIC Scheduling Conference set for 5/8/2020 at 3:00 PM before District Judge Gershwin A. Drain) (Court Reporter: Merilyn Jones) (TMcg) (Entered: 05/04/2020)
Minute Entry for proceedings before District Judge Gershwin A. Drain: ZOOM Telephonic Scheduling Conference held on 5/11/2020, Telephonic Status Conference held on 5/11/2020 (Court Reporter: Merilyn Jones) (TMcg) (Entered: 05/11/2020)

05/12/2020
05/13/2020 05/13/2020 05/13/2020 05/14/2020 05/15/2020 05/19/2020 06/26/2020 06/29/2020
06/29/2020 06/29/2020 06/29/2020 07/02/2020 07/02/2020 07/02/2020 07/06/2020 07/06/2020 07/07/2020

26 SCHEDULING ORDER Regarding Preliminary Injunction :, Set Motion and R&R Deadlines/Hearings as to 2 MOTION for Preliminary Injunction :( Response due by 5/27/2020, Motion Hearing set for 6/2/2020 10:00 AM before District Judge Gershwin A. Drain) Signed by District Judge Gershwin A. Drain. (Refer to image for additional dates) (TMcg) (Entered: 05/12/2020)
27 NOTICE TO APPEAR BY TELEPHONE: Status Conference set for 5/14/2020 at 2:00 PM before District Judge Gershwin A. Drain (TMcg) (Entered: 05/13/2020)
28 OBJECTION to Plaintiffs' Notice of Deposition by Jocelyn Benson, Jonathan Brater. (Attachments: # 1 Index of Exhibits Exhibit List, # 2 Exhibit A. Plaintiffs' Notice of Deposition) (Grill, Erik) (Entered: 05/13/2020)
29 NOTICE by All Plaintiffs re 28 Objection (Attachments: # 1 Exhibit 1, # 2 Exhibit 2) (Turkish, Jason) (Entered: 05/13/2020)
Minute Entry for proceedings before District Judge Gershwin A. Drain: (Zoom) Telephonic Status Conference held on 5/14/2020 (Court Reporter: Merilyn Jones) (TMcg) (Entered: 05/14/2020)
30 ORDER Overruling Defendants' 28 Objection to Plaintiffs' Notice of Deposition re Status Conference. Signed by District Judge Gershwin A. Drain. (TMcg) (Entered: 05/15/2020)
31 CONSENT DECREE ORDER re 1 Complaint, filed by Fred Wurtzel, Michael Powell. Signed by District Judge Gershwin A. Drain. (TMcg) (Entered: 05/19/2020)
32 MOTION Status Conference re 31 Order unopposed by All Plaintiffs. (Attachments: # 1 Exhibit 1− Letter to Opposing Counsel) (Turkish, Jason) (Entered: 06/26/2020)
33 MOTION to Enforce Judgment and for Civil Contempt by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1− May 8, 2020 Transcript, # 3 Exhibit 2− June 26, 2020 Grill Email, # 4 Exhibit 3− June 26, 2020 Brater Email, # 5 Exhibit 4− May 14, 2020 Transcript, # 6 Exhibit 5− Email Exchange) (Turkish, Jason) (Entered: 06/29/2020)
34 NOTICE TO APPEAR BY VIDEO CONFERENCE: Status Conference set for 7/2/2020 03:00 PM before District Judge Gershwin A. Drain (TMcg) (Entered: 06/29/2020)
35 Defendants' Status Report REPORT by Jocelyn Benson, Jonathan Brater (Grill, Erik) (Entered: 06/29/2020)
36 Defendants' Amended Status REPORT by Jocelyn Benson, Jonathan Brater (Attachments: # 1 Index of Exhibits Exhibit List, # 2 Exhibit A. Request for Proposal) (Grill, Erik) (Entered: 06/29/2020)
37 NOTICE TO APPEAR BY VIDEO CONFERENCE: Status Conference set for 7/7/2020 at 2:00 PM before District Judge Gershwin A. Drain (TMcg) (Entered: 07/02/2020)
Minute Entry for proceedings before District Judge Gershwin A. Drain: ZOOM Telephonic Status Conference held on 7/2/2020 (Court Reporter: Merilyn Jones) (TMcg) (Entered: 07/02/2020)
Set Deadlines/Hearings: TELEPHONIC ZOOM Status Conference reset for 7/7/2020 at 4:00 PM before District Judge Gershwin A. Drain (TMcg) (Entered: 07/02/2020)
Set Deadlines/Hearings: Status Conference reset for 7/7/2020 at 2:00 PM before District Judge Gershwin A. Drain (TMcg) (Entered: 07/06/2020)
38 NOTICE of Appearance by Jeanmarie Miller on behalf of Jocelyn Benson, Jonathan Brater. (Miller, Jeanmarie) (Entered: 07/06/2020)
39 NOTICE by Jocelyn Benson, Jonathan Brater re Set Deadlines/Hearings, 34 Notice to Appear Objections to Plaintiffs' Proposed Order (Attachments: # 1 Index of Exhibits Exhibit List, # 2 Exhibit 1. Declaration of James Colangelo, # 3 Exhibit 2. Declaration of Andrew Mason, # 4 Exhibit 3. Request for Proposal, # 5 Exhibit 4. Proposed order) (Miller, Jeanmarie) (Entered: 07/07/2020)

07/07/2020 07/07/2020 07/08/2020 07/09/2020 07/12/2020
07/13/2020
07/13/2020
07/13/2020
07/13/2020 07/13/2020

Minute Entry for proceedings before District Judge Gershwin A. Drain: Telephonic Status Conference held on 7/7/2020, ( ZOOM TELEPHONIC Status Conference set for 7/8/2020 at 2:00 PM before District Judge Gershwin A. Drain) (Court Reporter: Merilyn Jones) (TMcg) (Entered: 07/07/2020)
40 NOTICE TO APPEAR BY VIDEO CONFERENCE: Status Conference set for 7/8/2020 at 2:00 PM before District Judge Gershwin A. Drain (TMcg) (Entered: 07/07/2020)
Minute Entry for proceedings before District Judge Gershwin A. Drain: Zoom Telephonic Status Conference held on 7/8/2020 (Court Reporter: Leann Lizza) (TMcg) (Entered: 07/08/2020)
41 NOTICE TO APPEAR BY VIDEO CONFERENCE: Status Conference set for 7/10/2020 at 2:00 PM before District Judge Gershwin A. Drain (TMcg) (Entered: 07/09/2020)
42 TRANSCRIPT of Status Conference held on April 30, 2020. (Court Reporter: Merilyn Jones) (Number of Pages: 22) The parties have 21 days to file with the court and Court Reporter a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 8/3/2020. Redacted Transcript Deadline set for 8/12/2020. Release of Transcript Restriction set for 10/13/2020. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/www.transcriptorders.com before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Jones, M) (Entered: 07/12/2020)
43 TRANSCRIPT of Status Conference held on May 4, 2020. (Court Reporter: Merilyn Jones) (Number of Pages: 19) The parties have 21 days to file with the court and Court Reporter a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 8/3/2020. Redacted Transcript Deadline set for 8/13/2020. Release of Transcript Restriction set for 10/13/2020. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/www.transcriptorders.com before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Jones, M) (Entered: 07/13/2020)
44 TRANSCRIPT of Status Conference held on May 8, 2020. (Court Reporter: Merilyn Jones) (Number of Pages: 31) The parties have 21 days to file with the court and Court Reporter a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 8/3/2020. Redacted Transcript Deadline set for 8/13/2020. Release of Transcript Restriction set for 10/13/2020. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/www.transcriptorders.com before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Jones, M) (Entered: 07/13/2020)
45 TRANSCRIPT of Motion held on May 14, 2020. (Court Reporter: Merilyn Jones) (Number of Pages: 23) The parties have 21 days to file with the court and Court Reporter a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 8/3/2020. Redacted Transcript Deadline set for 8/13/2020. Release of Transcript Restriction set for 10/13/2020. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/www.transcriptorders.com before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Jones, M) (Entered: 07/13/2020)
Minute Entry for proceedings before District Judge Gershwin A. Drain: Zoom Telephonic Status Conference held on 7/13/2020 (Court Reporter: Leann Lizza) (TMcg) (Entered: 07/13/2020)
46 TRANSCRIPT of Status Conference held on 07/08/2020. (Court Reporter: Leann S. Lizza) (Number of Pages: 28) (Appeal Purposes) The parties have 21 days to file with

07/13/2020
07/13/2020 07/13/2020
07/13/2020 07/15/2020 07/15/2020 07/15/2020 07/15/2020 07/15/2020
07/16/2020 07/16/2020 07/17/2020 07/17/2020

the court and Court Reporter a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 8/3/2020. Redacted Transcript Deadline set for 8/13/2020. Release of Transcript Restriction set for 10/13/2020. Transcript may be viewed at the court public terminal or purchased through the Court Reporter (www.transcriptorders.com) before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Lizza, L.) (Entered: 07/13/2020)
47 TRANSCRIPT of Status Conference held on 07/10/2020. (Court Reporter: Leann S. Lizza) (Number of Pages: 23) (Appeal Purposes) The parties have 21 days to file with the court and Court Reporter a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 8/3/2020. Redacted Transcript Deadline set for 8/13/2020. Release of Transcript Restriction set for 10/13/2020. Transcript may be viewed at the court public terminal or purchased through the Court Reporter (www.transcriptorders.com) before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Lizza, L.) (Entered: 07/13/2020)
48 ORDER Regarding Implementation of Consent Decree 31 Order. Signed by District Judge Gershwin A. Drain. (TMcg) (Entered: 07/13/2020)
49 [STRICKEN] RESPONSE to 33 MOTION to Enforce Judgment and for Civil Contempt filed by Jocelyn Benson, Jonathan Brater. (Attachments: # 1 Index of Exhibits Exhibit List, # 2 Exhibit 1. Declaration of Jonathan Brater, # 3 Exhibit 2. Declaration of Heather Meingast, # 4 Exhibit 3. Declaration of Erik Grill) (Miller, Jeanmarie) Modified on 7/15/2020 (TMcg). (Entered: 07/13/2020)
50 Ex Parte MOTION for Leave to File Excess Pages by Jocelyn Benson, Jonathan Brater. (Miller, Jeanmarie) (Entered: 07/13/2020)
TEXT−ONLY ORDER Denying 50 Ex Parte MOTION for Leave to File Excess Pages filed by Jonathan Brater, Jocelyn Benson. Signed by District Judge Gershwin A. Drain. (TMcg) (Entered: 07/15/2020)
51 MOTION Status Conference by All Plaintiffs. (Attachments: # 1 Exhibit 1− Email Exchange, # 2 Exhibit 2− Demand Letter, # 3 Exhibit 3− Response to Demand Letter, # 4 Exhibit 4− Declaration of Maryann Murad, # 5 Exhibit 5− Email to Apple) (Turkish, Jason) (Entered: 07/15/2020)
52 STIPULATION AND ORDER Regarding Schedulilng Related to Plaintiffs' 33 MOTION to Enforce Judgment and for Civil Contempt Signed by District Judge Gershwin A. Drain. (TMcg) (Entered: 07/15/2020)
TEXT−ONLY ORDER Striking 49 Response to Motionfor Failure to Comply with Page Limit for Motions under the Local Rule for the Eastern District of Michigan. Signed by District Judge Gershwin A. Drain. (TMcg) (Entered: 07/15/2020)
TEXT−ONLY ORDER Directing a Response to 51 MOTION Status Conference filed by Fred Wurtzel, Michael Powell, National Federation of the Blind of Michigan., Set Motion and R&R Deadlines/Hearings as to 51 MOTION Status Conference :( Response due by 6:00 p.m. on 7/16/2020) Signed by District Judge Gershwin A. Drain. (TMcg) (Entered: 07/15/2020)
53 RESPONSE to 51 MOTION Status Conference filed by Jocelyn Benson, Jonathan Brater. (Attachments: # 1 Index of Exhibits Exhibit List, # 2 Exhibit 1. Survey, # 3 Exhibit 2. Dykstra Declaration) (Meingast, Heather) (Entered: 07/16/2020)
54 EXHIBIT 2. Declaration Exhibits re 53 Response to Motion by Jocelyn Benson, Jonathan Brater (Meingast, Heather) (Entered: 07/16/2020)
55 MOTION for Reconsideration re Text−Only Order by Jocelyn Benson, Jonathan Brater. (Miller, Jeanmarie) (Entered: 07/17/2020)
56 MOTION for Leave to File supplemental exhibits by All Plaintiffs. (Attachments: # 1 Exhibit Proposed Exhibit 6, # 2 Exhibit Proposed Exhibit 7) (Turkish, Jason) (Entered: 07/17/2020)

07/20/2020 07/20/2020 07/20/2020 07/21/2020
07/21/2020
07/21/2020 07/28/2020 07/31/2020
07/31/2020

57 RESPONSE to 56 MOTION for Leave to File supplemental exhibits filed by Jocelyn Benson, Jonathan Brater. (Miller, Jeanmarie) (Entered: 07/20/2020)
58 REPLY to Response re 56 MOTION for Leave to File supplemental exhibits filed by All Plaintiffs. (Turkish, Jason) (Entered: 07/20/2020)
59 NOTICE TO APPEAR BY VIDEO CONFERENCE: Status Conference set for 7/21/2020 at 2:30 PM before District Judge Gershwin A. Drain (TMcg) (Entered: 07/20/2020)
60 ORDER Modifying Page Limits 52 Stipulation and Order Regarding Scheduling Related to Plaintiffs' 55 MOTION for Reconsideration, Granting Plaintiffs' 56 MOTION for Leave to File Supplemental Exhibits, Setting Schedule for Status Conference. Signed by District Judge Gershwin A. Drain. (TMcg) (Entered: 07/21/2020)
61 RESPONSE to 33 MOTION to Enforce Judgment and for Civil Contempt filed by Jocelyn Benson, Jonathan Brater. (Attachments: # 1 Index of Exhibits Exhibit List, # 2 Exhibit A. Declaration of Jonathan Brater, # 3 Exhibit B. Declaration of Heather Meingast, # 4 Exhibit C. Declaration of Erik Grill) (Meingast, Heather) (Entered: 07/21/2020)
Minute Entry for proceedings before District Judge Gershwin A. Drain: ZoomTelephonic Status Conference held on 7/21/2020 (Court Reporter: Merilyn Jones) (TMcg) (Entered: 07/21/2020)
62 REPLY to Response re 33 MOTION to Enforce Judgment and for Civil Contempt filed by All Plaintiffs. (Turkish, Jason) (Entered: 07/28/2020)
63 TRANSCRIPT of Status Conference held on 7/02/2020. (Court Reporter: Merilyn Jones) (Number of Pages: 26) The parties have 21 days to file with the court and Court Reporter a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 8/21/2020. Redacted Transcript Deadline set for 8/31/2020. Release of Transcript Restriction set for 10/29/2020. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/www.transcriptorders.com before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Jones, M) (Entered: 07/31/2020)
64 TRANSCRIPT of Status Conference held on 7/07/2020. (Court Reporter: Merilyn Jones) (Number of Pages: 47) The parties have 21 days to file with the court and Court Reporter a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 8/21/2020. Redacted Transcript Deadline set for 8/31/2020. Release of Transcript Restriction set for 10/29/2020. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/www.transcriptorders.com before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Jones, M) (Entered: 07/31/2020)

 
 Case 2:20-cv-11023-GAD-MJH ECF No. 1 filed 04/25/20 PageID.1 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

MICHAEL POWELL, & FRED WURTZEL, individually and on behalf of those similarly situated,

Case No. 20-11023

Plaintiffs,

v.

JOCELYN BENSON, MICHIGAN SECRETARY OF STATE, in her official capacity, &

JONATHAN BRATER, MICHIGAN DIRECTOR OF ELECTIONS, in his official capacity,

Defendants.

/

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Plaintiffs, Michael Powell and Fred Wurtzel (Plaintiffs) hereby sue Jocelyn Benson (Ms. Benson), in her official capacity as Michigan Secretary of State, and Jonathan Brater (Mr. Brater), in his official capacity as Michigan Director of Elections, and state as follows:

INTRODUCTION 1. Plaintiffs bring this lawsuit against Defendants, in their official capacities, to vindicate their rights as individuals with disabilities who have been denied the opportunity to vote privately and independently by absentee ballot, in violation of Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101- 12213, and Article III of the Michigan Persons with Disabilities Civil Rights Act, MCL § 37.1101, et seq. (PDCRA). On the basis of these violations, Plaintiffs seek a declaratory judgment, preliminary and permanent injunctive relief,

Case 2:20-cv-11023-GAD-MJH ECF No. 1 filed 04/25/20 PageID.2 Page 2 of 13
attorney’s fees and costs, and any other available relief. 2. Plaintiffs are blind individuals who are registered to vote in Michigan, and desire
to exercise their right to vote by absentee ballot in an accessible and independent manner; a right universally afforded to Michiganders without disabilities.
3. Although there is readily available technology that would provide Plaintiffs, and other voters who are blind or who have other disabilities that prevent them from reading or writing print (print disabilities), the opportunity to cast their votes through absentee ballots privately, independently, and effectively, as able-bodied individuals may do, Defendants have refused to make this technology available to Plaintiffs.
4. Defendants’ conduct has long been in violation of the ADA and the PDCRA, but the need for immediate implementation of accessible absentee ballots for Plaintiffs and those similarly situated has never been more urgent in light of the global pandemic, which is expected to result in most, if not all, voters in Michigan voting by absentee ballot in upcoming elections.
5. Because individuals without disabilities may cast their votes by absentee ballot privately, independently, and effectively, the ADA and PDCRA require Defendants to provide individuals with disabilities an equal opportunity to do the same.
6. By ignoring the needs and dignity of Plaintiffs and those similarly situated, Defendants have treated them as second-class citizens, unfairly and unjustly ignored their basic rights to security, equality, and dignity, and have unreasonably restricted their fundamental and sacred right to vote. Accordingly, Plaintiffs seeks declaratory relief stating that Defendants’ conduct violates the ADA and the PDCRA, as well as injunctive relief requiring Defendants to immediately introduce accessible absentee ballots that can be completed independently and privately, just as numerous states across the country have already done.
2

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JURISDICTION 7. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1343 because Plaintiffs’ claims arise under the ADA. In addition, the Court has jurisdiction over Plaintiff’s claims for declaratory relief pursuant to 28 U.S.C. §§ 2201-02 and jurisdiction over Plaintiff’s claims for injunctive relief pursuant to 15 U.S.C. § 1116. 8. This Court has supplemental jurisdiction over Plaintiffs’ state law claim pursuant to 28 U.S.C. § 1367, as the claim arises from the same set of operative facts as Plaintiffs’ federal claim. 9. Venue is proper in the Eastern District of Michigan, Southern Division under 28 U.S.C. § 1391 because Plaintiff, Michael Powell is situated within this District, and because the events, acts, and omissions giving rise to Plaintiffs’ cause of action occurred in this District.
PARTIES 10. Plaintiff Michael Powell is a blind individual who is registered to vote in Michigan. Mr. Powell is the current President of the Michigan Affiliate of the National Federation of the Blind.
a. Mr. Powell resides in Warren, MI, and is a regular voter who intends to vote in the upcoming primary and general elections.
b. Mr. Powell would like the option of voting absentee privately and independently from his home, as allowed by Michigan law, in the upcoming primary and general elections.
11. Plaintiff Fred Wurtzel is a blind individual who is registered to vote in Michigan. Mr. Wurtzel is the former President of the Michigan Affiliate of the National Federation of the Blind, and he is the current President of the Capital Region Chapter of the Michigan Affiliate of the National Federation of the Blind. Mr. Wurtzel also currently serves on the board for the
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Michigan Affiliate of the National Federation of the Blind. a. Mr. Wurtzel resides in Lansing Township, MI and is a regular voter. Mr. Wurtzel intends to vote in upcoming primary and general elections. b. Mr. Wurtzel would like the option of voting absentee privately and independently from his home, as allowed by Michigan law, in the upcoming p1 elections. c. In addition, Mr. Wurtzel has communicated his concerns that the current absentee ballot system does not allow for individuals who are blind to vote independently and privately, including attending meetings with Defendants’ staff where he has raised these concerns.
12. Ms. Benson is Michigan’s Secretary of State. In that capacity, Ms. Benson is responsible for oversight of statewide elections. She oversees Michigan’s absentee voting program and maintains and operates the Secretary of State’s voter information website.2 As Michigan’s chief elections official, Ms. Benson is responsible for ensuring compliance with the requirements of applicable state and federal law, including the ADA. Plaintiffs bring this action against Ms. Benson in her official capacity as Secretary of State.
13. Mr. Brater is the Director of the Michigan Bureau of Elections. In that role, Mr. Brater oversees the administration of elections statewide. Plaintiffs bring this action against Mr. Brater in his official capacity as Michigan Director of Elections.
FACTUAL ALLEGATIONS Absentee Voting in Michigan 14. In 2018, Michigan voters enshrined the right to vote by absentee ballot without
1 https://www.michigan.gov/sos/0,4670,7-127-1640_9150-513201--m_2017_1,00.html 2 https://mvic.sos.state.mi.us/RegisterVoter
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providing a reason or excuse into the state’s constitution by successful ballot measure. As a result, the right of all Michiganders to vote by absentee ballot is a right guaranteed by the state constitution.
15. Michigan does not require absentee voters to provide a reason for their decision to vote absentee instead of in-person.
16. Michigan voters request absentee ballots through a form that must be filled out and mailed in, faxed, electronically-mailed, or personally delivered to their city or township clerk.
17. Once a voter’s absentee ballot request is processed, Michigan mails a paper absentee ballot to the requesting voter. The only option for Michigan voters, including Plaintiffs, is a paper absentee ballot.
18. Paper absentee ballots are not accessible to Plaintiffs or to other individuals who are blind or have disabilities that limit their ability to access print materials. Blind individuals cannot read the printed text that appears on the absentee ballot. Thus, to vote absentee, Plaintiffs and other blind and print-disabled Michigan voters must rely on the assistance of another person to read and mark their paper absentee ballots for them. Such assistance strips Plaintiffs of the secrecy of their ballots.
19. The paper absentee ballot also forces those who are blind to seek in-person assistance to complete their absentee ballot. Individuals who live alone would be forced to violate the Governor’s Executive Order requiring Michigan citizens to stay home, and would be contrary to state and federal policy encouraging, and in many instances requiring, social distancing to stem the spread of the global pandemic.
20. When Plaintiffs rely on the assistance of another person to mark their paper absentee ballot, the assisting individual must also sign the absentee ballot when it is returned to the designated city of township clerk’s office.
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21. Plaintiffs want the same option for themselves and those similarly situated of voting absentee privately and independently in the May, August, and November 2020 elections that Defendants extend to all other voters.
22. Defendants have been apprised of this ongoing violation of the rights of individuals who are blind by Mr. Wurtzel, as well as other blind individuals, including members of the National Federation of the Blind, and they have refused to bring agency polices into compliance with state and federal law.
Auxiliary Aids and Services for Absentee Voting 23. Auxiliary aids and services exist that would afford Plaintiffs and other blind and print-disabled voters an equal opportunity to vote absentee privately and independently. 24. For example, Maryland has developed an online ballot marking tool that allows voters to view and mark their absentee ballots on their computers. Maryland created the tool so that it would work with screen access software and has extensively tested the tool’s usability for individuals with a variety of disabilities. 25. In the November 2014 election, more than 1,700 Maryland voters with disabilities used the tool to mark their voting selections on their computers, review a summary screen showing their selections, and print out their ballots with their selections marked. 26. Maryland’s online ballot marking tool allows voters who are blind or have other print disabilities to mark their absentee ballots privately and independently. Although the absentee ballot must still be printed, signed, and returned to the voter’s local board of election to be counted, because the signature page prints separately from the ballot, voters need not sacrifice the secrecy of their ballots to receive assistance with signing. 27. Because Maryland is willing to share its online ballot marking tool technology with other states at no charge, implementing the tool would impose only minimal costs for
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Defendants. 28. Alternatively, the Prime III voting system also provides for accessible absentee
voting. Prime III is an accessible electronic voting system that can be used for both in-person and absentee voting. For absentee voting, voters can access their absentee ballots through their web browser and read and mark their ballots on their computers. Voters then print their ballots and mail them back to their local boards of election where their votes are counted.
29. The Prime III has been used in state elections in Oregon, Wisconsin, and New Hampshire. It has also been used in national organization elections such as those of Self Advocates Becoming Empowered, National Society of Black Engineers, and National Council on Independent Living.
30. In September 2015, Prime III was released as open source technology, meaning that it can be used by Defendants, or by any other entity, free of charge.
31. Finally, other states, like Alaska, make available an electronic absentee ballot that can be completed and transmitted using the voter’s computer. Such electronic absentee voting systems can be made accessible for blind voters who use screen access software.
32. Defendants have been asked on numerous occasions to implement accessible absentee ballot systems that would allow Plaintiffs to vote privately and independently, such as offering Maryland’s online ballot marking tool as an example of one that is readily available, but Defendants have refused to provide blind Michigan voters with an auxiliary aid or service that would grant them an equal opportunity to vote absentee.
COUNT I Violations of Title II of the Americans with Disabilities Act 42 U.S.C. § 12131 et seq.
33. Plaintiffs incorporate the allegations in the preceding paragraphs. 34. The Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213, guarantees qualified individuals an equal opportunity to access the benefits of the services, programs, or
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activities of a public entity. 42 U.S.C. § 12132. 35. Title II of the ADA mandates, inter alia, that “no qualified individual with a
disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132.
36. In providing aids, benefits, or services, public entities may not “[a]fford a qualified individual with a disability an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others,” nor may public entities provide qualified individuals with disabilities “an aid, benefit, or service that is not as effective in affording equal opportunity” to gain the same result or benefit as provided to others. 28 C.F.R. § 35.130(b)(1)(ii)(iii).
37. Furthermore, such public entities “shall furnish appropriate auxiliary aids and services where necessary to afford individuals with disabilities, including applicants, participants, companions, and members of the public, 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).
38. Critically, to be effective, the “auxiliary aids and services must be provided in . . . such a way as to protect the privacy and independence of the individual with a disability.” 28 C.F.R. § 35.160(b)(2) (emphasis added).
39. Defendants operate an agency of the State of Michigan, which is a public entity under Title II of the ADA.
40. Absentee voting is a service, program, or activity provided by Defendants. 41. Plaintiffs are individuals with disabilities under the ADA, as they are legally blind. 42. Plaintiffs, and others similarly situated, are registered to vote in Michigan and intend to vote in upcoming elections, and are thus qualified individuals entitled to the protections
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of the ADA. 43. Defendants have failed to meet their obligations to provide voters who are blind or
have print disabilities with an opportunity to vote that is equal to the opportunity provided to other voters. In failing to implement a readily available, accessible absentee voting system, Defendants have refused to provide an auxiliary aid or service and failed to make a reasonable modification necessary to allow Plaintiffs, and those similarly situated, to vote equally. Accordingly, Defendants have excluded and continue to exclude Plaintiffs and those similarly situated from participation in, and denied them the benefits of or otherwise discriminated against them in, its service, program, or activity of absentee voting.
44. As a result of Defendants’ actions, Plaintiffs and those similarly situated have suffered and will continue to suffer irreparable harm: they have suffered and continue to suffer from discrimination and unequal access to Defendants’ programs, services, or activities of absentee voting. If there is no change in the status quo, Plaintiffs and those similarly situated will be denied their right to vote absentee privately and independently in upcoming elections.
45. The need for implementation of an accessible absentee voting system is more pressing than ever. In light of COVID-19, it is reasonably expected that most if not all voters will be required, or will exercise the option, to vote absentee. Critically, many individuals with disabilities do not have assistance in their homes to complete the paper ballot, which will effectively prevent them from voting in upcoming elections all together.
46. In the absence of accessible absentee ballots, individuals who are blind will face the horrific choice of leaving their homes in order to receive in-person assistance voting at their local polling place, thereby facing the threat of severe illness or death, or staying home and foregoing voting all together. Defendants have placed many individuals similarly situated to Plaintiffs in the position of choosing between their health (and perhaps their lives) by voting in-
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person, or foregoing their sacred right to vote all together—a false and illegal choice that violates federal law.
47. Defendants’ failure to meet their obligations to provide blind voters with an equal opportunity to vote absentee is an ongoing and continuous violation of the ADA and its supporting regulations. Unless restrained from doing so, Defendants will continue to violate the ADA. Unless enjoined, Defendants’ conduct will continue to inflict injuries for which Plaintiffs have no adequate remedy at law.
48. The requested alteration could be implemented with minimal cost given the openly available options for allowing independent, private absentee voting, and would not fundamentally alter Defendants’ programs and services. See Hindel v. Husted, 875 F.3d 344, 348 (6th Cir. 2017).
49. Unless the requested relief is granted, Plaintiffs and those similarly situated will suffer irreparable harm in that they will be discriminated against and denied equal access to absentee voting, or forced to risk their health, and possibly their lives, to vote in-person – a program, service, or activity that impacts their ability to participate in one the most fundamental democratic institutions: voting.
50. The ADA authorizes injunctive relief as appropriate to remedy acts of discrimination against persons with disabilities. 42 U.S.C. § 12188(a)(1).
51. Plaintiffs and those similarly situated are entitled to injunctive relief, as well as reasonable attorney’s fees and costs.
COUNT II Violation of Article III of the Michigan Persons with Disabilities Civil Rights Act
MCL § 37.2301 et seq. 52. Plaintiffs incorporate the allegations in the preceding paragraphs. 53. Article III of the Michigan Persons with Disabilities Civil Rights Act (PDCRA) prohibits any person from denying an individual the full and equal enjoyment of the services,
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privileges, or advantages of a place of public services because of a disability that is unrelated to the individual’s ability to utilize and benefit from those services, privileges, or advantages. See M.C.L. § 37.1302.
54. The term “public service” includes an agency managed by or on behalf of the State of Michigan. MCL § 37.1301(b).
55. The PDCRA prohibits state actors, such as Defendants, from denying an individual with a disability “the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation or public service because of a disability that is unrelated to the individual's ability to utilize and benefit from the goods, services, facilities, privileges, advantages, or accommodations or because of the use by an individual of adaptive devices or aids.” MCL § 37.1302(a).
56. Plaintiffs are individuals with disabilities as the term is defined in the PDCRA, as they are legally blind. MCL § 37.1301.
57. Defendants’ refusal to implement accessible absentee ballots that can be completed independently and privately by Plaintiffs and those similarly situated is in direct violation of the PDCRA. In so doing, Defendants continue to deny Plaintiffs and those similarly situated the right to full and equal enjoyment of the right to vote—perhaps the most fundamental and critical right to a healthy and sustainable democracy.
58. Defendants have access to numerous auxiliary aides and tools designed to provide independent and private absentee voting to individuals who are blind or who have print disabilities, which can be implemented with minimal cost.
59. Defendants have long been on notice that their conduct violates state law, but they refuse to conform their policies to the very laws they swore to uphold as the stewards of Michigan’s elections, dismissing the repeated concerns raised by Mr. Wurtzel and other members
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of the National Federation of the Blind. 60. If Defendants do not conform their conduct to the requirements of state law,
numerous individuals similarly situated to Plaintiffs will be totally excluded from the voting process due to an inability to physically access the polls and a lack of assistance at home to complete a paper ballot.
61. The injury suffered by Plaintiffs—effective exclusion from the ballot box, as well as the imminent threat to their health and lives—has no adequate remedy at law. The harm is immediate and ongoing and can only be cured through injunctive relief ordering Defendants to implement an accessible absentee ballot system in time for the upcoming primary and general elections.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs request that this Court enter judgment in their favor and award them the following relief: 1. A preliminary and permanent injunction prohibiting Defendants from violating the ADA and the PDCRA and requiring them to offer a private and independent method of absentee voting that is accessible for Plaintiffs and those similarly situated in time for use by voters in the May 5, 2020 primary elections and in all future elections; 2. A declaration that Defendants have and continue to violate the ADA and the PDCRA; 3. An award of Plaintiffs reasonable attorney’s fees and costs; and 4. Such other and further relief as the Court may deem just and proper.
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Date: April 25, 2020

Respectfully submitted,
/s/ Jason M. Turkish Jason M. Turkish (P76310) Ryan T. Kaiser (P79491) Melissa M. Nyman (CA Bar #293207) NYMAN TURKISH PC 20750 Civic Center Drive, Ste. 290 Southfield, MI 48076 Phone: 248-284-2480 Fax: 248-262-5024 Jason.Turkish@NymanTurkish.com Ryan.Kaiser@NymanTurkish.com Melissa.Nyman@NymanTurkish.com
David Mittleman (P37490) Grewal Law, PLLC 2290 Science Parkway Okemos, MI 48864 Phone: 517-393-3000 Fax: 517-393-3003 dmittleman@4grewal.com
Counsel for Plaintiffs

13

 
 Case 2:20-cv-11023-GAD-MJH ECF No. 2 filed 04/25/20 PageID.14 Page 1 of 34

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

MICHAEL POWELL, & FRED WURTZEL, individually and on behalf of those similarly situated,
Plaintiffs,
v.

Case No. 20-11023
Hon. Gershwin A. Drain Magistrate Judge Michael J. Hluchaniuk
Oral Argument Requested

JOCELYN BENSON, MICHIGAN SECRETARY OF STATE, in her official capacity, &
JONATHAN BRATER, MICHIGAN DIRECTOR OF ELECTIONS, in his official capacity,
Defendants.
/

PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

NOW COMES Plaintiffs, Michael Powell and Fred Wurtzel (Plaintiffs), by and

through undersigned counsel, and hereby move this Honorable Court for a Preliminary

Injunction pursuant to Federal Rule of Civil Procedure 65 and Local Rule 65.1 in

order to prevent irreparable injury to Plaintiffs and those similarly situated. Defendant

Jocelyn Benson, in her official capacity as Michigan Secretary of State, and Defendant

Jonathan Brater, in his official capacity as the Director of the Michigan Bureau of

Elections, have refused to provide blind Michigan voters with accessible absentee

ballots that can be completed privately and independently in violation of Title II of the

Americans with Disabilities Act of 1990, 42 U.S.C. § 12131, et seq. and Article III of

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the Michigan Persons with Disabilities Civil Rights Act, MCL § 37.1301, et seq. In

support of this motion, Plaintiffs rely on the Complaint, the attached brief, and the

attached exhibits.

WHEREFORE, for all the reasons set forth in this Motion, the Complaint [ECF

#1], and the attached brief, Plaintiffs hereby request that this Honorable Court order

Defendants to immediately implement an absentee voting system that is accessible to

individuals who are blind, and which can be completed independently and privately in

order to bring their conduct into compliance with State and Federal Law.

Dated: April 25, 2020

Respectfully submitted,
/s/ Jason M. Turkish Jason M. Turkish (P76310) Ryan T. Kaiser (P79491) Melissa M. Nyman (CA Bar #293207) NYMAN TURKISH PC 20750 Civic Center Drive, Ste. 290 Southfield, MI 48076 Phone: 248-284-2480 Fax: 248-262-5024 Jason.Turkish@NymanTurkish.com Ryan.Kaiser@NymanTurkish.com Melissa.Nyman@NymanTurkish.com
David Mittleman (P37490) Grewal Law, PLLC 2290 Science Parkway Okemos, MI 48864 Phone: 517-393-3000 Fax: 517-393-3003 dmittleman@4grewal.com
Counsel for Plaintiffs

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

MICHAEL POWELL, & FRED WURTZEL, individually and on behalf of those similarly situated,
Plaintiffs,
v.

Case No. 20-11023
Hon. Gershwin A. Drain Magistrate Judge Michael J. Hluchaniuk
Oral Argument Requested

JOCELYN BENSON, MICHIGAN SECRETARY OF STATE, in her official capacity, &
JONATHAN BRATER, MICHIGAN DIRECTOR OF ELECTIONS, in his official capacity,
Defendants.
/

PLAINTIFFS’ BRIEF IN SUPPORT OF THEIR MOTION FOR PRELIMINARY INJUNCTION

Case 2:20-cv-11023-GAD-MJH ECF No. 2 filed 04/25/20 PageID.17 Page 4 of 34
TABLE OF CONTENTS INDEX OF AUTHORITIES ................................................................................... iv STATEMENT OF QUESTION PRESENTED ....................................................... vi MOST CONTROLLING AUTHORITY ............................................................... vii INTRODUCTION ................................................................................................... 1 STATEMENT OF FACTS ....................................................................................... 3
I. Absentee Voting .................................................................................. 3 II. The Impact of COVID-19 .................................................................... 4 III. Accessible Voting Systems .................................................................. 5 IV. The Individual Plaintiffs and Their Plans for Voting .......................... 6 LEGAL STANDARD .............................................................................................. 7 ARGUMENT ........................................................................................................... 8 I. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS. .......... 8 A. Standard of Review. .................................................................................. 8 B. Plaintiffs are qualified individuals with disabilities. ................................. 9 C. Defendants’ failure to implement an accessible absentee voting
method deprives Plaintiffs of their right to vote in a manner that is private and equal to the manner afforded to others under the ADA and violates well-settled law in this Circuit. ............................................ 10 D. Defendants’ illegal conduct places Plaintiffs and those similarly situated at unnecessary risk of serious illness or death. ........................... 13
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E. The Sixth Circuit in Hindel ruled that that the implementation of an accessible absentee ballot system does not fundamentally alter the state’s programs or services. .............................................................. 14
II. PLAINTIFFS WILL SUFFER IRREPERABLE HARM IN THE ABSENCE OF PRELIMINARY RELIEF. .................................... 17
III. THE BALANCE OF EQUITIES STRONGLY FAVORS PLAINTIFFS. ......................................................................................... 20
IV. AN INJUNCTION WILL SERVE THE PUBLIC INTEREST. .............. 21 V. PLAINTIFFS SHOULD NOT BE REQUIRED TO POST A BOND. ... 22 CONCLUSION ...................................................................................................... 23
iii

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Cases

INDEX OF AUTHORITIES

Page(s)

Am. Council of the Blind v. Paulson, 525 F.3d 1256 (D.C. Cir. 2008)............................................................................ 12
Am. Sys. Consulting, Inc. v. Devier, 514 F. Supp. 2d 1001 (S.D. Ohio 2007) ............................................................... 23
California Council of the Blind v. Cnty. of Alameda, 985 F. Supp. 2d 1229 (N.D. Cal. 2013).......................................................... 12, 13
CSX Transp., Inc. v. Tennessee State Bd. of Equalization, 964 F.2d 548 (6th Cir. 1992) ................................................................................ 17
Deck v. City of Toledo, 29 F. Supp. 2d 431 (N.D. Ohio 1998) .................................................................. 21
Dep’t of Revenue, 934 F.2d 1064 (9th Cir. 1991) ........................................................................ 17, 18
Disabled in Action v. Bd. of Elections in City of New York, 752 F.3d 189 (2d Cir. 2014) ................................................................................. 12
EEOC v. Chrysler Corp., 733 F.2d 1183 (6th Cir. 1984) .............................................................................. 17
Hindel v. Husted, 875 F.3d 344 (6th Cir. 2017) .......................................................................... 15, 16
Jones v. City of Monroe, MI, 341 F.3d 474 (6th Cir. 2003) .................................................................... 10, 16, 21
Libertarian Party of Ohio v. Husted, 751 F.3d 403 (6th Cir. 2014) ................................................................................ 19
Moltan Co. v. Eagle-Picher Indus., Inc., 55 F.3d 1171 (6th Cir. 1995) ................................................................................ 22
Nat’l Fed. of the Blind v. Lamone, 813 F.3d 494 (4th Cir. 2016) .......................................................................... 11, 16
Nat’l Fed.of the Blind v. Lamone, 2014 WL 4388342 (D. Md. Sept. 4, 2014)..................................................... 10, 12
Nat’l Org. on Disability v. Tartaglione, 2001 WL 1231717 (E.D. Pa. Oct. 11, 2001) ........................................................ 12
Nken v. Holder, 556 U.S. 418 (2009)................................................................................................ 8
Obama for Am. v. Husted, 697 F.3d 423 (6th Cir. 2012) ................................................................................ 22
Reilly v. City of Harrisburg,

iv

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858 F.3d 173 (3d Cir. 2017) ................................................................................... 8 Roth v. Bank of the Commonwealth,
583 F.2d 527 (6th Cir. 1978) ................................................................................ 22 Sellers v. University of Rio Grande,
838 F. Supp. 2d 677 (S.D. Ohio 2012) ................................................................. 17 Silver Sage Partners, Ltd. v. City of Desert Hot Springs,
251 F.3d 814 (9th Cir. 2001) ................................................................................ 17 Tennessee v. Lane,
541 U.S. 509 (2004).............................................................................................. 21 Univ. of Tex. v. Camenisch,
451 U.S. 390 (1981)................................................................................................ 8 Urbain v. Knapp Bros. Manuf. Co.,
217 F.2d 810 (6th Cir. 1954) ................................................................................ 23 Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7 (2008).................................................................................................... 7
Statutes
42 U.S.C. § 12101(b)(1) ......................................................................................... 21 42 U.S.C. § 12102 ................................................................................................... 10 42 U.S.C. § 12131(1)(B) ........................................................................................... 9 42 U.S.C. § 12132 ..................................................................................................... 9 42 U.S.C. § 12188(a)(2).......................................................................................... 17 U.S. Const., amend. XXIV ..................................................................................... 23
Rules
Federal Rule of Civil Procedure 65(c) .................................................................... 22
Regulations
28 C.F.R. § 35.130 .................................................................................................. 11 28 C.F.R. § 35.130(b)(1)(ii)................................................................................ 9, 13 28 C.F.R. § 35.130(b)(1)(iii)............................................................................... 9, 10 28 C.F.R. § 35.130(b)(7)................................................................................... 14, 15 28 C.F.R. § 35.160(b)(1)..................................................................................... 9, 14 28 C.F.R. § 35.164 .................................................................................................. 15 § 35.160(b)(2) ............................................................................................... 9, 10, 15
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STATEMENT OF QUESTION PRESENTED I. Michigan’s constitution guarantees every registered voter the right to cast
an absentee ballot without providing a reason, but Defendants only provide absentee voters with a paper ballot, which cannot be completed independently and privately by Plaintiffs and other individuals who are blind, in violation of the Americans with Disabilities Act of 1990 and the Michigan Persons with Disabilities Civil Rights Act. Plaintiffs and those similarly situated face the impossible choice of venturing to the polls inperson in order to receive assistance with casting their ballot, and in so doing risking their health and possibly their lives, or foregoing their sacred right to vote because they cannot obtain the assistance required to complete a paper absentee ballot. Should the Court grant Plaintiffs’ request for a preliminary injunction ordering Defendants to implement an accessible absentee voting system in order to guarantee Plaintiffs’ sacred right to vote and to protect Plaintiffs and those similarly situated from irreparable harm?
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MOST CONTROLLING AUTHORITY The most controlling authority for the relief sought includes: Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12131, et seq; Fed. R. Civ. P. 65; Hindel v. Husted, 875 F.3d 344, 349 (6th Cir. 2017); Nat’l Fed. of the Blind v. Lamone, 813 F.3d 494 (4th Cir. 2016); Article III of the Michigan Persons with Disabilities Civil Rights Act, MCL § 37.1102, et seq; Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); and Sellers v. University of Rio Grande, 838 F. Supp. 2d 677, (S.D. Ohio 2012).
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INTRODUCTION This case involves perhaps the most fundamental right to a healthy democracy—the right to vote. Michigan’s constitution guarantees all registered voters the right to vote by absentee ballot for any reason. However, Michigan provides only one option—a paper ballot which cannot be completed by independently and privately by individuals who are blind or who otherwise suffer from disabilities that limit their ability to access print. Plaintiffs, two individuals who are blind, have suffered irreparable harm as a result of Defendants’ illegal conduct, which has deprived them of their right to vote absentee privately and independently in the same manner enjoyed by other voters. Critically, Plaintiffs bring the instant cause of action in the midst of a global pandemic, which has magnified the harm being suffered, as they are now legally limited in their ability to travel and to access the polls in-person. 1 As a result, Plaintiffs face the horrific choice of venturing to their polling place to receive inperson assistance to vote, placing them at serious risk of illness or death, or perhaps foregoing voting all together if they are unable to obtain assistance completing an inaccessible paper ballot.
1 The undersigned respectfully asks the Court to take judicial notice of the fact that this case is being litigated in the midst of a global pandemic.
‐ 1 ‐

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Plaintiffs are likely to succeed on the merits of their claims. Defendants’ conduct has long been in violation of the ADA, as well as the Michigan Persons with Disabilities Civil Rights Act (PDCRA), by failing to provide this critical service in a manner that is equally available to individuals with disabilities as it is to individuals without disabilities. Remarkably, the relief requested, the use of an electronic, online voting tool, can be implemented at little to no cost, and would not burden or otherwise alter Defendants’ operations. A Court Order compelling this outcome will simply bring Michigan in-line with numerous other states, including Alaska, Maryland, Ohio, and Oregon, who have implemented such systems, many as a result of similar litigation across the country.
The balance of equities and public interest weigh heavily in favor of granting the requested relief. The injury suffered by Plaintiffs constitutes a violation of one of the most fundamental tenants of a healthy democracy—the right to a fair and equal opportunity to participate in the voting process. The need to uphold this right far outweighs any perceived harm to Defendants, particularly in light of the relative ease and minimal cost with which the remedy can be implemented. And, the requested relief promotes access to voting and will result in more Michiganders casting a vote in upcoming elections—an outcome that clearly advances the public interest.
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Accordingly, Plaintiffs respectfully request that this Honorable Court issue a Preliminary Injunction requiring Defendants to implement an accessible absentee voting system that will afford Plaintiffs and those similarly situated an opportunity to vote independently and privately in advance of the May 5, 2020 elections.
STATEMENT OF FACTS I. Absentee Voting. Michigan affords all registered voters the right to vote by absentee ballot without needing to provide a reason or excuse.2 The only option for Michigan registered voters who exercise their right to vote absentee is a paper ballot, which must be filled out by hand and returned by mail, fax, electronic mail, or personally delivered to the designated city or township clerk. Compl. ¶ 16. However, because the only option for absentee voting is a paper ballot, individuals who are blind or who have disabilities that limit their ability to access print materials, require assistance completing and returning their ballot, thereby depriving them of their right to vote privately and independently, the way non-disabled voters do. Compl. ¶ 18. Defendants further require that any individual who assists an individual with
2 https://www.michigan.gov/sos/0,4670,7-127-1633_8716-21037--,00.html (last visited April 24, 2020) (“Due to the passage of the statewide ballot proposal 18-3, all eligible and registered voters in Michigan may now request an absent voter ballot without providing a reason.”).
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a disability in completing the paper absentee ballot must sign the ballot before it is returned to the designated city or township clerk.3 Compl. ¶ 20.
Therefore, to vote absentee, Plaintiffs and those similarly situated must rely on the assistance of another person in order to physically mark their ballot. Such assistance results in Plaintiffs and those similarly situated being deprived of their fundamental right to vote privately and independently.
II. The Impact of COVID-19. As the Court is well-aware, the instant lawsuit has been filed in the midst of an unprecedented global pandemic that has altered daily life for everyone, including Plaintiffs and those similarly situated. As a result, it is anticipated that many, if not all, Michigan voters will be required or will choose the option to vote absentee in upcoming elections. Unfortunately, this poses the threat of totally excluding many individuals who are similarly situated to Plaintiffs from the voting process. Specifically, individuals who are blind or otherwise unable to access print materials, and who also live alone, will lack the assistance required to vote at all, let alone in the independent, private manner they are legally entitled to. Blind
3 https://www.michigan.gov/sos/0,4670,7-127-1633_8716-21037--,00.html (last visited April 24, 2020) (“If you received assistance voting the ballot, then the signature of the person who helped you must also be on the return envelope. Only you, a family member or person residing in your household, a mail carrier, or election official is authorized to deliver your signed absent voter ballot to your clerk's office.”).
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voters may also be forced to make the horrific choice of travelling to the polls in order to vote because they are unable to access the paper absentee ballot. Because Plaintiffs and those similarly situated typically do not drive cars, the trip to the polling place, likely via public transportation, presents an enormous risk of exposure to COVID-19. As a result, the need for immediate implementation of an accessible absentee voting system is more important than ever.
III. Accessible Voting Systems. There are options available to Defendants that would provide Plaintiffs and those similarly situated with an equal opportunity to vote absentee independently and privately, which can be implemented at little to no cost. For example, the state of Maryland uses an online ballot marking tool that allows for accessible absentee voting for blind and print disabled individuals.4 Ohio implemented a similar system following a lawsuit by individuals with disabilities virtually identical to the instant cause of action.5 Maryland’s online tool has been tested and is available to Defendants at no charge. Compl. ¶ 24.
4 https://elections.maryland.gov/voting/accessibility.html (last visited April 24, 2020) (“If you have a disability and cannot mark your ballot independently, we offer an online tool to help you mark your ballot. With this tool, most voters with disabilities can make selections without help. If you would like to use this online tool, request an absentee ballot and check the box saying that you want to print your ballot from SBE's website.”). 5 https://www.ohiosos.gov/elections/voters/2020-primary-frequently-askedquestions/Accessibility/ (last visited April 24, 2020) (“Once you receive an email
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Prime III is an additional tool that would allow for accessible absentee voting at little to no cost to Defendants.6 Compl. ¶ 28. Prime III is open source technology, meaning it could be implemented at virtually no cost to Defendants. Compl. ¶ 30. Prime III has gained popularity among numerous national organizations that hold elections, including Self Advocates Becoming Empowered and the National Council on Independent Living. Compl. ¶ 29. These tools have been successfully used by numerous individuals similarly situated to Plaintiffs to vote independently and privately in elections held in other states.
IV. The Individual Plaintiffs and Their Plans for Voting. Plaintiff Michael Powell is an individual who is blind and the current president of the Michigan Affiliate of the National Federation of the Blind (NFB). Compl. ¶ 10. Mr. Powell is a registered voter in the state of Michigan and he regularly votes in primary and general elections in his hometown of Warren, MI. Id. Mr. Powell would like the option of voting independently and privately by absentee ballot, particularly in light of the spread of COVID-19, which is expected
from the county board of election with a link to your accessible absentee ballot, you can access and mark the ballot on your computer, laptop, smart phone, tablet, or other device that is connected to the internet. This allows you to use any assistive technology, such as screen readers, input devices, magnification, speech to text software, to mark the ballot privately and independently. After marking your ballot, you must print your ballot and return it to the board of elections.”). 6 http://www.primevotingsystem.com/ (last visited April 24, 2020)
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to limit his ability to physically appear at a polling station. Id. Mr. Powell is unable to complete a paper absentee ballot independently, because Defendants offer no accessible option to individuals who are blind, thereby denying him his full and equal right to vote. Exhibit 1, Declaration of Michael Powell.
Plaintiff Fred Wurtzel is the former president of the Michigan Affiliate of NFB, he currently serves as the president of the Capital Region Chapter of Michigan Affiliate of the National Federation of the Blind, and he continues to serve on Michigan NFB’s board. Compl. ¶ 11. Mr. Wurtzel is also a regular voter who would like the option to vote absentee in all upcoming elections, particularly in light of the continuing spread of COVID-19. Id. ¶ 11. Mr. Wurtzel has also attended meetings with Defendants’ staff during which he brought this issue to their attention. Id. Defendants’ refusal to implement accessible absentee voting procedures violates Mr. Wurtzel’s right to vote independently and privately the same way voters without disabilities do. Exhibit 2, Declaration of Fred Wurtzel.
LEGAL STANDARD “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). “Once an applicant satisfies the first two factors, the traditional
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[equitable relief] inquiry calls for assessing the harm to the opposing party and weighing the public interest. Reilly v. City of Harrisburg, 858 F.3d 173, 178 (3d Cir. 2017). The standard for a preliminary injunction are factors to be weighed, rather than rigid elements that must be satisfied. Id.
ARGUMENT I. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS.
A. Standard of Review. Likelihood of success on the merits “requires more than a mere possibility that relief will be granted.” Nken v. Holder, 556 U.S. 418, 420 (2009). However, the Supreme Court has also acknowledged that, “a preliminary injunction is customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a trial on the merits.” Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981). Furthermore, “it is ordinarily sufficient if the plaintiff has raised questions going to the merits so serious, substantial, difficult, and doubtful as to make them fair grounds for litigation and thus for more deliberative investigation.” Id. Title II of the ADA requires that “[n]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be
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subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Defendants are the heads of a public entity within the scope of Title II. 42 U.S.C. § 12131(1)(B).
In providing services such as a website or absentee voting, Defendants must afford Plaintiffs “an opportunity to participate in or benefit from the [. . .] service [. . .] equal to that afforded others.” 28 C.F.R. § 35.130(b)(1)(ii). Defendants must provide Plaintiffs a service that is “as effective in affording equal opportunity” as is provided to others. 28 C.F.R. § 35.130(b)(1)(iii).
Public entities are also required to provide “appropriate auxiliary aids and services where necessary to afford 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). The aids and services must be provided to “protect the privacy and independence of the individual with a disability.” § 35.160(b)(2) (emphasis added). Therefore, Defendants must provide Plaintiffs, and those similarly situated, with an opportunity to participate in and benefit from its absentee voting program or service that is equal to and as effective as that afforded to individuals without disabilities.
B. Plaintiffs are qualified individuals with disabilities. To prove a violation of the ADA, Plaintiffs must establish that: (1) they have disabilities; (2) they are otherwise qualified to receive the benefits of the public service, program, or activity at issue; and (3) they were excluded from
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participation in or denied the benefits of such service, program, or activity, or otherwise discriminated against, on the basis of their disabilities. Jones v. City of Monroe, MI, 341 F.3d 474, 477 (6th Cir. 2003). The first and second prongs of this test are easily met as Plaintiffs are blind. 42 U.S.C. § 12102. As registered voters who regularly exercise their right to vote, Plaintiffs are eligible and “qualified” to receive the benefits of voting by absentee ballot in a private and independent manner, the same way individuals without disabilities are able to.
C. Defendants’ failure to implement an accessible absentee voting method deprives Plaintiffs of their right to vote in a manner that is private and equal to the manner afforded to others under the ADA and violates well-settled law in this Circuit.
Plaintiffs also satisfy the third element because they have been denied the right to vote absentee in a manner that is “equal to that afforded others.” 28 C.F.R. § 35.160(b)(2). The only available method for voting absentee—a paper ballot that must be filled out by hand, is “not as effective in affording equal opportunity” and does not “protect the privacy and independence of the individual with a disability.” 28 C.F.R. § 35.130(b)(1)(iii), § 35.160(b)(2).
Because Defendants offer absentee voting as a program or service available to all Michigan voters they must afford voters with disabilities an equal opportunity to access this program or service. See, e.g., Nat’l Fed.of the Blind v. Lamone, No. 14-1631, 2014 WL 4388342, at *11 (D. Md. Sept. 4, 2014) (holding
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that Maryland’s absentee voting program constitutes a distinct program or service under the ADA to which individuals with disabilities must have access because “it is a service that the State has opted to extend to all Maryland citizens”) (emphasis original); affirmed by Nat’l Fed. of the Blind v. Lamone, 813 F.3d 494 (4th Cir. 2016) (upholding preliminary injunction and finding “[w]e have little trouble concluding from the record before us that Maryland’s absentee voting program does not provide disabled individuals an opportunity to participate ... equal to that afforded to others”) (internal quotation marks omitted) (emphasis added). Like other voters, Plaintiffs must have the option of voting absentee, particularly considering Michigan’s policy of allowing no-reason absentee voting.
The absentee voting system that was struck down in Lamone was virtually identical to that employed by Defendants. The Court had little trouble upholding the ADA violation, reasoning that “[e]nsuring that disabled individuals are afforded an opportunity to participate in voting that is equal to that afforded others, 28 C.F.R. § 35.130, helps ensure that those individuals are never relegated to a position of political powerlessness.” Lamone, 813 F.3d at 507.
Furthermore, when voters who are blind or have dexterity impairments must rely on the kindness, availability, honesty, and accuracy of a third party to mark their absentee ballots for them, they are denied an equal opportunity to participate in and enjoy the benefits of absentee voting. Courts throughout the country have
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held that requiring voters with disabilities to obtain third-party assistance to vote, when all other voters can vote privately and independently, violates the ADA. See Disabled in Action v. Bd. of Elections in City of New York, 752 F.3d 189, 197, 199 (2d Cir. 2014); Lamone, 2014 WL 4388342, at *11-12; California Council of the Blind v. Cnty. of Alameda, 985 F. Supp. 2d 1229, 1238 (N.D. Cal. 2013) (“Congress intended for accommodations provided to individuals with disabilities to keep pace with rapidly changing technology of the times.”); Nat’l Org. on Disability v. Tartaglione, No. Civ. A. 01-1923, 2001 WL 1231717, at *3-4 (E.D. Pa. Oct. 11, 2001).
These courts understood that when individuals with disabilities must rely on the assistance of another person to cast their votes for them, their autonomy and right to live independently in the world are severely constrained, as is their right to vote at all. While nondisabled individuals need only be registered to vote, disabled voters who are forced to obtain assistance to vote must not only be registered, but must rely on a third party to be available and willing to assist them with voting, and to do so accurately and honestly. Voting is too important a civic duty to require the blind “to rely on the honesty and carefulness of sighted individuals.” Am. Council of the Blind v. Paulson, 525 F.3d 1256, 1270 (D.C. Cir. 2008). As the Second Circuit reasoned in Disabled in Action, “[t]he right to vote should not be contingent on the happenstance that others are available to help.” 752 F.3d at 199.
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This is particularly so given that “one of the central features of voting, and one of its benefits, is voting privately and independently.” California Council of the Blind, 985 F. Supp. 2d at 1238. Requiring Plaintiffs to obtain assistance to vote absentee “at best provides these individuals with an inferior voting experience ‘not equal to that afforded others’ . . . [because] [b]lind and visually impaired voters are forced to reveal a political opinion that others are not required to disclose.” Id. at 1239; quoting 28 C.F.R. § 35.130(b)(1)(ii).
D. Defendants’ illegal conduct places Plaintiffs and those similarly situated at unnecessary risk of serious illness or death.
Furthermore, the need for accessible absentee voting has become more pressing in light of the impact of COVID-19 on upcoming elections, which is expected to result in significantly higher absentee voting. Although Michigan offers all voters without disabilities the opportunity to vote absentee privately and independently by making available only a paper absentee ballot, Defendants require Plaintiffs to obtain sighted assistance to participate in absentee voting, thereby sacrificing the privacy of their ballots.
And, our current circumstances leave Plaintiffs and those similarly situated with an impossible choice—forego voting in a private manner by obtaining assistance completing the paper absentee ballot—or risk their health, or perhaps their life, by travelling to a polling station with accessible, in-person voting methods available. Blind individuals who are forced to vote in-person are uniquely
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susceptible to the threat of COVID-19, as they are more likely to rely on services such as public transportation to travel. The choice becomes even more complicated considering ongoing stay at home orders, leaving those who live alone with few if any options to obtain assistance completing a paper absentee ballot.
E. The Sixth Circuit in Hindel ruled that that the implementation of an accessible absentee ballot system does not fundamentally alter the state’s programs or services.
The solution for ending Michigan’s discriminatory treatment of Plaintiffs and those similarly situated is relatively straightforward—Defendants must make available accessible absentee voting technology that would allow Plaintiffs to vote absentee privately and independently. There are at least two absentee voting technologies, Prime III and Maryland’s online ballot marking tool, that are free of charge, secure, and would provide for accessible absentee voting. See supra. As such, Defendants must make one of these technologies, or an alternative accessible absentee voting system, available to Plaintiffs as either a reasonable modification to its absentee voting program or as an auxiliary aid or service. See 28 C.F.R. § 35.130(b)(7) (requiring that public entities “make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability . . .”); 28 C.F.R. § 35.160(b)(1) (requiring that public entities “furnish appropriate auxiliary aids and services where necessary to afford individuals with disabilities, including applicants, participants,
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companions, and members of the public, an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity of a public entity”). Indeed, the Title II regulations require public entities to provide auxiliary aids and services that will “protect the privacy and independence of the individual with a disability.” 28 C.F.R. § 35.160(b)(2).
Defendants may only refuse to make an accessible absentee voting system available to Plaintiffs if they can prove that doing so would either fundamentally alter the nature of the absentee voting program or, in the case of providing an auxiliary aid or service, that it would pose an undue financial or administrative burden. 28 C.F.R. § 35.130(b)(7); 28 C.F.R. § 35.164. Defendants will not be able to establish that making absentee voting accessible would fundamentally alter the nature of the absentee voting program – all votes would still be cast in absentia and counted in the election results. Furthermore, because there are voting systems available that have been used successfully in statewide elections in other states, have been found to be secure, and are available at no cost, Defendants will not be able to establish that implementing one of these accessible absentee voting systems would pose an undue financial or administrative burden. See Hindel v. Husted, 875 F.3d 344, 349 (6th Cir. 2017) (“a state procedural requirement may not excuse a substantive ADA violation.”).
In Lamone, the Fourth Circuit rejected the defendant’s arguments that
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implementing an online ballot marking tool would pose an unreasonable burden, reasoning:
[B]ecause the tool has already been developed, there does not appear to be any substantial cost or implementation burden that would need to be borne by Maryland to make the tool available for use. On the facts before us, we conclude that plaintiffs' proposed use of the online ballot marking tool is a reasonable modification to Maryland's absentee voting policies and procedures. Lamone, 813 F.3d at 508. Similarly, the Court ruled that the proposed modification did not constitute a fundamental alteration, reasoning: “requiring public entities to make changes to rules, policies, practices, or services is exactly what the ADA does.”7 Id. at 508; quoting Jones, 341 F.3d at 487; see also Hindel, 875 F.3d at 349. It is well-established that the proposed relief is reasonable, even before the arrival of COVID-19.
7 In the underlying proceedings, the District Court held a three-day bench trial and found that the ballot marking tool “is reasonably secure, and safegurards disabled voters’ privacy...” Lamone, 813 F.3d at 509. Plaintiffs respectfully ask the Court to grant the requested preliminary injunction on the instant motion, based on the supporting papers and oral argument. Plaintiffs further respectfully submit that a full evidentiary hearing is likely unnecessary in light of the requested accommodation being widely used throughout the United States, as a secure and accessible method of absentee voting, following a plethora of litigation.
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II. PLAINTIFFS WILL SUFFER IRREPERABLE HARM IN THE ABSENCE OF PRELIMINARY RELIEF. Irreparable harm may be presumed when a defendant has violated a civil
rights statute such as the ADA. See Sellers v. University of Rio Grande, 838 F. Supp. 2d 677, 687 (S.D. Ohio 2012) (noting support for the proposition that “when Congress has enacted a statute such as the ADA to prohibit discrimination against individuals with disabilities, the occurrence of the very discrimination Congress sought to prevent is the type of irreparable injury that may support the issuance of an injunction”).8 Irreparable harm may also be presumed when, as is the case with the ADA, the statute explicitly provides for injunctive relief. See 42 U.S.C. § 12188(a)(2) (“Where appropriate, injunctive relief shall also include requiring the provision of an auxiliary aid or service, modification of a policy, or provision of alternative methods, to the extent required by this subchapter.”); CSX Transp., Inc. v. Tennessee State Bd. of Equalization, 964 F.2d 548, 551 (6th Cir. 1992); Burlington N.R.R. Co. v. Dep’t of Revenue, 934 F.2d 1064, 1074 (9th Cir. 1991).
8 See also Silver Sage Partners, Ltd. v. City of Desert Hot Springs, 251 F.3d 814, 827 (9th Cir. 2001) (“[W]here a defendant has violated a civil rights statute, we will presume that the plaintiff has suffered irreparable injury from the fact of the defendant’s violation”); EEOC v. Chrysler Corp., 733 F.2d 1183, 1186 (6th Cir. 1984) (holding that the injuries facing the plaintiffs, such as loss of work, loss of future prospects for work, and infliction of emotional harm, were the type of injuries Congress sought to avoid through the ADEA and thus constituted irreparable harm).
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Furthermore, this District has recently confirmed the importance of preserving voting rights during COVID-19. Esshaki v. Whitmer, No. 20-10831 (Attached as Exhibit 3), addressed the question of whether Michigan’s requirement that candidates seeking elected office obtain a certain number of signatures should be altered in light of the restrictions currently placed on Michigan residents as a result of COVID-19. The Court noted that “[c]andidates typically gather these signatures door-to-door, or in high-traffic public places like outside malls, grocery stores” and other crowded areas, with signatures being due on April 21, 2020. Exhibit 3, pg. 2. The Court noted that the rapid spread of COVID-19 has eliminated virtually all public gatherings, and would even make the process of going door-to-door to collect signatures a misdemeanor. Id. at 3. Granting the plaintiff’s request for temporary restraining order, the Court reasoned that “[u]nder these unique historical circumstances [...] the Court finds that the State’s actions [...] and the statutory ballot-access requirements, operate in tandem to impose a severe burden on Plaintiff’s ability to seek elected office, in violation of his First and Fourteenth Amendment rights...” Id. at pg. 4. The Court granted the preliminary injunction, and ordered Defendants Gretchen Whitmer, Jocelyn Benson, and Jonathan Brater to reduce the number of signatures required for the ballot by 50% and allowing the use of electronic-signatures for prospective political candidates. Id. at 40.
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On the issue of irreparable harm, the Court wrote” “[b]allot access cases such as this implicate First Amendment rights, and when such rights are violated— as when a candidate is unconstitutionally deprived the right to access to the ballot—irreparable harm can be presumed.” Id. at 27; citing Libertarian Party of Ohio v. Husted, 751 F.3d 403, 412 (6th Cir. 2014).
The Court confirmed the broad need for modifications to election policies and procedures in light of the restrictions and limitations faced by the people of Michigan during the spread of the spread of COVID-19. And, voting rights are even more critical to a healthy and vibrant democracy than access to the ballot. Here, just as in Esshaki, injunctive relief is necessary to ensure full and equal voting rights for Plaintiffs and those similarly situated.
If the Court does not grant a preliminary injunction requiring Defendants to institute an accessible absentee voting system prior to the upcoming primary and general elections, Plaintiffs will have no choice but to forego their right to vote absentee, or sacrifice their right to privacy and independence when casting their ballot. Furthermore, there exists a significant likelihood that Plaintiffs only voting option in the upcoming elections will be to vote by absentee ballot due to the spread of COVID-19. In this scenario, there is a real and imminent threat that Plaintiffs will be totally excluded from voting if they cannot obtain assistance in completing the paper absentee ballot, or be forced to leave their homes, which
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poses a serious threat of illness or death. The impending harm, the loss of the opportunity to participate in the democratic process, is irreparable and cannot be redressed with any amount of monetary damages.
III. THE BALANCE OF EQUITIES STRONGLY FAVORS PLAINTIFFS. Fundamental principles of democracy strongly favor guaranteeing Plaintiffs
have reasonable access to voting, including absentee voting, which is a right of the voters of Michigan. Plaintiffs and those similarly situated will be faced with the choice of sacrificing their right to privacy during the voting process, or foregoing voting all together. Similarly, even if Plaintiffs request an absentee ballot as it currently exists, they will be totally unable to complete the ballot if they cannot obtain assistance to complete it. This effectively results in Plaintiffs, and numerous similarly situated individuals, being excluded from full participation in the voting process. Further, it is anticipated that if this Court were to deny a preliminary injunction, Plaintiffs and those similarly situated may be forced to venture to the polls during the pandemic, many via public transportation, to obtain in-person voting assistance, placing themselves at imminent risk of illness or death.
Defendants, on the other hand, will suffer minimal if any harm if a preliminary injunction is granted. As discussed above, there are available technologies that are open source, in other words, free to Defendants. See supra. And, in fact, adopting an accessible method of absentee voting will streamline the
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voting process and provide for a more robust and inclusive democracy. Turning again to Esshaki, the Court, examining the burden to the state, noted
that, even if the state could present a compelling reason for strictly maintaining its ballot signature requirements, the “compelling interest is not narrowly tailored to the context of the COVID-19 pandemic.” Esshaki at 25. Assuming, arguendo, that the state can present a compelling reason for maintaining its out-of-date paper ballot procedures, such reasoning should be examined in the context of COVID-19, which is fully expected to impact upcoming primary and general elections.
IV. AN INJUNCTION WILL SERVE THE PUBLIC INTEREST. Congress has made clear in enacting the ADA that the public interest lies in
the eradication of discrimination against persons with disabilities, declaring that the ADA’s purpose is “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” Tennessee v. Lane, 541 U.S. 509, 516 (2004) (quoting 42 U.S.C. § 12101(b)(1)). In the context of preliminary injunctions, this Circuit has firmly held that “[t]he public interest is clearly served by eliminating the discrimination Congress sought to prevent in passing the ADA.” Jones, 341 F.3d at 490; accord Deck v. City of Toledo, 29 F. Supp. 2d 431, 434 (N.D. Ohio 1998) (noting that “there is a significant public interest in eliminating discrimination against individuals with disabilities”) (internal quotation marks omitted).
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And, as discussed above, a preliminary injunction would result in more citizens being afforded the opportunity to vote, thereby advancing one of the fundamental tenants of democracy. Obama for Am. v. Husted, 697 F.3d 423, 43637 (6th Cir. 2012) (“the public has a strong interest in exercising the fundamental political right to vote. That interest is best served by favoring enfranchisement and ensuring qualified voters’ exercise of their right to vote is successful. The public interests therefore favors permitting as many qualified voters to vote as possible.”) (internal quotation marks and citations omitted). A preliminary injunction advances the purpose of the ADA, promotes the right to vote, and thus serves the public interest. The requested relief also promotes the state and federal governments’ policy of keeping as many citizens as possible at home—particularly vulnerable populations—such as individuals with disabilities, in order to avoid overburdening the healthcare system.
V. PLAINTIFFS SHOULD NOT BE REQUIRED TO POST A BOND. The Sixth Circuit has interpreted Federal Rule of Civil Procedure 65(c) to
provide the district court discretion to determine whether a bond is required for security. Moltan Co. v. Eagle-Picher Indus., Inc., 55 F.3d 1171, 1176 (6th Cir. 1995) (finding that “the rule in our circuit has long been that the district court possesses discretion over whether to require the posting of security”); citing Roth v. Bank of the Commonwealth, 583 F.2d 527, 539 (6th Cir. 1978), cert. denied,
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440 U.S. 944 (1979); Urbain v. Knapp Bros. Manuf. Co., 217 F.2d 810, 815-16 (6th Cir. 1954), cert. denied, 349 U.S. 930 (1955)). In this case, Plaintiffs should not be required to post a bond given that they have brought this case to vindicate their federal civil rights, the balance of equities weighs strongly in their favor, and requiring a bond would effectively amount to a poll tax in violation of the 24th Amendment. See, e.g., Am. Sys. Consulting, Inc. v. Devier, 514 F. Supp. 2d 1001, 1010 (S.D. Ohio 2007) (“Having considered the equitable circumstances of this case, the Court in its discretion concludes that not posting of a bond is warranted.”); see U.S. Const., amend. XXIV.
CONCLUSION Absent preliminary and permanent injunctive relief, Plaintiffs and those similarly situated face the very real prospect of being totally excluded from the voting process, being forced to sacrifice their right to vote privately, or even worse, being put at risk of serious illness or death if forced to vote at the polls instead of by absentee ballot. Accordingly, Plaintiffs respectfully request that this Honorable Court grant their Motion for Preliminary Injunction and order Defendants to implement an accessible absentee voting method in time for the May 5, 2020 primary elections and all future elections in the State of Michigan.
Respectfully submitted, /s/ Jason M. Turkish Jason M. Turkish (P76310)
‐ 23 ‐

Case 2:20-cv-11023-GAD-MJH ECF No. 2 filed 04/25/20 PageID.46 Page 33 of 34

Dated: April 25, 2020

Ryan T. Kaiser (P79491) Melissa M. Nyman (CA Bar #293207) NYMAN TURKISH PC 20750 Civic Center Drive, Ste. 290 Southfield, MI 48076 Phone: 248-284-2480 Fax: 248-262-5024 Jason.Turkish@NymanTurkish.com Ryan.Kaiser@NymanTurkish.com Melissa.Nyman@NymanTurkish.com
David Mittleman (P37490) Grewal Law, PLLC 2290 Science Parkway Okemos, MI 48864 Phone: 517-393-3000 Fax: 517-393-3003 dmittleman@4grewal.com
Counsel for Plaintiffs

‐ 24 ‐

Case 2:20-cv-11023-GAD-MJH ECF No. 2 filed 04/25/20 PageID.47 Page 34 of 34
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that the foregoing document and attached exhibits
were electronically filed on April 25, 2020, and were simultaneously prepared to
be served via U.S. Mail Certified/Return Receipt Requested on Defendants at the
following addresses:
Michigan Attorney General PO Box 30212 Lansing, MI 48909
Ms. Jocelyn Benson 430 W. Allegan Street Richard H. Austin Building, 4th Floor Lansing, MI 48918
Mr. Jonathan Brater Michigan Department of State Bureau of Elections PO Box 20126 Lansing, MI 48901-0726
Governor Gretchen Whitmer P.O. Box 30013 Lansing, Michigan 48909
In addition, given the exigency of this matter, counsel has provided notice to the Michigan Attorney General’s Office by forwarding a copy of the complaint and instant motion by electronic mail on April 25, 2020.
/s/ Jason M. Turkish Jason M. Turkish (P76310)
‐ 25 ‐

 
 Case 2:20-cv-11023-GAD-MJH ECF No. 13 filed 04/28/20 PageID.116 Page 1 of 16

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

MICHAEL POWELL, and FRED WURTZEL, individually and on behalf of those similarly situated,
and,
THE NATIONAL FEDERATION OF THE BLIND OF MICHIGAN,
Plaintiffs,
v.

Case No. 20-11023
Hon. Gershwin Drain Mag. Judge Michael J. Hluchaniuk

JOCELYN BENSON, MICHIGAN SECRETARY OF STATE, in her official capacity, and
JONATHAN BRATER, MICHIGAN DIRECTOR OF ELECTIONS, in his official capacity,
Defendants.
/
PLAINTIFFS’ FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF1
Plaintiffs, The National Federation of the Blind of Michigan, Michael Powell and Fred
Wurtzel (collectively “Plaintiffs”) hereby sue Jocelyn Benson (Ms. Benson), in her official
capacity as Michigan Secretary of State, and Jonathan Brater (Mr. Brater) (collectively
“Defendants”), in his official capacity as Michigan Director of Elections, and state as follows:

INTRODUCTION 1. Plaintiffs bring this lawsuit against Defendants, in their official capacities, to

1 Plaintiffs’ First Amended Complaint is filed by right pursuant to Fed. R. Civ. P. 15(a)(1)(A) to add the Organizational Plaintiff The National Federation of the Blind of Michigan.

Case 2:20-cv-11023-GAD-MJH ECF No. 13 filed 04/28/20 PageID.117 Page 2 of 16
vindicate their rights as individuals with disabilities who have been denied the opportunity to vote privately and independently by absentee ballot, in violation of Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101- 12213, and Article III of the Michigan Persons with Disabilities Civil Rights Act, MCL § 37.1101, et seq. (PDCRA). On the basis of these violations, Plaintiffs seek a declaratory judgment, preliminary and permanent injunctive relief, attorney’s fees and costs, and any other available relief.
2. The individual Plaintiffs are blind individuals who are registered to vote in Michigan, and desire to exercise their right to vote by absentee ballot in an accessible and independent manner; a right universally afforded to Michiganders without disabilities.
3. Plaintiff the National Federation of the Blind of Michigan (NFBMI), is the Michigan affiliate of the National Federation of the Blind, an organization of individuals who are legally blind.
4. Although there is readily available technology that would provide Plaintiffs, and other voters who are blind or who have other disabilities that prevent them from reading or writing print (print disabilities), the opportunity to cast their votes through absentee ballots privately, independently, and effectively, as able-bodied individuals may do, Defendants have refused to make this technology available to Plaintiffs.
5. Defendants’ conduct has long been in violation of the ADA and the PDCRA, but the need for immediate implementation of accessible absentee ballots for Plaintiffs and those similarly situated has never been more urgent in light of the global pandemic, which is expected to result in most, if not all, voters in Michigan voting by absentee ballot in upcoming elections.
6. Because individuals without disabilities may cast their votes by absentee ballot privately, independently, and effectively, the ADA and PDCRA require Defendants to provide individuals with disabilities an equal opportunity to do the same.
2

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7. By ignoring the needs and dignity of Plaintiffs and those similarly situated, Defendants have treated them as second-class citizens, unfairly and unjustly ignored their basic rights to security, equality, and dignity, and have unreasonably restricted their fundamental and sacred right to vote. Accordingly, Plaintiffs seek declaratory relief stating that Defendants’ conduct violates the ADA and the PDCRA, as well as injunctive relief requiring Defendants to immediately introduce accessible absentee ballots that can be completed independently and privately, just as numerous states across the country have already done.
JURISDICTION 8. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1343 because Plaintiffs’ claims arise under the ADA. In addition, the Court has jurisdiction over Plaintiff’s claims for declaratory relief pursuant to 28 U.S.C. §§ 2201-02 and jurisdiction over Plaintiff’s claims for injunctive relief pursuant to 15 U.S.C. § 1116. 9. This Court has supplemental jurisdiction over Plaintiffs’ state law claim pursuant to 28 U.S.C. § 1367, as the claim arises from the same set of operative facts as Plaintiffs’ federal claim. 10. Venue is proper in the Eastern District of Michigan, Southern Division under 28 U.S.C. § 1391 because Plaintiff, Michael Powell is situated within this District, because members of the NFBMI are situated within this District, and because the events, acts, and omissions giving rise to Plaintiffs’ cause of action occurred in this District.
PARTIES 11. Plaintiff Michael Powell is a blind individual who is registered to vote in Michigan. Mr. Powell is the current President of the NFBMI.
a. Mr. Powell resides in Warren, MI, and is a regular voter who intends to vote in the upcoming primary and general elections.
3

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b. Mr. Powell would like the option of voting absentee privately and independently from his home, as allowed by Michigan law, in the upcoming primary and general elections.
12. Plaintiff Fred Wurtzel is a blind individual who is registered to vote in Michigan. Mr. Wurtzel is the former President of the NFBMI, and he is the current President of the Capital Region Chapter of the NFBMI. Mr. Wurtzel also currently serves on the Executive Board for the NFBMI.
a. Mr. Wurtzel resides in Lansing Township, MI and is a regular voter. Mr. Wurtzel intends to vote in upcoming primary and general elections.
b. Mr. Wurtzel would like the option of voting absentee privately and independently from his home, as allowed by Michigan law, in the upcoming 2 elections.
c. In addition, Mr. Wurtzel has communicated his concerns that the current absentee ballot system does not allow for individuals who are blind to vote independently and privately, including attending meetings with Defendants’ staff where he has raised these concerns.
13. Plaintiff The National Federation of the Blind of Michigan is the Michigan affiliate of the National Federation of the Blind. The NFBMI is a 501(c)(3) non-profit corporation made up of blind Michiganders and their families and friends. The organization promotes the general welfare of the blind by assisting the blind in their efforts to integrate themselves into society on terms of equality and by removing barriers that result in the denial of opportunity to blind persons in virtually every sphere of life, including education, employment, family and community life, transportation, and recreation.
2 https://www.michigan.gov/sos/0,4670,7-127-1640_9150-513201--m_2017_1,00.html
4

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a. The NFBMI advances the National Federation of the Blind’s goal of complete integration of the blind into society on a basis of equality. This objective includes the removal of legal, economic, and social discrimination. As part of its mission and to achieve these goals, the NFBMI has worked actively to ensure that the blind have an equal opportunity to vote on the same terms as all other voters by collaborating with developers of voting technology to ensure accessibility for the blind.
b. The NFBMI has many blind members, including Mr. Powell and Mr. Wurtzel, who are registered to vote in Michigan and wish to vote in upcoming elections by absentee ballot, including the May 5, 2020 elections, by casting an absentee ballot.
c. The NFBMI works in furtherance of its members’ right to participate fully and equally in all aspects of their lives in Michigan, including in voting.
d. The NFBMI’s members are particularly susceptible to the threat of COVID-19 if they attempt to access their polling locations in-person. For example, blind individuals disproportionately rely on public transportation services, which will necessarily bring them into close proximity with others.
e. The NFBMI has standing to bring the present cause of action because it is an organization comprised of qualified individuals with disabilities who have sustained injury as a result of Defendants’ failure to implement an accessible absentee voting system. The NFBMI’s members, collectively and independently, face the threat of imminent injury as a result of Defendants’ illegal conduct, its members would have justiciable standing if the lawsuit were brought individually, and the nature of the relief sought does not make the
5

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individual participation of each constituent indispensable. Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333, 342-43 (1977). 14. Ms. Benson is Michigan’s Secretary of State. In that capacity, Ms. Benson is responsible for oversight of statewide elections. She oversees Michigan’s absentee voting program and maintains and operates the Secretary of State’s voter information website.3 As Michigan’s chief elections official, Ms. Benson is responsible for ensuring compliance with the requirements of applicable state and federal law, including the ADA. Plaintiffs bring this action against Ms. Benson in her official capacity as Secretary of State. 15. Mr. Brater is the Director of the Michigan Bureau of Elections. In that role, Mr. Brater oversees the administration of elections statewide. Plaintiffs bring this action against Mr. Brater in his official capacity as Michigan Director of Elections.
FACTUAL ALLEGATIONS Absentee Voting in Michigan 16. In 2018, Michigan voters enshrined the right to vote by absentee ballot without providing a reason or excuse into the state’s constitution by successful ballot measure. As a result, the right of all Michiganders to vote by absentee ballot is a right guaranteed by the state constitution. 17. Michigan does not require absentee voters to provide a reason for their decision to vote absentee instead of in-person. 18. Michigan voters request absentee ballots through a form that must be filled out and mailed in, faxed, electronically-mailed, or personally delivered to their city or township clerk. 19. Once a voter’s absentee ballot request is processed, Michigan mails a paper absentee ballot to the requesting voter. The only option for Michigan voters, including Plaintiffs,
3 https://mvic.sos.state.mi.us/RegisterVoter
6

Case 2:20-cv-11023-GAD-MJH ECF No. 13 filed 04/28/20 PageID.122 Page 7 of 16
is a paper absentee ballot. 20. Paper absentee ballots are not accessible to Plaintiffs or to other individuals who
are blind or have disabilities that limit their ability to access print materials. Blind individuals cannot read the printed text that appears on the absentee ballot. Thus, to vote absentee, Plaintiffs and other blind and print-disabled Michigan voters must rely on the assistance of another person to read and mark their paper absentee ballots for them. Such assistance strips Plaintiffs of the secrecy of their ballots.
21. The paper absentee ballot also forces those who are blind to seek in-person assistance to complete their absentee ballot. Individuals who live alone would be forced to violate the Governor’s Executive Order requiring Michigan citizens to stay home, and would be contrary to state and federal policy encouraging, and in many instances requiring, social distancing to stem the spread of the global pandemic.
22. When Plaintiffs rely on the assistance of another person to mark their paper absentee ballot, the assisting individual must also sign the absentee ballot when it is returned to the designated city of township clerk’s office.
23. Plaintiffs want the same option for themselves and those similarly situated of voting absentee privately and independently in the May, August, and November 2020 elections that Defendants extend to all other voters.
24. Defendants have been apprised of this ongoing violation of the rights of individuals who are blind by Mr. Wurtzel, as well as other blind individuals, including other members of the NFBMI, but Defendants have refused to bring agency polices into compliance with state and federal law.
Auxiliary Aids and Services for Absentee Voting 25. Auxiliary aids and services exist that would afford Plaintiffs and other blind and
7

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print-disabled voters an equal opportunity to vote absentee privately and independently. 26. For example, Maryland has developed an online ballot marking tool that allows
voters to view and mark their absentee ballots on their computers. Maryland created the tool so that it would work with screen access software and has extensively tested the tool’s usability for individuals with a variety of disabilities.
27. In the November 2014 election, more than 1,700 Maryland voters with disabilities used the tool to mark their voting selections on their computers, review a summary screen showing their selections, and print out their ballots with their selections marked.
28. Maryland’s online ballot marking tool allows voters who are blind or have other print disabilities to mark their absentee ballots privately and independently. Although the absentee ballot must still be printed, signed, and returned to the voter’s local board of election to be counted, because the signature page prints separately from the ballot, voters need not sacrifice the secrecy of their ballots to receive assistance with signing.
29. Because Maryland is willing to share its online ballot marking tool technology with other states at no charge, implementing the tool would impose only minimal costs for Defendants.
30. Alternatively, the Prime III voting system also provides for accessible absentee voting. Prime III is an accessible electronic voting system that can be used for both in-person and absentee voting. For absentee voting, voters can access their absentee ballots through their web browser and read and mark their ballots on their computers. Voters then print their ballots and mail them back to their local boards of election where their votes are counted.
31. The Prime III has been used in state elections in Oregon, Wisconsin, and New Hampshire. It has also been used in national organization elections such as those of Self Advocates Becoming Empowered, National Society of Black Engineers, and National Council on
8

Case 2:20-cv-11023-GAD-MJH ECF No. 13 filed 04/28/20 PageID.124 Page 9 of 16
Independent Living. 32. In September 2015, Prime III was released as open source technology, meaning
that it can be used by Defendants, or by any other entity, free of charge. 33. Finally, other states, like Alaska, make available an electronic absentee ballot that
can be completed and transmitted using the voter’s computer. Such electronic absentee voting systems can be made accessible for blind voters who use screen access software.
34. Defendants have been asked on multiple occasions to implement accessible absentee ballot systems that would allow Plaintiffs to vote privately and independently, such as offering Maryland’s online ballot marking tool as an example of one that is readily available, but Defendants have refused to provide blind Michigan voters with an auxiliary aid or service that would grant them an equal opportunity to vote absentee.
COUNT I Violations of Title II of the Americans with Disabilities Act 42 U.S.C. § 12131 et seq.
35. Plaintiffs incorporate the allegations in the preceding paragraphs. 36. The Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213, guarantees qualified individuals an equal opportunity to access the benefits of the services, programs, or activities of a public entity. 42 U.S.C. § 12132. 37. Title II of the ADA mandates, inter alia, that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. 38. In providing aids, benefits, or services, public entities may not “[a]fford a qualified individual with a disability an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others,” nor may public entities provide qualified individuals with disabilities “an aid, benefit, or service that is not as effective in affording equal
9

Case 2:20-cv-11023-GAD-MJH ECF No. 13 filed 04/28/20 PageID.125 Page 10 of 16
opportunity” to gain the same result or benefit as provided to others. 28 C.F.R. § 35.130(b)(1)(ii)(iii).
39. Furthermore, such public entities “shall furnish appropriate auxiliary aids and services where necessary to afford individuals with disabilities, including applicants, participants, companions, and members of the public, 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).
40. Critically, to be effective, the “auxiliary aids and services must be provided in . . . such a way as to protect the privacy and independence of the individual with a disability.” 28 C.F.R. § 35.160(b)(2) (emphasis added).
41. Defendants operate an agency of the State of Michigan, which is a public entity under Title II of the ADA.
42. Absentee voting is a service, program, or activity provided by Defendants. 43. The individual Plaintiffs are individuals with disabilities under the ADA, as they are legally blind. 44. Members of the NFBMI are individuals with disabilities under the ADA, as they are legally blind. 45. Plaintiffs, and others similarly situated, are registered to vote in Michigan and intend to vote in upcoming elections, and are thus qualified individuals entitled to the protections of the ADA. 46. Defendants have failed to meet their obligations to provide voters who are blind or have print disabilities with an opportunity to vote that is equal to the opportunity provided to other voters. In failing to implement a readily available, accessible absentee voting system, Defendants have refused to provide an auxiliary aid or service and failed to make a reasonable modification necessary to allow Plaintiffs, and those similarly situated, to vote equally. Accordingly,
10

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Defendants have excluded and continue to exclude Plaintiffs and those similarly situated from participation in, and denied them the benefits of or otherwise discriminated against them in, its service, program, or activity of absentee voting.
47. As a result of Defendants’ actions, Plaintiffs and those similarly situated have suffered and will continue to suffer irreparable harm: they have suffered and continue to suffer from discrimination and unequal access to Defendants’ programs, services, or activities of absentee voting. If there is no change in the status quo, Plaintiffs and those similarly situated will be denied their right to vote absentee privately and independently in upcoming elections.
48. The need for implementation of an accessible absentee voting system is more pressing than ever. In light of COVID-19, it is reasonably expected that most if not all voters will be required, or will exercise the option, to vote absentee. Critically, many individuals with disabilities do not have assistance in their homes to complete the paper ballot, which will effectively prevent them from voting in upcoming elections all together.
49. In the absence of accessible absentee ballots, individuals who are blind will face the horrific choice of leaving their homes in order to receive in-person assistance voting at their local polling place, thereby facing the threat of severe illness or death, or staying home and foregoing voting all together. Defendants have placed many individuals similarly situated to Plaintiffs, including members of the NFBMI, in the position of choosing between their health (and perhaps their lives) by voting in-person, or foregoing their sacred right to vote all together—a false and illegal choice that violates federal law.
50. Defendants’ failure to meet their obligations to provide blind voters with an equal opportunity to vote absentee is an ongoing and continuous violation of the ADA and its supporting regulations. Unless restrained from doing so, Defendants will continue to violate the ADA. Unless enjoined, Defendants’ conduct will continue to inflict injuries for which Plaintiffs
11

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have no adequate remedy at law. 51. The requested alteration could be implemented with minimal cost given the openly
available options for allowing independent, private absentee voting, and would not fundamentally alter Defendants’ programs and services. See Hindel v. Husted, 875 F.3d 344, 348 (6th Cir. 2017).
52. Unless the requested relief is granted, Plaintiffs and those similarly situated will suffer irreparable harm in that they will be discriminated against and denied equal access to absentee voting, or forced to risk their health, and possibly their lives, to vote in-person – a program, service, or activity that impacts their ability to participate in one the most fundamental democratic institutions: voting.
53. The ADA authorizes injunctive relief as appropriate to remedy acts of discrimination against persons with disabilities. 42 U.S.C. § 12188(a)(1).
54. Plaintiffs and those similarly situated are entitled to injunctive relief, as well as reasonable attorney’s fees and costs.
COUNT II Violation of Article III of the Michigan Persons with Disabilities Civil Rights Act
MCL § 37.2301 et seq. 55. Plaintiffs incorporate the allegations in the preceding paragraphs. 56. Article III of the Michigan Persons with Disabilities Civil Rights Act (PDCRA) prohibits any person from denying an individual the full and equal enjoyment of the services, privileges, or advantages of a place of public services because of a disability that is unrelated to the individual’s ability to utilize and benefit from those services, privileges, or advantages. See M.C.L. § 37.1302. 57. The term “public service” includes an agency managed by or on behalf of the State of Michigan. MCL § 37.1301(b). 58. The PDCRA prohibits state actors, such as Defendants, from denying an individual
12

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with a disability “the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation or public service because of a disability that is unrelated to the individual's ability to utilize and benefit from the goods, services, facilities, privileges, advantages, or accommodations or because of the use by an individual of adaptive devices or aids.” MCL § 37.1302(a).
59. Plaintiffs are individuals with disabilities as the term is defined in the PDCRA, as they are legally blind. MCL § 37.1301.
60. Defendants’ refusal to implement accessible absentee ballots that can be completed independently and privately by Plaintiffs and those similarly situated is in direct violation of the PDCRA. In so doing, Defendants continue to deny Plaintiffs and those similarly situated the right to full and equal enjoyment of the right to vote—perhaps the most fundamental and critical right to a healthy and sustainable democracy.
61. Defendants have access to numerous auxiliary aides and tools designed to provide independent and private absentee voting to individuals who are blind or who have print disabilities, which can be implemented with minimal cost.
62. Defendants have long been on notice that their conduct violates state law, but they refuse to conform their policies to the very laws they swore to uphold as the stewards of Michigan’s elections, dismissing the repeated concerns raised by Mr. Wurtzel and other members of the NFBMI.
63. If Defendants do not conform their conduct to the requirements of state law, numerous individuals similarly situated to Plaintiffs will be totally excluded from the voting process due to an inability to physically access the polls and a lack of assistance at home to complete a paper ballot.
64. The injury suffered by Plaintiffs—effective exclusion from the ballot box, as well
13

Case 2:20-cv-11023-GAD-MJH ECF No. 13 filed 04/28/20 PageID.129 Page 14 of 16 as the imminent threat to their health and lives—has no adequate remedy at law. The harm is immediate and ongoing and can only be cured through injunctive relief ordering Defendants to implement an accessible absentee ballot system in time for the upcoming primary and general elections. PRAYER FOR RELIEF WHEREFORE, Plaintiffs request that this Court enter judgment in their favor and award them the following relief: 1. A preliminary and permanent injunction prohibiting Defendants from violating the ADA and the PDCRA and requiring them to offer a private and independent method of absentee voting that is accessible for Plaintiffs and those similarly situated in time for use by voters in the May 5, 2020 elections and in all future elections; 2. A declaration that Defendants have and continue to violate the ADA and the PDCRA; 3. An award of Plaintiffs’ reasonable attorney’s fees and costs; and 4. Such other and further relief as the Court may deem just and proper.
14

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/s/ Eve Hill Eve Hill (MD Federal Bar# 19938) BROWN, GOLDSTEIN & LEVY LLP 120 E. Baltimore St., Ste. 1700 Baltimore, MD 21202 Phone: 410-962-1030 Fax: 410-385-0869 ehill@browngold.com
Counsel for Plaintiff The National Federation of the Blind of Michigan

Respectfully submitted,
/s/ Jason M. Turkish Jason M. Turkish (P76310) Ryan T. Kaiser (P79491) Melissa M. Nyman (CA Bar # 293207) NYMAN TURKISH PC 20750 Civic Center Dr., Ste. 290 Southfield, MI 48076 Phone: 248-284-2480 Fax: 248-262-5024 Jason.Turkish@NymanTurkish.com Ryan.Kaiser@NymanTurkish.com Melissa.Nyman@NymanTurkish.com
David Mittleman (P37490) GREWAL LAW, PLLC 2290 Science Parkway Okemos, MI 48864 Phone: 517-393-3000 Fax: 517-393-3003 dmittleman@4grewal.com
Counsel for Plaintiffs Wurtzel and Powell

15

Case 2:20-cv-11023-GAD-MJH ECF No. 13 filed 04/28/20 PageID.131 Page 16 of 16 CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on April 28, 2020 I filed the foregoing document using the Court’s CM/ECF filing system, which will automatically generate notice of such filing to all counsel of record.
/s/ Jason M. Turkish Jason M. Turkish (P76310)
16

 
 Case 2:20-cv-11023-GAD-MJH ECF No. 24 filed 05/01/20 PageID.277 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

MICHAEL POWELL, and FRED WURTZEL, individually and on behalf of those similarly situated,
and,

Case No. 20-11023
Hon. Gershwin Drain
Mag. Judge Michael J. Hluchaniuk

THE NATIONAL FEDERATION OF THE BLIND OF MICHIGAN,

Plaintiffs,

v.

JOCELYN BENSON, MICHIGAN SECRETARY OF STATE, in her official capacity, and

JONATHAN BRATER, MICHIGAN DIRECTOR OF ELECTIONS, in his official capacity,

Defendants. /

STIPULATION AND CONSENT ORDER RESOLVING PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER [ECF # 16]
The Parties, by and through undersigned counsel, jointly stipulate to the
resolution of Plaintiffs’ Motion for Temporary Restraining Order [ECF # 16]
pursuant to the following terms:

Case 2:20-cv-11023-GAD-MJH ECF No. 24 filed 05/01/20 PageID.278 Page 2 of 7
1. Defendants will make the State’s Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) absentee ballots available to eligible voters in the State of Michigan who provide a declaration that they are blind or otherwise severely disabled, and that such disability would prevent them from being able to independently complete a paper absentee ballot, without traveling to a location accepting in-person registration and voting on May 5, 2020.
2. Any individual eligible for the relief contemplated in paragraph one must by Tuesday May 5, 2020 at 4 P.M. EST submit their application and declaration, which will be made available on the Bureau of Elections website. The application will be authenticated by a Michigan driver’s license, a Michigan state personal identification card number, or the last four digits of the voter’s social security number.
3. Any individual who submits a declaration requesting the relief contemplated in paragraph one certifies under penalty of perjury that they have a disability and require use of the UOCAVA absentee ballot in order to vote privately and independently. Such certification will be available online in an accessible manner.
4. Eligible disabled voters may submit their application and declaration to the appropriate local clerk by mail or by e-mail, and copy the Michigan Bureau
2

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of Elections. Upon receiving such a request, the clerk will record the voter as having been issued a UOCAVA ballot in the qualified voter file and forward the generated ballot to the Bureau of Elections. The Bureau of Elections will then generate a standard UOCAVA ballot and make the ballot compatible with standard screen reader technology, including Job Access with Speech (JAWS) software, by taking all steps necessary to ensure that the UOCAVA ballot allows for the insertion of tags and fillable objects so that it can be completed independently and privately by the requesting individual using standard, accessible technology, namely a screen reader program. The Bureau of Elections will then forward the accessible ballot to the requesting voter, along with instructions on how to return the ballot— including instructions to put the ballot in an envelope and sign the back of the envelope—and copy the voter’s clerk. 5. The voter will return the UOCAVA ballot to the appropriate city or township clerk’s office upon completion. Voters will be instructed to sign the back of the envelope containing the ballot. Voters may return their ballot by first-class mail, by hand-delivery to the clerk’s office in the voter’s jurisdiction, or by calling the local clerk for a pick-up of their ballot within the clerk’s jurisdiction before 4 p.m. on May 5, 2020. Voters must request
3

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pick up by 4 p.m., hand deliver by 8 p.m., or postmark the ballot on Tuesday, May 5, 2020. 6. The Michigan Bureau of Elections will ensure that all timely completed and returned UOCAVA ballots are counted in the final tabulation and certification of the May 5, 2020 elections, provided the ballots are received by the clerk by Thursday, May 7, 2020. Voters are encouraged to utilize pick-up or delivery options if they are voting on Tuesday, May 5, 2020. 7. The Court will retain the authority to take all reasonable and necessary action to ensure enforcement of this stipulation, including convening status conferences between the parties on Monday May 4, 2020, Tuesday May 5, 2020, and Friday May 8, 2020. 8. The parties agree that this stipulation applies only to the May 5, 2020 elections and does not resolve Plaintiffs’ Motion for Preliminary Injunction [ECF # 2] as to the August and November 2020 elections, as well as all future elections. 9. Defendants shall issue a press release no later than 8 P.M. today, May 1, 2020 informing eligible voters of the voting option contemplated herein. Such release shall be issued in an accessible form and include a copy of this Order. Notice of this option will also be posted on the Bureau of Elections website, along with a copy of this Order no later than 10 a.m., May 2, 2020.
4

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Respectfully submitted,
/s/ Eve Hill Eve Hill (MD Federal Bar# 19938) BROWN, GOLDSTEIN & LEVY LLP 120 E. Baltimore St., Ste. 1700 Baltimore, MD 21202 Phone: 410-962-1030 Fax: 410-385-0869 ehill@browngold.com
Counsel for Plaintiff The National Federation of the Blind of Michigan
/s/ Eric Grill Erik A. Grill (P64713) Heather S. Meingast (P55439) Assistant Attorneys General P.O. Box 30736 Lansing, Michigan 48909 517.335.7659 Email: grille@michigan.gov P64713
Counsel for Defendants

/s/ Jason M. Turkish Jason M. Turkish (P76310) Ryan T. Kaiser (P79491) Melissa M. Nyman (CA Bar # 293207) NYMAN TURKISH PC 20750 Civic Center Dr., Ste. 290 Southfield, MI 48076 Phone: 248-284-2480 Fax: 248-262-5024 Jason.Turkish@NymanTurkish.com Ryan.Kaiser@NymanTurkish.com Melissa.Nyman@NymanTurkish.com
David Mittleman David Mittleman (P37490) GREWAL LAW, PLLC 2290 Science Parkway Okemos, MI 48864 Phone: 517-393-3000 Fax: 517-393-3003 dmittleman@4grewal.com
Counsel for Plaintiffs Powell and Wurtzel

5

Case 2:20-cv-11023-GAD-MJH ECF No. 24 filed 05/01/20 PageID.282 Page 6 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

MICHAEL POWELL, and FRED WURTZEL, individually and on behalf of those similarly situated,
and, Hluchaniuk

Case No. 20-11023
Hon. Gershwin Drain Mag. Judge Michael J.

THE NATIONAL FEDERATION OF THE BLIND OF MICHIGAN,

Plaintiffs,

v.

JOCELYN BENSON, MICHIGAN SECRETARY OF STATE, in her official capacity, and

JONATHAN BRATER, MICHIGAN DIRECTOR OF ELECTIONS, in his official capacity,

Defendants. /

ORDER

WHEREFORE, The Court, having received, read, and considered the

stipulation of the parties, and good cause appearing therefrom, adopts the

stipulation of the parties in its entirety as its ORDER this 1st day of May, 2020.

6

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SO ORDERED. Dated: May 1, 2020

s/Gershwin A. Drain Hon. Gershwin A. Drain U.S. District Court Judge

7

 
 Case 2:20-cv-11023-GAD-MJH ECF No. 31 filed 05/19/20 PageID.336 Page 1 of 10

AIN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

MICHAEL POWELL, and FRED WURTZEL, individually and on behalf of those similarly situated,
and,

Case No. 20-11023
Hon. Gershwin A. Drain
Mag. Judge Michael J. Hluchaniuk

THE NATIONAL FEDERATION OF THE BLIND OF MICHIGAN,

Plaintiffs,

v.

JOCELYN BENSON, MICHIGAN SECRETARY OF STATE, in her official capacity, and

JONATHAN BRATER, MICHIGAN DIRECTOR OF ELECTIONS, in his official capacity,

Defendants. /

CONSENT DECREE JURISDICTION AND VENUE

The Court has jurisdiction of this matter pursuant to 28 U.S.C. § 1331 and 1343.

Venue is appropriate in this District pursuant to 28 U.S.C. § 1391.

BACKGROUND

1. On April 25, 2020, Plaintiffs, Michael Powell and Fred Wurtzel,

individually and on behalf of others similarly situated, and the National Federation of

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the Blind of Michigan (“NFBMI”) filed a Complaint and Motion for Preliminary Injunction against Defendants, Michigan Secretary of State Jocelyn Benson and Director of Elections Jonathan Brater (“Defendants”), in their official capacities, alleging that Defendants were violating Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12131 et seq., and the Michigan Persons with Disabilities Civil Rights Act, MCL § 37.2301 et seq., by failing to provide an absentee/mail-in voting system that is fully accessible to individuals who are blind or have print disabilities for Elections scheduled for May, August, and November, 2020, and thereafter.
2. Defendants deny the allegations in the Amended Complaint and Motion for Preliminary Injunction and assert that their entry into this Consent Decree does not constitute an admission of liability, wrongdoing, or violation of the ADA, or any other statute, regulation, or provision of any federal or state law.
3. Plaintiffs Powell and Wurtzel are blind individuals who are registered to vote in Michigan, and desire to exercise their right to vote by absentee ballot in an accessible and independent manner.
4. Plaintiff NFBMI is the Michigan affiliate of the National Federation of the Blind, an organization of individuals who are legally blind. The NFBMI is a 501(c)(3) non-profit corporation made up of blind Michiganders and their families and friends. The organization promotes the general welfare of the blind by assisting the blind in their efforts to integrate themselves into society on terms of equality and by removing barriers that result in the denial of opportunity to blind persons in virtually

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every sphere of life. 5. Defendant Secretary Benson is the chief election officer of the State of
Michigan and has supervisory control over local election officials in the performance of their duties under the Michigan Election Law, MCL 168.1 et seq. In this capacity, she oversees Michigan’s absentee voting program and maintains and operates the Secretary of State’s voter information website.
6. Defendant Director Brater is vested with the powers and shall perform the duties of the Secretary of State under the Secretary’s supervision with respect to the supervision and administration of elections laws.
7. This Consent Decree is entered into by Plaintiffs and Defendants (collectively “the Parties”) and resolves the allegations set forth above.
8. The parties agree it is in their collective best interest to resolve this lawsuit on mutually agreeable terms without further litigation. Accordingly, the Parties agree to the entry of this Consent Decree, subject to the approval of this Court, without trial or further adjudication of any issues of fact or law raised in Plaintiffs’ Amended Complaint.
In resolution of this action, the Parties hereby AGREE and the Court expressly APPROVES, ENTERS, AND ORDERS the following:
I. DEFINITIONS The following terms shall have the following meanings with respect to this

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Agreement. All other terms shall be interpreted according to their plain and ordinary meaning:
1. Unless otherwise provided in this Agreement, technical terms used in this Agreement have the same meaning as provided in the Web Content Accessibility Guidelines (“WCAG”) 2.0 published by the World Wide Web Consortium (“W3C”), available at www.w3.org/TR/WCAG/. The term “WCAG 2.0 AA” as used in this Agreement incorporates the WCAG 2.0 Level A and Level AA Success Criteria. “Accessible Forms” are forms, applications, ballots, or transactions that are electronically fillable and submissable, produce a savable confirmation of submission for users, are provided in an HTML format option, and are compliant with WCAG 2.0 AA.
2. “Print disabilities” are disabilities that interfere with the effective reading, writing, or use of printed material. This definition includes persons who are visually impaired, those with learning disabilities, as well those with a physical disability that interferes with holding and manipulating paper or a pen or pencil.
3. “Conformance” and “conform” have the same meaning as used in WCAG 2.0 AA.
4. “Effective Date” is the date of the last signature on this Agreement.
5. “Voting Program” includes, but is not limited to: (i) the opportunity provided to Michigan residents to vote privately and independently inperson at designated Polling Places or to vote by mail/absentee in lieu of voting in person; (ii) the provision of sample ballots to Michigan residents in advance of Elections; and (iii) the processes for Michigan voters to request, receive, mark and submit ballots.
II. REQUIREMENTS
Pursuant to the terms of this Consent Decree, by June 25, 2020, Defendants will implement the following:
1. Shall not exclude individuals with print disabilities, including Plaintiffs

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and their members, from participation in, or deny them the benefits of, the Voting Program’s services, programs, or activities, or subject them to discrimination with respect to Michigan’s Voting Program, 42 U.S.C. § 12132, unless the individual is otherwise ineligible from participating in the Voting Program under state or federal law.
2. Shall not provide individuals with print disabilities, including Plaintiffs and their members, an unequal opportunity to participate in or benefit from aids, benefits, or services, or provide an aid, benefit, or service that is not as effective in affording equal opportunity to gain the same result or benefit as provided to others with respect to Michigan’s Voting Program, 28 C.F.R. § 35.130(b)(1)(ii)-(iii), unless the individual is otherwise ineligible from participating in the Voting Program under state or federal law.
3. Shall take the necessary and timely steps to ensure that it furnishes appropriate auxiliary aids and services where necessary to afford individuals with print disabilities, including Plaintiffs and their members, an equal opportunity to participate in, and enjoy the benefits of, the services, programs, and activities of Michigan’s Voting Program, 28 C.F.R. § 35.160(b)(1), unless the individual is otherwise ineligible from participating in the Voting Program under state or federal law. Nothing in this order should be interpreted to require the Defendants to provide software or hardware technical support.
4. Voting at Polling Places. Defendants shall continue to ensure that all persons with print disabilities have an opportunity that is equal to the opportunity the State affords to all other persons to vote privately and independently at their designated, local Polling Place, by using an accessible voting machine.
5. Voting by Mail. Defendants shall ensure that all persons with print disabilities have an opportunity that is equal to the opportunity Michigan affords to all other persons to vote privately and independently by mail,

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subject to the provisions of this paragraph.
a. So that it may be used for the August 2020 Election, Defendants shall acquire a remote accessible vote-by-mail system (“RAVBM”) that shall allow voters with print disabilities to review and mark vote-by-mail ballots electronically, privately and independently, in accordance with the following:
i. At least 15 days before purchasing any RAVBM for the August 2020 election, Defendants shall notify Plaintiffs in writing of which RAVBM they intend to acquire, including identifying information such as the name, model number, and vendor, a summary description of the system and how it achieves accessibility, how accessibility will be monitored and maintained, and how complaints regarding accessibility will be addressed; provided that, if it is impractical to provide 15 days notice prior to purchasing a system for use in the August 2020 Election, Defendants shall notify Plaintiffs as far in advance of the purchase as possible. Defendants and Plaintiffs will commit to seeking a protective order in the event that Defendants need to share draft purchasing and other materials prior to those materials being made public.
ii. If unforeseen circumstances beyond the state’s control make it impracticable to acquire a RAVBM in time for the August 2020 Election, Defendants will inform plaintiffs immediately and no later than June 29, of the unforeseen circumstances and their impact on acquisition of the RAVBM. In such an event, Defendants will implement an expansion of the state’s UOCAVA voting system to people with print disabilities, in a manner similar to that described in the Stipulation and Consent Order Resolving Plaintiffs’ Motion for Temporary Restraining Order in this Action dated May 1, 2020, for the August 2020 Election. All other requirements of this Consent Decree that are not impracticable will remain in effect.

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b. Beginning with the August 2020 Election, and in each Election thereafter for the term of this Agreement, unless a change in federal law requires otherwise, Defendants shall, consistent with the time frame for providing absent voter ballots:
i. Provide accessible, electronic forms in HTML format through which voters with disabilities can independently request vote-by-mail ballots and certify that they are voters with disabilities. Such certification shall be no more burdensome for voters with disabilities than is required by the laws and regulations that govern RAVBM;
ii. Provide a mechanism for voters who certify that they are voters with disabilities and that their disability is unlikely to improve in the foreseeable future to be placed on a Permanent Accessible Absent Voter Application List if their jurisdiction of residence maintains a Permanent Absent Voter Application List and be provided prior to all future elections an electronic application form to apply for ballots that can be marked using the RAVBM, on the same terms and conditions as members of the jurisdiction’s Permanent Absent Voter Application List;
iii. Notify the public of the availability of the accessible request system and the RAVBM, and post information about the RAVBM in the same locations where Defendants provide information about other means of mail-in/absentee voting, including posting step-by-step instructions for how to use the RAVBM on the Secretary of State Website;
iv. Train all county and local Election officials regarding the accessible request and RAVBM through the same methods by which they train county and local Election officials on other voting processes;
v. Send or train local or county election officials to send voters with disabilities electronic ballots that can be marked using the RAVBM, along with instructions on how to use the

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RAVBM to mark and print their ballots;
vi. Permit voters with disabilities to use the acquired RAVBM to review and mark their vote-by-mail ballots electronically and to print and return those marked ballots for counting; and
vii. Train local election officials to accept and tabulate all ballots properly completed using the RAVBM that are received by the time polls close on the day of the election.
6. Reporting. Within 45 days after the August 4, 2020, Primary Election, and within 90 days after the November 3, 2020 Election, Defendants will provide Plaintiffs a report for the preceding Election containing the following information:
a. The number of individuals with disabilities who requested an accessible ballot;
b. The number of individuals who accessed the RAVBM; and c. Descriptions of any complaints or feedback received from voters
with disabilities regarding attempts to use or use of the RAVBM and descriptions of how any complaints were resolved.
III. NOTICE TO PUBLIC
Within 10 days of the Effective Date of this Consent Decree, Defendants shall issue a press release, in accordance with their ordinary procedures for doing so, regarding the Consent Decree, and post a copy of this Consent Decree on the Secretary of State Website, along with a summary of its requirements.
IV. ATTORNEYS’ FEES AND COSTS
Within 30 days of the Effective Date of this Agreement, Defendants shall pay $124,258.25 to the trust account of Nyman Turkish PC for Plaintiffs’ attorneys fees and costs. Payment will be sent to Plaintiffs’ attorneys at the following address: 20750 Civic Center Drive, Suite 290, Southfield, Michigan 48076.

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V. RELEASE
Plaintiffs waive and release any claims against Defendants and their agents, successors, and assigns, including claims for declaratory and injunctive relief and attorneys’ fees and costs, that are based on the allegations raised, or which could have been raised, in the complaint or amended complaint.
VI. TERM OF AGREEMENT
The term of this Agreement shall be 30 months from the Effective Date.
VII. NOTICES
Any notice or communication provided under this Agreement shall be made in writing and shall be delivered or sent by way of the U.S. Postal Service, private commercial carrier, hand delivery, facsimile transmission, or electronic mail to the addresses below or to such other addresses as may be specified in writing by any Party:
1. To Plaintiff National Federation of the Blind of Michigan: Eve L. Hill, Brown, Goldstein & Levy LLP, 120 East Baltimore Street, Suite 1700, Baltimore, Maryland 21202, ehill@browngold.com
2. To Plaintiffs Michael Powell and Fred Wurtzel: Jason M. Turkish, Nyman Turkish PC, 20750 Civic Center Drive, Suite 290, Southfield, Michigan 48076. Jason.Turkish@nymanturkish.com
3. To Defendants: Erik A. Grill, Assistant Attorney General, P.O. Box 30736, Lansing, MI 48909. grille@michigan.gov
IN WITNESS WHEREOF, the Parties hereto, intending to be legally bound, have
caused this Consent Decree to be executed as of the date set forth below.

Case 2:20-cv-11023-GAD-MJH ECF No. 31 filed 05/19/20 PageID.345 Page 10 of 10

SO ORDERED this 19th day of May 2020.

s/Gershwin A. Drain Hon. Gershwin A. Drain United States District Judge

The signatories represent that they have the authority to bind the respective Parties identified below to the terms of this Consent Decree.

AGREED AND CONSENTED TO:

/s/ Eve Hill Eve Hill (MD Federal Bar# 19938) BROWN, GOLDSTEIN & LEVY LLP 120 E. Baltimore St., Ste. 1700 Baltimore, MD 21202 Phone: 410-962-1030 Fax: 410-385-0869 ehill@browngold.com
Counsel for Plaintiff The National Federation of the Blind of Michigan

/s/ Jason M. Turkish Jason M. Turkish (P76310) Ryan T. Kaiser (P79491) Melissa M. Nyman (CA Bar # 293207) NYMAN TURKISH PC 20750 Civic Center Dr., Ste. 290 Southfield, MI 48076 Phone: 248-284-2480 Fax: 248-262-5024 Jason.Turkish@NymanTurkish.com Ryan.Kaiser@NymanTurkish.com Melissa.Nyman@NymanTurkish.com

/s/ Erik A. Grill Erik A. Grill (P64713) Heather S. Meingast (P55439) Assistant Attorneys General P.O. Box 30736 Lansing, Michigan 48909 517.335.7659 Email: grille@michigan.gov P64713
Counsel for Defendants

David Mittleman David Mittleman (P37490) GREWAL LAW, PLLC 2290 Science Parkway Okemos, MI 48864 Phone: 517-393-3000 Fax: 517-393-3003 dmittleman@4grewal.com
Counsel for Plaintiffs Powell and Wurtzel

 
 Case 2:20-cv-11023-GAD-MJH ECF No. 33 filed 06/29/20 PageID.362 Page 1 of 29

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

MICHAEL POWELL, and FRED WURTZEL, individually and on behalf of those similarly situated,
and,

Case No. 20-11023
Hon. Gershwin Drain Mag. Judge Michael J. Hluchaniuk

THE NATIONAL FEDERATION OF THE BLIND OF MICHIGAN,

ORAL ARGUMENT REQUESTED

Plaintiffs,

v.

JOCELYN BENSON, MICHIGAN SECRETARY OF STATE, in her official capacity, and

JONATHAN BRATER, MICHIGAN DIRECTOR OF ELECTIONS, in his official capacity,

Defendants. /

PLAINTIFFS’ MOTION FOR JUDGMENT OF CIVIL CONTEMPT AGAINST JOCELYN BENSON, JONATHAN BRATER, ERIK GRILL,
AND HEATHER MEINGAST, AND TO ENFORCE THE CONSENT DECREE [ECF # 31]
NOW COME Plaintiffs, by and through counsel, and pursuant to Fed. R.
Civ. P. 70, hereby move this Honorable Court to exercise its authority to enforce
the May 19, 2020 Consent Decree [ECF # 31] and hold Defendants Jocelyn
Benson, Jonathan Brater, and Attorneys Erik Grill and Heather Meingast in
Contempt of Court for failing to comply with the terms of the Consent Decree.

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Defendants and their counsel have made material misrepresentations to the

Court regarding the facts underlying this dispute and have failed to act in good

faith to implement the requirements of the Consent Decree. Therefore, Plaintiffs

respectfully ask this Honorable Court to issue an appropriate order enforcing the

Consent Decree, and sanctioning Defendants and their counsel, as well as ordering

expedited briefing. In support thereof, Plaintiffs rely on the attached brief and

exhibits.

Pursuant to Local Rule 7.1, on June 26, 2020 Attorney Jason Turkish

contacted counsel for Defendants to seek concurrence in the relief sought herein.

Such concurrence was not immediately forthcoming.

/s/ Eve Hill Eve Hill (MD Federal Bar# 19938) BROWN, GOLDSTEIN & LEVY LLP 120 E. Baltimore St., Ste. 1700 Baltimore, MD 21202 Phone: 410-962-1030 Fax: 410-385-0869 ehill@browngold.com
Counsel for Plaintiff The National Federation of the Blind of Michigan

Respectfully submitted,
/s/ Jason M. Turkish Jason M. Turkish (P76310) Ryan T. Kaiser (P79491) Melissa M. Nyman (CA Bar # 293207) NYMAN TURKISH PC 20750 Civic Center Dr., Ste. 290 Southfield, MI 48076 Phone: 248-284-2480 Fax: 248-262-5024 Jason.Turkish@NymanTurkish.com Ryan.Kaiser@NymanTurkish.com Melissa.Nyman@NymanTurkish.com
David Mittleman (P37490) GREWAL LAW, PLLC 2290 Science Parkway Okemos, MI 48864 Phone: 517-393-3000 Fax: 517-393-3003 dmittleman@4grewal.com

2

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Dated: June 29, 2020

Counsel for Plaintiffs Powell and Wurtzel

3

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

MICHAEL POWELL, and FRED WURTZEL, individually and on behalf of those similarly situated,
and,

Case No. 20-11023
Hon. Gershwin Drain Mag. Judge Michael J. Hluchaniuk

THE NATIONAL FEDERATION OF THE BLIND OF MICHIGAN,

Oral Argument Requested

Plaintiffs,

v.

JOCELYN BENSON, MICHIGAN SECRETARY OF STATE, in her official capacity, and

JONATHAN BRATER, MICHIGAN DIRECTOR OF ELECTIONS, in his official capacity,

Defendants. /

PLAINTIFFS’ MOTION FOR JUDGMENT OF CIVIL CONTEMPT AGAINST JOCELYN BENSON, JONATHAN BRATER, ERIK GRILL,
AND HEATHER MEINGAST, AND TO ENFORCE THE CONSENT DECREE [ECF # 31]

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TABLE OF CONENTS INDEX OF AUTHORITIES ................................................................................... iii QUESTION PRESENTED ..................................................................................... iv MOST CONTROLLING AUTHORITY ................................................................. v INTRODUCTION . ................................................................................................. 1 FACTUAL BACKGROUND. ................................................................................. 4
A. The Consent Decree. ............................................................................ 4 B. June 26, 2020 E-mail from Jonathan Brater. ........................................ 7 C. June 26, 2020 E-Mail from Erik Grill. ................................................. 7 D. Online Absentee Ballot Request System. ............................................. 9 E. Press Release. ..................................................................................... 10 ARGUMENT ......................................................................................................... 10 I. LEGAL STANDARD. ....................................................................... 10 II. DEFENDANTS ARE IN CONTEMPT BECAUSE THEY DID
NOT ACT IN GOOD FAITH TO IMPLEMENT A RAVBM SYSTEM FOR THE AUGUST ELECTION. ..................... 12 III. DEFENDANTS ARE IN CONTEMPT BY FAILING TO OFFER ONLINE ABSENTEE VOTING APPLICATIONS IN AN EQUAL MANNER. .................................................................... 15 IV. DEFENDANTS ARE IN CONTEMPT BY FAILING TO TIMELY ISSUE A PRESS RELEASE AND POST THE CONSENT DECREE. ....................................................................... 17 CONCLUSION ...................................................................................................... 18
ii

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INDEX OF AUTHORITIES

Cases

Page(s)

Frew v. Gilbert, 109 F.Supp.2d 579 (E.D. Tex. 2000).............................................................. 11, 13
Glover v. Johnson, 934 F.2d 703 (6th Cir. 1991) ................................................................................ 11
Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 31 S. Ct. 492, 55 L. Ed. 797 (1911) ................................................ 1
John B. v. Menke, 176 F. Supp.2d 786 (M.D. Tenn. 2001) ......................................................... 10, 11
Roth Steel Products v. Sharon Steel Corp., 705 F.2d 134 (6th Cir. 1983) ................................................................................ 14
Shillitani v. United States, 384 U.S. 364 (1966).............................................................................................. 11
Spallone v. U.S., 493 U.S. 265 (1990).............................................................................................. 11
Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 124 (1971).............................................................................................. 11
U.S. v. State of Tenn., 925 F.Supp. 1292 (W.D. Tenn. 1995) .................................................................. 11
United State v. Bayshore Assoc, Inc., 934 F.2d 1391 (6th Cir. 1991) .............................................................................. 11
Vanguards of Cleveland v. City of Cleveland, 23 F.3d 1013 (6th Cir. 1994) ................................................................................ 11
Williams v. Vukovich, 720 F.2d 909 (6th Cir. 1983) ................................................................................ 11

Statutes

42 U.S.C. § 12101 ................................................................................................... 10

Regulations

28 C.F.R. § 35.130(b)(1)(ii)-(iii) ...................................................................... 11, 15 28 C.F.R. § 35.160(b)(1)......................................................................................... 11

iii

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QUESTION PRESENTED Whether the Court should hold Defendants Jonathan Brater and Jocelyn Benson, as well as Attorneys Erik Grill and Heather Meingast in civil contempt and award appropriate relief where they have failed to comply with the Consent Decree entered by the Court, have made material misrepresentations to the Court, and have acted in bad faith throughout the litigation and implementation of the ordered relief?
iv

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MOST CONTROLLING AUTHORITY The most controlling authority for the relief sought includes: Fed. R. Civ. P. 70; John B. v. Menke, 176 F. Supp. 2d 786 (M.D. Tenn. 2001); Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 124 (1971); and 28 C.F.R. § 35.130(b)(1)(ii)-(iii).
v

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INTRODUCTION
"If a party can make himself a judge of the validity of orders which have been issued, and by his own act of disobedience set them aside, then are the courts impotent, and what the Constitution now fittingly calls the `judicial power of the United States' would be a mere mockery." Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 450, 31 S. Ct. 492, 55 L. Ed. 797 (1911).
On May 19, 2020, the Court entered a Consent Decree that had been
negotiated by the parties1 requiring Defendants to implement a Remote Accessible
Vote-by-Mail System (RAVBM) for the August election in order to ensure blind
voters can cast an absentee ballot privately and independently, just as non-disabled
individuals are able to. Despite their representations to the Court that a Request for
Proposals (“RFP”) for an RAVBM system was already in process in early May,
Defendants and their counsel flouted the Court’s order and waited five weeks to
issue the RFP. Defendants’ conduct violates the terms of the Order and, if
permitted, will allow Defendants to disenfranchise blind citizens in the August
elections.
1 Plaintiffs filed a motion for status conference on Friday June 26, 2020, based on the belief that Defendants’ violations of the Consent Decree were limited to the introduction of a new online absentee ballot application request system that did not offer blind voters an opportunity to request an accessible absent voter ballot. See ECF # 31. Since that time, additional investigation has revealed that Defendants have no intention of complying with multiple provisions of the Consent Decree, most notably they have no plan to implement an RAVBM system prior to the August 2020 Election, thus prompting the filing of the instant motion.
1

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Over the past week, numerous important developments have come to
Plaintiffs’ attention, including Defendants’ public acknowledgement of their
violations of the Consent Decree.2 Most notably, Defendants informed the public,
prior to informing Plaintiffs’ counsel, that they will not be implementing a
RAVBM system for the August 2020 elections because they failed to issue the
RFP until last week.3 In so doing, Defendants have treated the Consent Decree as
optional rather than mandatory.
In addition, Defendants just introduced a method for voters to apply for an
absentee ballot online that is unusable and inaccessible to the blind. As a result,
non-disabled voters are now receiving their absentee ballots—while the blind
cannot even submit a request.
Finally, the contemptuous conduct extends beyond Defendants and includes
their counsel, Erik Grill and Heather Meingast. Mr. Grill made material
misrepresentations during the status conference before this Honorable Court,
2 Despite the Consent Decree’s requirement that Defendants “continue to ensure that all persons with print disabilities have an opportunity that is equal to the opportunity the State affords to all other persons to vote privately and independently at their designated, local Polling Place,” according to a recent news story, Michigan Supreme Court Justice Richard Bernstein, who is blind, was recently turned away from his local clerk’s office because they did not have the information and training necessary to assist him in requesting an absentee ballot. ECF # 32-1, pg. 3. 3 Counsel for Defendants have repeatedly cited the RFP process as the reason a RAVBM cannot be immediately implemented—but failed to initiate the process until it was too late to ensure compliance with the Consent Decree.
2

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claiming the State had already prepared an RFP, when in fact no such RFP was issued until June 24, 2020.4 Similarly, Mr. Grill and Ms. Meingast violated the
Consent Decree by failing to comply with its reporting requirements. Instead of
informing Plaintiffs of Defendants’ determination not to comply with its
obligations, as required by the Consent Decree, Mr. Grill allowed his client,
Defendant Brater, to share developments directly with Plaintiffs Wurtzel and
Powell via email, and attempted to facilitate a meeting between the parties outside the presence of counsel.5 Defendant Benson then issued a June 26, 2020 press
release publicly announcing Defendants’ non-compliance with the Consent Decree,6 without informing Plaintiffs’ counsel. Finally, while Defendants
announced their plans not to implement accessible absentee voting on June 26,
they never complied with the Consent Decree’s requirement to issue a press release
4 See Exhibit 1, May 8, 2020 Status Conference Transcript, pg. 6 (Grill: “I believe the state is in the process of releasing an RFP for a system...”). 5 See Exhibit 2, June 26 Email from Erik Grill, pg. 2 (“The RFP was issued Wednesday. At that time, looking at the calendar, it became apparent that the purchased system would likely not be in place in time for the August primary [...] That information had been relayed to Heather and I to provide to you, but due to deadlines in a variety of other matters and because I was on a lay-off day on Thursday and prohibited from working, we did not notice...” 6 https://www.michigan.gov/sos/0,4670,7-127--533105--,00.html (last visited June 28, 2020) (“accessible application and ballot are being used for the August election as the state develops a permanent solution for November. For November, the state has launched a request for proposals and is accepting public bids now.”).
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and post a summary of the Consent Decree’s requirements within 10 days of its approval by the Court.
Defendants and their counsel have demonstrated contempt for this Court, the Consent Decree, and the blind. Collectively, they failed to take the first basic step of issuing an RFP to procure an accessible voting system in time for August, and they have introduced new voting programs without any accommodation of the needs of the blind. The potential consequences of this contemptuous conduct are catastrophic, and may only be remedied through swift and thorough remedial measures, including, but not limited to, discovery, an evidentiary hearing/oral argument, an order to appear and to show-cause, a public statement concerning the contempt, an order to implement an RAVBM system in time for the August election, an award of damages and attorneys’ fees to the named plaintiffs, and any other relief this Honorable Court deems just and proper.
FACTUAL BACKGROUND A. The Consent Decree.
On May 19, 2020, the Honorable Court signed the Consent Decree, which ostensibly resolved the instant dispute. ECF # 31. The purpose of the Consent Decree was to ensure equal access to voting for the blind and those with print disabilities. ECF # 31, pg. 4-5. The Consent Decree provides that Defendants:
2. Shall not provide individuals with print disabilities, including Plaintiffs and their members, an unequal opportunity to participate in
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or benefit from aids, benefits, or services, or provide an aid, benefit, or service that is not as effective in affording equal opportunity to gain the same result or benefit as provided to others with respect to Michigan’s Voting Program, …. Id. (emphasis added) 3. Shall take the necessary and timely steps to ensure that it furnishes appropriate auxiliary aids and services where necessary to afford individuals with print disabilities, including Plaintiffs and their members, an equal opportunity to participate in, and enjoy the benefits of, the services, programs, and activities of Michigan’s Voting Program…. Id.
The “Voting Program” is specifically defined to include
(i) the opportunity provided to Michigan residents to vote privately and independently in-person at designated Polling Places or to vote by mail/absentee in lieu of voting in person; (ii) the provision of sample ballots to Michigan residents in advance of Elections; and (iii) the processes for Michigan voters to request, receive, mark, and submit ballots. Id. (emphasis added) Under the Consent Decree’s terms, Defendants are specifically required to
“acquire a [RAVBM] system … that shall allow voters with print disabilities to
review and mark vote-by-mail ballots electronically, privately, and
independently...” Id. at 6. The Consent Decree requires this system to be in place in
time for the August 2020 primary election, and further requires Defendants to
notify Plaintiffs of the specific RAVBM selected at least 15-days prior to its
acquisition. Id.
The only exception to the RAVBM being operational in time for August is
“[i]f unforeseen circumstances beyond the state’s control make it impracticable to
acquire a RAVBM in time for the August 2020 elections...” Id. (emphasis added).
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If such unforeseen acts of God occur, the State is required to revert to making its UOCAVA voting system accessible for the August 2020 primary—the same system that was implemented as a temporary solution in the May 2020 election.7 Id. Defendants are required to “inform Plaintiffs immediately and no later than June 29, of the unforeseen circumstances and their impact on acquisition of the RAVBM.” Id. To date, no such explanation has been provided to Plaintiffs.
In addition to the RAVBM, the Consent Decree requires Defendants to offer “electronic forms in HTML format through which voters with disabilities can independently request vote-by-mail ballots and certify that they are voters with disabilities. Such certification shall be no more burdensome for voters with disabilities than is required by the laws and regulations that govern the RAVBM.” Id. at 7. The Decree also requires Defendants “continue to ensure that all persons with print disabilities have an opportunity that is equal to the opportunity the State affords to all other persons to vote privately and independently at their designated, local Polling Place….” The Consent Decree includes notice and training requirements to ensure that its material provisions are effectively implemented, id., and required Defendants to issue a press release within ten days of the effective
7 The UOCAVA ballot was a minimally workable last-minute solution for the small, local elections in May 2020. However, it will be cumbersome and unreliable in a large primary election, such as August. Plaintiffs did not bargain for a repeat of May, they bargained for the timely implementation of a permanent solution.
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date of the Decree and post a copy of the Consent Decree to the Secretary of State’s website with a summary of its requirements. Id., pg. 8.
B. June 26, 2020 E-mail from Jonathan Brater. On June 26, 2020, Defendant Jonathan Brater sent an email to members of
the blind and disability communities providing updates on voting access in the upcoming elections and inviting them to attend a meeting with Defendant Brater to discuss the progress of improving absentee voting accessibility. Exhibit 3, June 26 Email from Jonathan Brater.8
Specifically, Defendant Brater’s email announced the State’s intention to violate the Consent Decree by not launching a RAVBM in time for the August election. Ex. 3, pg. 1. Defendant Brater did not identify any “unforeseen circumstances beyond the state’s control” that prevented the State from implementing a RAVBM prior to the August election.
C. June 26, 2020 E-Mail from Erik Grill. At the May 8, 2020 Status Conference, Attorney Erik Grill told the Court
that he was aware of the primary RAVBM systems available, and “that the state is
8 Counsel for Plaintiffs were never informed that this communication was being issued, and in fact, both Plaintiffs Michael Powell and Fred Wurtzel were included on the email list. Defendants’ counsel should have advised them against engaging in communications with represented parties outside the presence of attorneys— particularly communications that would disclose a failure to perform obligations under the Consent Decree in the instant matter.
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in the process of releasing an RFP for a system at this point...” Exhibit 1, May 8, 2020 Transcript, pg. 6. At that same status conference, Mr. Grill insisted on a compressed timeline to ensure the State would have time to implement a RAVBM for the August election. Id. Again on May 14, Attorney Grill told the Court he thought the issuance of the RFP was “imminent.” Exhibit 4, May 14, 2020 Status Conference, p. 16.9
In his declaration, Defendant Brater claimed, under penalty of perjury, that over the past year he had participated in multiple meetings with disability advocates, vendors, and election experts. ECF # 17-2, Dec. of Brater, pg. 8. Defendant Brater further claimed that he had engaged in recent follow up meetings with vendors. Id. Defendant Brater also claimed that it would be impossible for the State to implement an accessible ballot option in time for the May 2020 election. Id.
Despite Defendant Brater’s and Mr. Grill’s claims that the State was well underway with the selection of a RAVBM system, on June 26, 2020, Mr. Grill informed counsel for Plaintiffs that Defendants had no intention of implementing such a system in time for August.10 Exhibit 2, June 26 Email from Erik Grill.
9 Because Mr. Grill had previously expressed to Plaintiffs’ counsel that the RFP had already been issued, Mr. Turkish expressed surprise. See Id. at p. 18 (“now we're hearing the RFP hasn't even gone out yet”) 10 Plaintiffs note that their Counsel, Jason Turkish, emailed Mr. Grill regarding his concerns for holding a meeting between the parties without their attorneys being
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Incredibly, Mr. Grill stated that “The RFP was issued on Wednesday [June 24th].” Id. Apparently, because Defendants did not issue the RFP for over five weeks after telling this Court it was nearly ready, Mr. Grill and his clients have come to the conclusion that their own actions make it impracticable to implement a RAVBM system in time for August.11 This directly contradicts Mr. Grill’s statement on the record that the State had finally issued a RFP, and Mr. Brater’s sworn statement that he had previously met with vendors.
D. Online Absentee Ballot Request System. Even while dragging their feet on compliance with the Consent Decree,
Defendants found time to develop and roll out a new system to allow Michigan voters to apply for an absentee ballot completely online. Using this system, nondisabled voters can complete an absentee ballot application online, which is automatically forwarded to the appropriate local or state official. ECF # 32-1, Letter to Erik Grill, pg. 1. Unfortunately, they did not find the time to make this system accessible for individuals with disabilities or to allow voters with disabilities to request an accessible absentee ballot through the new system. Instead, these individuals must use a separate manual application process and face
present. Exhibit 5, Email Exchange. Mr. Grill did not take this concern seriously, telling Mr. Turkish that no lawyers were allowed, and if the Plaintiffs did not like that they need not attend. 11 Defendants conveniently decided they do not have sufficient time to implement a RAVBM system on the same day they issued an RFP.
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the additional burden of having to find the location of their local clerk and mail or email the absentee ballot application directly to the clerk. This additional burden on individuals with disabilities is yet another violation of the Consent Decree.
Defendants have no excuse for introducing a new online ballot request program, without offering an equal opportunity for disabled individuals to participate. This violates the Consent Decree, and constitutes an additional violation of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq.
E. Press Release. Not until June 26, 2020, five weeks after the Consent Decree deadline, did
Defendants post a brief press release to their website stating that accessible absent voter applications are now available.12 Obviously, this release was not made within ten days of the May 19, 2020 Consent Decree, and the Decree itself or a summary thereof appears to be totally absent from Defendants’ website.
ARGUMENT I. LEGAL STANDARD.
Parties to a consent decree “have a duty to take all reasonable steps within their power to comply with the court’s order.” John B. v. Menke, 176 F. Supp.2d
12 https://www.michigan.gov/sos/0,4670,7-127--533105--,00.html (last visited June 27, 2020
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786, 806 (M.D. Tenn. 2001); quoting Glover v. Johnson, 934 F.2d 703, 708 (6th Cir. 1991) (internal quotation marks omitted). A consent decree is a “settlement agreement subject to continued judicial policing.” Vanguards of Cleveland v. City of Cleveland, 23 F.3d 1013, 1017 (6th Cir. 1994); quoting Williams v. Vukovich, 720 F.2d 909, 920 (6th Cir. 1983) (internal quotation marks omitted).
The nature of a consent decree “compels the approving court to: (1) retain jurisdiction over the decree during the term of its existence, (2) protect the integrity of the decree with its contempt powers, and (3) modify the decree if changed circumstances subvert its intended purpose.” Vanguards of Cleveland, 23 F.3d at 1018. The “courts have inherent power to enforce compliance with their lawful orders through civil contempt.” Spallone v. U.S., 493 U.S. 265, 276 (1990). “When a district court’s order is necessary to remedy past discrimination, the court has an additional basis for the exercise of broad equitable powers.” Id.; citing Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 124, 161 (1971). “Both imprisonment and fines, when coercive or conditional, are legitimate civil contempt sanctions.” U.S. v. State of Tenn., 925 F.Supp. 1292, 1301 (W.D. Tenn. 1995); citing Shillitani v. United States, 384 U.S. 364, 370 (1966); United State v. Bayshore Assoc, Inc., 934 F.2d 1391, 1400 (6th Cir. 1991).13
13 The Consent Decree explicitly incorporates the requirements of the ADA. Where a Consent Decree references federal law, the court is bound to look to the law that
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II. DEFENDANTS ARE IN CONTEMPT BECAUSE THEY DID NOT ACT IN GOOD FAITH TO IMPLEMENT A RAVBM SYSTEM FOR THE AUGUST ELECTION.
The Consent Decree unambiguously requires Defendants to implement a
RAVBM system for the August 2020 election. ECF # 31, pg. 7. This requirement
is not optional or alternative, it is mandatory. Yet the RFP, which Defendants’
counsel previously represented was “imminent,” was not issued until June 24,
2020.14 See supra. When Mr. Grill made this representation he either did so out of
ignorance or an intentional effort to mislead the Court and Plaintiffs. Nevertheless,
Defendants never took steps to comply with this vital requirement of the Consent
serves as the foundation for the four corners of the consent decree. John B., 176 F. Supp. 2d at 800; see also Frew v. Gilbert, 109 F.Supp.2d 579 (E.D. Tex. 2000) (noting that a court may stray from the four corners of a consent decree “to the extent that [Medicaid Act] requirements are clearly imported by the language of the decree.”). Under the ADA, in providing aids, benefits, or services, public entities may not “[a]fford a qualified individual with a disability an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others,” nor may public entities provide qualified individuals with disabilities “an aid, benefit, or service that is not as effective in affording equal opportunity” to gain the same result or benefit as provided to others. 28 C.F.R. § 35.130(b)(1)(ii)-(iii). Furthermore, such public entities “shall furnish appropriate auxiliary aids and services where necessary to afford 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 Defendants issued the RFP, the first ministerial step in the process, over five weeks after the entry of the Consent Decree, over five weeks after deciding to mail all voters an absentee ballot application for the August election, and most critically, the day before they began distributing absentee ballots for August to non-disabled voters. Furthermore, the State’s procurement website does not currently list the RFP as active, leaving open the question of whether Defendants have issued it at all.
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Decree and Mr. Brater recently confirmed that Defendants have no intention of implementing a RAVBM system in time for August.
The only exception under the Consent Decree is “[i]f unforeseen circumstances beyond the state’s control make it impracticable to acquire a RAVBM in time for the August 2020 Election...” ECF # 31, pg. 6 (emphasis added). Defendants’ failure to take even the very first ministerial step of issuing an RFP prior to June 24, 2020 was not a circumstance beyond the state’s control. Dragging one’s feet is not an unforeseeable circumstance leading to “impracticability,” rather it is deliberate sabotage.
Additionally, even if the timely issuance of the RFP were impracticable, the Consent Decree required Defendants to inform Plaintiffs “immediately...” Id. at pg. 6. Instead, Mr. Brater announced in his June 26, 2020 ex parte communication that the State would not be implementing a RAVBM for the August election. Not only did Defendants never inform Plaintiffs of unforeseeable or unavoidable delays in the RFP process, but Mr. Grill and Ms. Meingast waited several days to inform Plaintiffs’ counsel that an RFP had even been issued, and only in response to an inquiry from Plaintiffs’ counsel. Mr. Grill has confirmed that both he and Ms. Meingast had knowledge of the non-compliance, but were too busy with other cases to notify Plaintiffs. Ex. 2. This is an additional, unequivocal, and unacceptable violation of the Consent Decree. To date, Plaintiffs have been
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provided no explanation of why timely issuance of the RFP could not be
accomplished, as specifically required by the Consent Decree.
A party seeking to discharge its obligations under a consent decree based on
impracticability must show an unforeseeable event preventing it from performing
its obligations—“beyond the party’s control.” Roth Steel Products v. Sharon Steel
Corp., 705 F.2d 134, 149-50 (6th Cir. 1983). Defendants’ hands are unclean. It is
clear from their statements and conduct that Defendants did not act in good faith in
negotiating or implementing the Consent Decree. Prior to entering into the Consent
Decree, Defendants represented that work was well underway with vendors and an
RFP would issue immediately. It is now unequivocally clear that those statements
were misrepresentations, and Defendants never intended to comply with the
Consent Decree. Perhaps Defendants plan to argue that the last-minute ad hoc
expansion of the State’s UOCAVA system, as implemented in May, is equal to a
professional RAVBM. However, Defendants’ counsel has already foreclosed that
argument, and Plaintiffs agree. Mr. Grill informed the Court on May 14 that:
What we were able to do for the May election itself was a very short term, very specific situation where we basically took the UOCAVA overseas military ballots and the bureau of elections individually modified each ballot requested by a voter and sent that voter the ballot to be marked on. That worked okay for a May election with limited jurisdictions and only a couple school board issues. We do not believe that that type of situation represents any type of viable fix for the primary or November election. Ex. 4, Transcript of May 14, 2020 hearing at p. 21.
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III. DEFENDANTS ARE IN CONTEMPT BY FAILING TO OFFER ONLINE ABSENTEE VOTING APPLICATIONS IN AN EQUAL MANNER.
The Consent Decree and the ADA require Defendants to ensure that (1) individuals with disabilities are not excluded from the State’s voting programs, and (2) absentee ballots and applications are available to the disabled at the same time they are available to non-disabled voters. ECF # 31 pg. 4-5. Defendants’ new program allowing inaccessible online absentee ballot applications to be submitted completely online violates both these provisions, because it excludes people with disabilities. ECF # 32. As discussed above, non-disabled voters are now able to apply for an absentee ballot completely online, while individuals with disabilities requiring an accessible absentee ballot face the additional burden of locating and returning their application to their local clerk.
Defendants should not have launched this program until it was accessible for individuals with disabilities. 28 C.F.R. § 35.130(b)(1)(ii)-(iii). This disparate treatment of people with disabilities poses devastating consequences, as illustrated by a recent WDIV Detroit story stating that Michigan Supreme Court Justice Richard Bernstein, who is blind, was turned away from his local clerk’s office when he sought assistance applying for an absentee ballot.15 Justice Bernstein did
15 https://www.clickondetroit.com/news/local/2020/06/26/blind-michigansupreme-court-justice-is-turned-away-by-clerks-office-when-trying-to-getabsentee-ballot/ (last visited June 27, 2020)
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not blame the office workers, but cited an apparent lack of training or communication from the State on how to issue and assist with accessible absentee ballots. This has put the Honorable Justice in an impossible situation. He is unable to apply for an absentee ballot online because the system is unusable by blind voters and does not result in an accessible ballot, and he is unable to apply for or complete an absentee ballot in-person, because local clerks have not been trained to provide these required accommodations, and while many offices remain closed to the public during COVID-19.
Conversely, non-disabled individuals are able to apply for a ballot totally online, and upon information and belief, such individuals have already received their absentee ballots for the August 2020 election. In this dynamic, we have nondisabled individuals already receiving absentee ballots, and blind individuals still unable to even submit a request. This is an ongoing threat to the integrity of our voting systems and the rights of voters with disabilities.
Defendants’ contemptuous conduct is inexcusable. In the midst of litigation affirming that Defendants have failed to offer absentee voting in an equal manner, they have introduced a new online program that is inaccessible to people with disabilities and that will not produce an accessible ballot, all while refusing to assist voters with disabilities to complete ballots in person. Defendants are
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violating both the Decree and the ADA requirement that government services must be equally available and accessible to persons with disabilities.
IV. DEFENDANTS ARE IN CONTEMPT BY FAILING TO TIMELY ISSUE A PRESS RELEASE AND POST THE CONSENT DECREE.
As of the time of filing this motion, despite the Consent Decree’s requirement that they issue a press release and summary of the Consent Decree within 10 days, Defendants have still not even attempted to comply with the public notice requirements of the Consent Decree. Instead, Defendants posted a press release nearly 30 days after the deadline that simply stated that blind individuals may now request accessible absentee ballots—albeit using a program that, itself, violates the Decree.16 The Consent Decree and summary thereof is conspicuously absent from the website. No press release has been issued informing the public of the Decree, or of the availability of accessible absentee ballots. This failure to notify the public of the relief required by the Decree has undermined its purpose and threatens to once again disenfranchise the blind community.
Defendants could not be bothered to comply with even this most basic requirement. They have demonstrated contempt, not only for this Court and its Order, but for Michigan’s voters with disabilities. Just weeks after acknowledging their absentee ballot program excluded blind voters, Defendants introduced a new
16 https://www.michigan.gov/sos/0,4670,7-127--533105--,00.html (last visited June 27, 2020)
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system, with no viable option for the blind and others with disabilities. Clearly, Defendants are in need of additional motivation and oversight if the purpose of the Consent Decree—ensuring voting access for the blind—is to be fulfilled.
CONCLUSION For all these reasons, Plaintiffs ask this Honorable Court to hold Defendants Jonathan Brater and Jocelyn Benson, as well as their Counsel, Erik Grill and Heather Meingast, in contempt. Defendants did not act in good faith in entering into the Consent Decree, and they are in material breach of its express terms. Defendants have failed to take steps as basic as timely issuing an RFP and posting the Consent Decree to their website. Their failure to implement a RAVBM system for the August 2020 election was of their own doing—not due to unforeseeable circumstances beyond their control. This Court has broad authority to order an appropriate remedy, including ordering the individual Defendants to appear and show cause for their failure to fulfill the requirements of the Decree. For Mr. Grill’s part, he has made material misrepresentations to this Court and attempted to facilitate an ex parte meeting between the parties outside the presence of counsel—conduct that is contrary to his ethical duties, and that threatens the integrity of the Consent Decree as well as the voting rights of the blind. Mr. Grill and Ms. Meingast also failed to notify Plaintiffs, as required by the Consent Decree, that the State would not be pursuing a RAVBM option for August
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because they were too busy with other matters, depriving Plaintiffs of valuable time to remedy Defendants’ non-compliance prior to August.
Defendants have not made a good faith effort to comply with the Consent Decree, and in fact, they demonstrated bad faith during the negotiation process. Accordingly, Plaintiffs respectfully ask this Honorable Court issue an order directing the following relief:
 Order expedited briefing on the instant motion so that a judicial remedy may be available in time for the August election;
 Order Defendants Brater and Benson to appear personally to show cause for their failure to comply with the Consent Decree;
 Order the parties to engage in discovery to learn the full extent of contempt;  Schedule oral arguments and an evidentiary hearing on the instant motion;  Order an award of damages, fines, and reasonable attorney’s fees to the
named Plaintiffs for having to bring this enforcement motion;  Order Defendants to immediately comply with the requirement that they
obtain and implement a RAVBM system in time for the August Election (either by waiving or expediting the RFP process);  Order the appointment of a third-party monitor, to be selected by the Court, and paid for by Defendants, to ensure continued day-to-day to compliance by Defendants through the expiration of the consent decree;
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 Order Defendants to issue a press release informing the electorate of their

deliberate violations of the Consent Decree and their plan for remediation—

in order to prevent further disenfranchisement of the blind community; and

 Order any and all other relief necessary to compel compliance with the

Consent Decree and to prevent the disenfranchisement of Michigan’s voters

with disabilities in upcoming elections.

/s/ Eve Hill Eve Hill (MD Federal Bar# 19938) BROWN, GOLDSTEIN & LEVY LLP 120 E. Baltimore St., Ste. 1700 Baltimore, MD 21202 Phone: 410-962-1030 Fax: 410-385-0869 ehill@browngold.com
Counsel for Plaintiff The National Federation of the Blind of Michigan

Respectfully submitted,
/s/ Jason M. Turkish Jason M. Turkish (P76310) Ryan T. Kaiser (P79491) Melissa M. Nyman (CA Bar # 293207) NYMAN TURKISH PC 20750 Civic Center Dr., Ste. 290 Southfield, MI 48076 Phone: 248-284-2480 Fax: 248-262-5024 Jason.Turkish@NymanTurkish.com Ryan.Kaiser@NymanTurkish.com Melissa.Nyman@NymanTurkish.com
David Mittleman (P37490) GREWAL LAW, PLLC 2290 Science Parkway Okemos, MI 48864 Phone: 517-393-3000 Fax: 517-393-3003 dmittleman@4grewal.com

Dated: June 29, 2020

Counsel for Plaintiffs Powell and Wurtzel

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on June 29, 2020 I filed the foregoing document and attached exhibits using the Court’s CM/ECF filing system, which will automatically generate notice of such filing to all counsel of record.
/s/ Jason M. Turkish Jason M. Turkish (P76310)
21

 
 Case 2:20-cv-11023-GAD-MJH ECF No. 36 filed 06/29/20 PageID.438 Page 1 of 6

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MICHAEL POWELL and FRED WURTZEL, individually and on behalf of those similarly situated,

No. 2:20-cv-11023

and

HON. GERSHWIN A. DRAIN

THE NATIONAL FEDERATION OF THE

BLIND OF MICHIGAN,

Plaintiffs, v

JOCELYN BENSON, Michigan Secretary of State in her official capacity and JONATHAN BRATER, Michigan Director of Elections in his official capacity,

Defendants.

Jason M. Turkish (P76310) Ryan T. Kaiser P79491) Melissa M. Nyman (CA Bar #293207) Attorneys for Plaintiffs Powell & Wurtzel 20750 Civic Center Drive, Ste 290 Southfield, Michigan 48076 248.284.2480
David S. Mittleman (P37490) Attorney for Plaintiffs Powell & Wurtzel 2290 Science Parkway Okemos, Michigan 48864 517.393.3000
/

Heather S. Meingast (P55439) Erik A. Grill (P64713) Assistant Attorneys General Attorneys for Defendants Benson & Brater P.O. Box 30736 Lansing, Michigan 48909 517.335.7659
Eve Hill Attorney for Plaintiff Nat’l Fed of the Blind of Michigan 120 E. Baltimore St, Ste 1700 Baltimore, Maryland 21202 410.962.1030

DEFENDANTS’ AMENDED STATUS REPORT 06/29/2020

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Pursuant to the Court’s request this morning for a status update by 2:00 p.m. this afternoon, the Defendants state as follows1:
Because the Department of State does not have the ability to issue a Request for Proposal (RFP) on its own, it worked closely with other agencies (e.g. the Michigan Department of Technology, Management, & Budget (DTMB) and the Michigan Department of Civil Rights) to determine and ensure that all state security and accessibility requirements are met—emphasizing the importance of the project as well as the timing. Although the Defendants had developed a draft of the documents in early May, 2020, there were multiple revisions and changes based on directions from these other agencies before reaching a final version. Neither of the named Defendants in this case—the Secretary of State or the Director of Elections—has supervisory or command authority over any of these other agencies. The Department of State worked expeditiously since early-to-mid May to complete the RFP with these other agencies in order to allow vendors to bid on the remote accessible vote-by-mail (RAVBM) system as quickly as
1 Defendants are aware that Plaintiffs have requested that their motion for contempt—filed this morning five minutes after the Court’s request—serve as their status report. In that motion, Plaintiffs raise a number of new issues for the first time, and Plaintiffs were obviously able to spend more time on that document than Defendants are able to here. Defendants intend to file a complete response to the motion at a later time, and this report will instead focus on updating the Court on the ballot application issue raised in Plaintiffs’ request for status conference and the Defendants’ progress on implementing the new accessible absent voter ballot system.
2

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possible. However, the process was made more difficult by the inability to meet in person because of the ongoing COVID-19 pandemic, and many agency staff members have been required to take temporary furlough days because of budget shortfalls affecting the state government.
The RFP, including attachments, is a 103-page document that includes detailed product requirements, technical specifications, and legal requirements. (Exhibit A.) During the time while the RFP was being developed, the Defendants did not know the exact date on which the RFP would be issued. The RFP was issued as soon as it was finalized on June 24. Vendors have until July 17 – only 23 days – to submit proposals. With proposals being submitted through July 17, the Department of State determined it would not be practicable to launch an RAVBM system based on the RFP in time for use for the August 4, 2020 Election. Requests for absent voter ballots to be mailed to voters are due the Friday before the election – in this case July 31. Even if a vendor could be selected and the process purchased in time for July 31, it would be impractical to launch a new RAVBM process right before the election.
While the RFP process to purchase an RAVBM was ongoing, the Department of State was also working on an alternative system, based on an expansion of the UOCAVA voting system, that would allow voters to be emailed accessible electronic ballots until the longer term solution was available. This
3

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alternative system was contemplated and allowed under the terms of the Consent Decree. (R.31, PgID 341, ¶5(a)(ii)). To allow an accessible application for an accessible electronic voter ballot, the Department of State had to develop three components: (1) An application that voters can use to request the ballot; (2) an accessible ballot that can be read using assistive technology; (3) Software changes to the Qualified Voter File to allow local clerks to issue accessible AV ballots to voters.
(1) Electronic Accessible AV Ballot Application On June 25, the Department of State launched the electronic accessible absent voter ballot application. This application is available along with other absent voter ballot applications on the Bureau of Elections Website. The application allows a voter to verify that he or she has a qualifying disability and apply for an accessible absent voter ballot. Unlike other absent voter ballot applications, the accessible application does not require a signature. The voter need provide only his or her driver’s license/State ID number or the last 4 digits of the voter’s social security number. The voter can either print and mail the application or save and email the application to the voter’s clerk. (2) Accessible Ballot Read by Assistive Technology The Department of State also developed a version of the electronic ballot issued to military and overseas voters (“MOVE” Ballot or “UOCAVA” Ballot) that
4

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can be read and marked with screen readers. The August ballot is complex - it contains many races and includes both partisan and non-partisan sections. Voters may only vote in one partisan section – not both – or the ballot will not be counted. Because of the complexity of the ballot, the development and testing of this version of an accessible electronic ballot took longer than the May ballot (which typically contains 1 or 2 questions). Nevertheless, the Department of State was able to complete development and launch the accessible electronic absent voter ballot.
(3) Software Changes to QFF Finally, the Department of State had to change programming on the Qualified Voter File to allow local election clerks to issue accessible electronic absent voter ballots to voters who request them. This programming has also been completed, so that clerks can use the Qualified Voter File to issue accessible electronic ballots to voters. After voters request an accessible electronic absent voter ballot, the local clerk emails the voter the ballot. The voter can mark the ballot electronically using assistive technology. The voter then prints the ballot, places it in an envelope, and signs the back of the envelope. The voter can then mail or deliver the ballot envelope so that it arrives by Election Day. The clerk verifies that the signature on the envelope matches the signature on the voter’s record, as is done with other
5

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absent voter ballots. The availability of the new system was shared on a Bureau of

Elections News Update on June 25 and a Department of State Press Release on

June 26, 2020.

Respectfully submitted,

DANA NESSEL Attorney General

Dated: June 29, 2020

s/Erik A. Grill Erik A. Grill (P64713) Heather S. Meingast (P64713) Assistant Attorneys General Attorneys for Defendants Benson & Brater P.O. Box 30736 Lansing, Michigan 48909 517.335.7659 Email: grille@michigan.gov P64713

CERTIFICATE OF SERVICE
I hereby certify that on June 29, 2020, I electronically filed the above document(s) with the Clerk of the Court using the ECF System, which will provide electronic copies to counsel of record.

s/Erik A. Grill Erik A. Grill (P64713) Assistant Attorney General P.O. Box 30736 Lansing, Michigan 48909 517.335.7659 Email: grille@michigan.gov P64713

6

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EXHIBIT A

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STATE OF MICHIGAN Department of Technology, Management and Budget
Procurement
Request For Proposal No.200000001856 Accessible Absentee Ballots
Solicitation Manager Name: Christopher Martin Telephone Number: 517-643-2833
DTMB-Procurement Telephone Number 1-855-MI-PURCH (1-855-647-8724) E-Mail Address: martinc20@michigan.gov

This is a Request for Proposal (RFP) for Electronically Deliverable and Easily Accessible Absentee Voting Ballots for Voters with Disabilities.

Anticipated Timeline

Issue Date Deadline Date Bidder to Submit Questions Anticipated Date State will Post Answers to Bidder Questions Deadline to Submit Proposals* Anticipated Contract Begin Date

3:00 p.m. ET 3:00 p.m. ET

6/24/2020 7/2/2020
7/9/2020
7/17/2020 9/1/2020

*A proposal received at 3:00:01 p.m. Eastern is considered late.

The information in this document is subject to change. Check www.michigan.gov/SIGMAVSS for the current information.

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STATE OF MICHIGAN

Request For Proposal No. 200000001856 Accessible Absentee Ballots

PROPOSAL INSTRUCTIONS

1. RESPONSE PREPARATION. The State recommends reading all RFP materials prior to preparing a proposal, particularly these Proposal Instructions and the Bidder Information Exhibit. Bidders must follow these Proposal Instructions and provide a complete response to the items indicated in the table below. References and links to websites or external sources may not be used in lieu of providing the information requested in the RFP within the proposal. Include the Bidder’s company name in the header of all documents submitted with your proposal.

RFP Structure and List of RFP Documentation

Document
Cover Page
Proposal Instructions
Confidential Treatment Form
Exhibit A – Project Scope Exhibit A, Table 1 Business Specification Worksheet Exhibit A, Attachment 1 Resume Templates Exhibit B – Vendor Question Worksheet Exhibit C – Pricing Integration List
Contract Terms and Conditions
Schedule C – Maintenance and Support Schedule

Description Provides RFP title and number, important dates, and contact information for Solicitation Manager Provides RFP instructions to Bidders Required verification on whether bidder’s proposal contains confidential information Project Scope details and requirements
Business requirements
Key Personnel Resume Template
Background and Experience
Pricing List of all applications that the solution needs to integrate with
This document provides the Contract Terms for any contract awarded from this RFP.
If the system will be hosted by the State, this document provides the Maintenance and Support requirements for any contract awarded from this RFP.

Bidder Response Instructions
Informational
Informational Required verification on whether bidder’s proposal contains confidential information To be completed by Bidders
To be completed by Bidders
To be completed by Bidders
To be completed by Bidders To be completed by Bidders Informational Deemed accepted by Bidder unless written exceptions in accordance with the Evaluation Section are provided to State with Bidder’s proposal. Deemed accepted by Bidder unless written exceptions in accordance with the Evaluation Section are provided to State with Bidder’s proposal.

Schedule D – Service Level Agreement

If the system will be Contractor Deemed accepted by Bidder hosted, this document provides unless written exceptions in the Service Level Agreement for accordance with the Evaluation

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Schedule E – Disaster Recovery Plan

any contract awarded from this RFP. If the system will be Contractor hosted, this Schedule is a placeholder for the Bidder to provide their Disaster Recovery Plan as Schedule D – Disaster Recovery Plan

Schedule F – Data Security Requirements

This document provides the Data Security Requirements for any contract awarded from this RFP.

Schedule G – Federal Provisions Addendum

This Schedule is required for purchases that will paid for in whole or part with federal funds

Section are provided to State with Bidder’s proposal. To be provided by Bidders and subject to negotiation.
Deemed accepted by Bidder unless written exceptions in accordance with the Evaluation Section are provided to State with Bidder’s proposal. These provisions are required and are not negotiable.

2. CONTACT INFORMATION FOR THE STATE. The sole point of contact for the State concerning this RFP is listed on the Cover Page. Contacting any other State personnel, agent, consultant, or representative about this RFP may result in Bidder disqualification.

3. QUESTIONS. Bidder questions about this RFP must be emailed to the Solicitation Manager no later than the time and date specified on the Cover Page. In the interest of transparency, only written questions are accepted. Answers to questions will be posted on www.michigan.gov/SIGMAVSS. Submit questions using the format below; a Microsoft Excel format or similar is suggested.

Bidders should submit their questions using the following format:

Document and

Page# /

Q #

Section

Requirement#

Bidder Question

4. MODIFICATIONS TO RFP. The State may modify the RFP at any time. Changes will be posted on www.michigan.gov/SIGMAVSS. This is the only method by which the RFP may be modified. The posted changes will automatically revise the original RFP.

5.

DELIVERY OF PROPOSAL. The Bidder must submit its proposal, all attachments, and any

modifications or withdrawals electronically through http://www.michigan.gov/SIGMAVSS. The price

proposal should be saved separately from all other proposal documents. The Bidder should provide the

documents in a modifiable form (e.g., Microsoft Word or Excel), but has the option to also provide copies

of any documents in a non-modifiable form (e.g., PDF). Bidder’s failure to submit a proposal as required

may result in disqualification of such proposal. The proposal and attachments must be fully uploaded and

submitted prior to the due date identified above. Do not wait until the last minute to submit the bid, as the

SIGMA VSS system requires the creation of an account and entry of certain information, in addition to

uploading and submitting the materials. The SIGMA VSS system will not allow a proposal to be submitted

after the due date and time identified above.

Please note: each attachment submitted for the bidder proposal must not exceed 6MB.

Questions on how to submit information or how to navigate in the SIGMA VSS system can be answered by calling (517) 284-0540 or (888) 734-9749. The Solicitation Manager will not provide assistance related to the submittal of the proposal and all attachments on the day of the proposal deadline. Responsibility for a complete submission lies with the bidder.

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6. MANDATORY MINIMUM REQUIREMENTS. To avoid disqualification, the Bidder must provide documentation to support the following:
Mandatory Minimum Requirements After supplying identifying information, voters with disabilities must be able to access the appropriate ballot for their jurisdiction using their own devices.
The onscreen ballot must be accessible by screen readers (many combinations of screenreading programs, browsers, and operating systems).
The onscreen ballot must be accessible by “Sip-and-puff” devices (using straw-type device).

The onscreen ballot must be markable on screen and printable.

Must have successfully implemented accessible absentee ballots in at least one other state.

Only those proposals that meet the mandatory minimum requirements will be considered for evaluation.

7. EVALUATION PROCESS. If all mandatory minimum requirements are met, The State will evaluate each proposal based on the following factors:

Evaluation Criteria Name Vendor Question Worksheet, Key Personnel Resumes

Evaluation Weight 30.00

Business/Technical Requirements

40.00

Implementation Plan/Schedule

Total Weight

30.00 100.00

Proposals receiving 80 or more evaluation points will have pricing evaluated and be considered for award.
The State may utilize all Bidder information, without regard to a proposal’s technical score, to determine fair market value for goods or services sought. The State is not obligated to accept the lowest price proposal. If applicable, the State’s evaluation will include consideration of a Bidder’s qualified disabled veteran (QDV) status under MCL 18.1261(8). Additional information on the QDV preference is available at: http://michigan.gov/micontractconnect/0,4541,7-225-48677-123519--,00.html.
The State strongly encourages strict adherence to the Contract Terms. The State reserves the right to deem a bid non-responsive for failure to accept the Contract Terms. Nevertheless, the Bidder may submit proposed changes to the Contract Terms in track changes (i.e., visible edits) with an explanation of the Bidder’s need for each proposed change. Failure to include track changes with an explanation of the Bidder’s need for the proposed change constitutes the Bidder’s acceptance of the Contract Terms. General statements, such as that the Bidder reserves the right to negotiate the terms and conditions, may be considered non-responsive.
The State may, but is not required to, conduct an on-site visit to tour and inspect the Bidder’s facilities, require an oral presentation of the Bidder’s proposal, attend a proof of concept meeting, conduct

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interviews with Bidders, or request additional price concessions at any point during the evaluation process.
The State may deduct points or reject a proposal if the Bidder fails to demonstrate to the State’s satisfaction the viability or functionality of the goods or services at the proof of concept meeting, on-site visit tour, oral presentations, or during Bidder interviews.
8. NOTICE OF DEFICIENCY. The State reserves the right to issue a Notice of Deficiency to Bidders if the State determines after the proposal deadline that a portion of the RFP was deficient, unclear, or ambiguous. Failure to respond to a Notice of Deficiency timely may be cause for disqualification.
9. CLARIFICATION REQUEST. The State reserves the right to issue a Clarification Request to a Bidder to clarify its proposal if the State determines the proposal is not clear. Failure to respond to a Clarification Request timely may be cause for disqualification.
10. RESERVATIONS. The State reserves the right to:
a. Disqualify a Bidder for failure to follow these instructions. b. Discontinue the RFP process at any time for any or no reason. The issuance of an RFP,
your preparation and submission of a proposal, and the State’s subsequent receipt and evaluation of your proposal does not commit the State to award a contract to you or anyone, even if all the requirements in the RFP are met. c. Consider late proposals if: (i) no other proposals are received; (ii) no complete proposals are received; (iii) the State received complete proposals, but the proposals did not meet mandatory minimum requirements or technical criteria; or (iv) the award process fails to result in an award. d. Consider an otherwise disqualified proposal, if no other proposals are received. e. Disqualify a proposal based on: (i) information provided by the Bidder in response to this
RFP; (2) the Bidder’s failure to complete registration on www.michigan.gov/SIGMAVSS; or (3)
if it is determined that a Bidder purposely or willfully submitted false or misleading information in response to the RFP. f. Consider prior performance with the State in making its award decision. g. Consider overall economic impact to the State when evaluating proposal pricing and in the final award recommendation. This includes but is not limited to: considering principal place of performance, number of Michigan citizens employed or potentially employed, dollars paid to Michigan residents, Michigan capital investments, job creation, tax revenue implications, and economically disadvantaged businesses. h. Consider total-cost-of-ownership factors (e.g., transition and training costs) when evaluating proposal pricing and in the final award recommendation. i. Refuse to award a contract to any Bidder that has failed to pay State taxes or has outstanding debt with the State. j. Enter into negotiations with one or more Bidders on price, terms, technical requirements, or other deliverables. k. Award multiple, optional-use contracts, or award by contract activity. l. Evaluate the proposal outside the scope identified in the Evaluation Process Section, if the State receives only one proposal.
11. AWARD RECOMMENDATION. The contract will be awarded to the responsive and responsible Bidder who offers the best value to the State, as determined by the State. Best value will be determined by the Bidder meeting the minimum point threshold and offering the best combination of the factors stated in the Evaluation Process Section, and price, as demonstrated by the proposal. The State will post a Notice of Recommendation for Award on www.michigan.gov/SIGMAVSS
12. STATE ADMINISTRATIVE BOARD. Contracts in excess of $250,000 require approval by the State

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Administrative Board. The State Administrative Board’s decision is final; however, its approval does not constitute a contract. The award process is not complete until the awarded contractor receives a contract fully executed by all parties.
13. DEBRIEF MEETINGS AND PROTEST. The State will post an Award Recommendation and Evaluation Synopsis, which will provide instructions on how to request a debrief meeting.
If you wish to initiate a protest of the award, you must submit your written protest electronically at BidProtest-DTMB@michigan.gov no later than 3:00 p.m. Eastern, 5 calendar days after posting the Notice of Recommendation for Award on SIGMA VSS, or by 3:00 p.m. Eastern, the next business day if that date falls on a state holiday or weekend. The State reserves the right to adjust this timing and will publish any change on the SIGMA VSS system.
Additional information about the protest process is available at www.michigan.gov/micontractconnect under the “Programs and Policies” link.
14. GENERAL PROPOSAL CONDITIONS. The State will not be liable for any costs, expenses, or damages incurred by a Bidder participating in this solicitation. The Bidder agrees that its proposal will be considered an offer to do business with the State in accordance with its proposal, including the Contract Terms, and that its proposal will be irrevocable and binding for a period of 180 calendar days from date of submission. If a contract is awarded to the Bidder, the State may, at its option, incorporate any part of the Bidder’s proposal into a contract. This RFP is not an offer to enter into a contract. This RFP may not provide a complete statement of the State’s environment, or contain all matters upon which agreement must be reached. Other than verified trade secrets, proposals submitted via www.michigan.gov/SIGMAVSS are the State’s property.
15. CONFIDENTIAL TREATMENT FORM AND THE FREEDOM OF INFORMATION ACT. All portions of the bidder’s proposal and resulting contract are subject to disclosure as required under Michigan’s Freedom of Information Act (FOIA), MCL 15.231, et seq. However, some information may be exempt from disclosure. Under MCL 18.1261(13)(b), records containing “a trade secret as defined under section 2 of the uniform trade secrets act, 1998 PA 448, MCL 445.1902,” are exempt from disclosure under FOIA. In addition, “financial or proprietary information” submitted with a bidder’s proposal is exempt from disclosure under FOIA. A bidder’s failure to comply with this Section is grounds for rejecting a bidder’s proposal as non-responsive. As a part of its proposal, each bidder must follow the procedure below.
a. SUBMIT A COMPLETED “CONFIDENTIAL TREATMENT FORM” (CT FORM) WITH YOUR BID. Completion and submission of the CT Form is required regardless of whether the bidder seeks confidential treatment of information. Failure to submit a completed CT Form may be cause for disqualification from the solicitation process.
i. Complete and sign Section 1 of the CT Form if the bidder does NOT request confidential treatment of information contained in its proposal; or
ii. Complete and sign Section 2 of the CT Form if the bidder requests confidential treatment of certain information. Bidder must also submit a “Public Copy” of the proposal with the trade secret, financial, and proprietary information redacted and clearly labeled as the “Public Copy.”

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b. FOIA REQUESTS. If a FOIA request is made for a bidder’s proposal, the Public Copy may be distributed to the public along with the bidder’s CT Form. The CT Form is a public document and serves as an explanation for the redactions to the Public Copy. Do not put any trade secret, financial, or proprietary information in the CT Form. Do not redact the CT Form itself.
c. NO ADVICE. The State will not advise a bidder as to the nature or content of documents entitled to protection from disclosure under FOIA or other laws, as to the interpretation of such laws, or as to the definition of trade secret or financial or proprietary information. Nothing contained in this provision will modify or amend requirements and obligations imposed on the State by FOIA or other applicable law.
d. FAILURE TO REQUEST CONFIDENTIAL TREATMENT. Failure to request material be treated as confidential as specified herein relieves the State, its agencies, and personnel from any responsibility for maintaining material in confidence.
e. Bids containing a request to maintain an entire proposal as confidential may be rejected as non-responsive. Bidders may not request confidential treatment with respect to resumes, pricing, and marketing materials. The State reserves the right to determine whether material designated as exempt by a bidder falls under MCL 18.1261 or other applicable FOIA exemptions. If a FOIA request is made for materials that the bidder has identified as trade secret, financial, or proprietary information, the State has the final authority to determine whether the materials are exempt from disclosure under FOIA.
f. Bidder forever releases the State, its departments, subdivisions, officers, and employees from all claims, rights, actions, demands, damages, liabilities, expenses and fees, which arise out of or relate to the disclosure of all or a portion of bidder’s proposal submitted under this RFP. Bidder must defend, indemnify and hold the State, its departments, subdivisions, officers, and employees harmless, without limitation, from and against all actions, claims, losses, liabilities, damages, costs, attorney fees, and expenses (including those required to establish the right to indemnification), arising out of or relating to any FOIA request, including potential litigation and appeals, related to the portion of bidder’s proposal submitted under this RFP that bidder has identified as a trade secret, or financial or proprietary information. The State will notify bidder in writing if indemnification is sought. The State is entitled to: (i) regular updates on proceeding status; (ii) participate in the defense of the proceeding; (iii) employ its own counsel; and to (iv) retain control of the defense, or any portion thereof, if the State deems necessary. Bidder will not, without the State’s written consent (not to be unreasonably withheld), settle, compromise, or consent to the entry of any judgment in or otherwise seek to terminate any claim, action, or proceeding. If a State employee, official, or law is involved or challenged, the State may control the defense of that portion of the claim. Any litigation activity on behalf of the State, or any of its subdivisions under this Section, must be coordinated with the Department of Attorney General. An attorney designated to represent the State may not do so until approved by the Michigan Attorney General and appointed as a Special Assistant Attorney General.

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STATE OF MICHIGAN
CONFIDENTIAL TREATMENT FORM (CT FORM)
Page 1 of 2
INSTRUCTIONS. Complete either Section 1 or Section 2 of this CT Form and sign where indicated. This CT Form must be signed by the individual who signed the bidder’s proposal. A completed CT Form must be submitted with your proposal, regardless of whether your proposal contains confidential information. Failure to submit a completed CT Form with your bid is grounds for rejecting the proposal as non-responsive. See Section Error! Reference source not found. Of the Proposal Instructions for additional information.

Section 1. Confidential Treatment Is Not Requested
This section must be completed, signed, and submitted with the proposal if bidder does not request confidential treatment of any material contained in the proposal.
By signing below, the bidder affirms that confidential treatment of material contained in the proposal is not requested.

200000001856 _____ RFP Number

_____________

Accessible Absentee Ballots RFP Title

____________________________________ Signature

_____________________ Date

____________________________________ [Printed Name] [Title] [Company]

Section 2. Confidential Treatment Is Requested
The section must be completed, signed, and submitted with the proposal if bidder requests confidential treatment of any material contained in the proposal. Submission of a completed CT Form is required to request confidential treatment.
Provide the information in the table below. Bidder may add rows or additional pages using the same format shown in the table. Bidder must specifically identify the information to be protected as confidential and state the reasons why protection is necessary. The CT Form will not be considered fully complete unless, for each confidentiality request, the bidder: (1) identifies whether the material is a trade secret (TS), financial information (FI), or proprietary information (PI); (2) explains the specific legal grounds that support treatment of the material as TS, FI, or PI; and (3) provides the contact information for the person at bidder’s organization authorized to respond to inquiries by the State concerning the material. Bidders must not simply cite to an applicable act or case name; rather, bidders must provide a complete justification as to how the material falls within the scope of an applicable act or relevant case law.

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STATE OF MICHIGAN
CONFIDENTIAL TREATMENT FORM (CT FORM)
Page 2 of 2

RFP page #, State

paragraph #, whether the

and section material is a

#

trade secret

(TS),

financial

information

(FI), or

proprietary

information

(PI)

Explain the specific grounds in State or other applicable law which supports treatment of the material as TS, FI, or PI. Do not simply cite to the applicable act. Provide a complete justification as to how the material falls within the scope of the applicable act or relevant case law.

Provide the bidder contact information

By signing below, the bidder affirms that confidential treatment of material contained in its proposal is requested and has attached to this form a redacted “Public Copy” of the bidder’s proposal.

_ 200000001856_____________________ RFP Number

Accessible Absentee Ballots RFP Title

____________________________________ Signature

_____________________ Date

____________________________________ [Printed Name] [Title] [Company]

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STATE OF MICHIGAN

Request For Proposal No. 200000001856 Accessible Absentee Ballots

EXHIBIT A PROJECT SCOPE

This Exhibit identifies the anticipated requirements of any Contract resulting from this RFP.

The Bidder must respond to each Section, requirement or question, and explain how it will fulfill each requirement. Attach any supplemental information and appropriately reference within your response.

Contractor refers to a Bidder responding to this RFP. Contractor and Bidder are referred to interchangeably throughout these documents.

1. DEFINITIONS The following terms have the meanings set forth below. All initial capitalized terms that are not defined below shall have the respective meanings given to them in Section 1 of the Contract Terms and Conditions. “Solution” means the Contractor or State hosted Commercial-Off-the-Shelf (COTS) software solution that the State is seeking under this RFP.

Term

Definition

DTMB

Department of Technology, Management, and Budget

MDOS PAT QVF

Michigan Department of State
A document or product accessibility template, including any Information Technology Industry Council Voluntary Product Accessibility Template or VPAT®, that specifies how information and software products, such as websites, applications, software and associated content, conform to WCAG 2.0 Level AA.
Qualified Voter File

SOS

Secretary of State

WCAG 2.0 Level AA

Level AA of the World Wide Web Consortium (W3C) Web Content Accessibility Guidelines (WCAG) version 2.0.

2. BACKGROUND Customer service is the operative phrase of the secretary of state’s office. The Department of State is tasked with delivering modern, efficient, cost-effective and convenient service, achieved with innovation, technology, and the energy, vision and experience of its valuable team members. The Bureau of Elections is seeking a solution to make voting accessible, to all, at home, by providing an accessible absentee voting ballot that works with all assistive technologies and can be used by voters with disabilities.

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3. PURPOSE Provide an accessible A/V ballot that works with all assistive technologies that can be used by voters with disabilities. Accessible ballot production and processing for any Michigan election at all levels. Using the Qualified Voter File (QVF) to identify and issue accessible ballots to all eligible voters to comply with Americans with Disabilities Act of 1990, ADA Amendments Act of 2008, Michigan Election Law, Michigan Constitution.
4. CONTRACT TERM The contract overall term is expected to be 5 years with 5, 1-year options.
5. SPECIFIC STANDARDS IT Policies, Standards and Procedures (PSP) Contractors are advised that the State has methods, policies, standards and procedures that have been developed over the years. Contractors are expected to provide proposals that conform to State IT policies and standards. All services and products provided as a result of this RFP must comply with all applicable State IT policies and standards. Contractor is required to review all applicable links provided below and state compliance in their response.
Public IT Policies, Standards and Procedures (PSP): https://www.michigan.gov/dtmb/0,5552,7-358-82547_56579_56755---,00.html
Note: Not all applicable PSP's are available publicly. Controlled PSP's applicable to the RFP are available after signing and returning to the State the required Nondisclosure Agreement (NDA).
Acceptable Use Policy To the extent that Contractor has access to the State’s computer system, Contractor must comply with the State’s Acceptable Use Policy, see https://www.michigan.gov/documents/dtmb/1340.00.01_Acceptable_Use_of_Information_Technology_St andard_458958_7.pdf
All Contractor Personnel will be required, in writing, to agree to the State’s Acceptable Use Policy before accessing the State’s system. The State reserves the right to terminate Contractor’s access to the State’s system if a violation occurs.
Look and Feel Standard All software items provided by the Contractor must adhere to the State of Michigan Application/Site Standards which can be found at www.michigan.gov/standards.
Mobile Responsiveness The Bidder’s Solution must utilize responsive design practices to ensure the application is accessible via a mobile device. Bidders must provide a list of all mobile devices that are compatible with the Solution. Additionally, Bidder must provide list of features that can be performed via a mobile device.
Accessibility Requirements The State is required to comply with the Americans with Disabilities Act of 1990 (ADA) and has adopted standards and procedures regarding accessibility requirements for websites and software applications. All websites, applications, software, and associated content and documentation provided by the Contractor as part of the Solution must comply with Level AA of the World Wide Web Consortium (W3C) Web Content Accessibility Guidelines (WCAG) 2.0.
Contractor must provide a description of conformance with WCAG 2.0 Level AA specifications by providing a completed PAT for the Solution. If the Solution is comprised of multiple products, a PAT must be provided for each product. In addition to PATs, Contractors may include a verification of conformance

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certified by an industry-recognized third-party. If the Contractor is including any third-party products in the Solution, Contractor must obtain and provide the third-party PATs as well.

Each PAT must state exactly how the product meets the specifications. All "Not Applicable" (N/A) responses must be fully explained. Contractor must address each standard individually and with specificity; and clarify whether conformance is achieved throughout the entire product (for example - user functionality, administrator functionality, and reporting), or only in limited areas. A description of the evaluation methods used to support WCAG 2.0 Level AA conformance claims, including, if applicable, any third-party testing, must be provided. For each product that does not fully conform to WCAG 2.0 Level AA, Contractor must provide detailed information regarding the plans to achieve conformance,
including timelines.
Bidder must acknowledge their agreement with this section and provide details for how they will meet the requirements.

6. USER TYPE AND CAPACITY

Type of User

Access Type

Public Citizens State Employees
Contractors Local Government (Clerks and Staff)

Read Only Admin Access
Read Only
Admin Access

Number of Users
10,000 20 20
2,000

Number of Concurrent Users
1,000 10 10
500

Bidder must be able to meet the expected number of concurrent Users. Bidder must explain how it will be able to support the expected number of concurrent Users. Bidder must also explain whether the Solution can scale up or down without affecting performance.

Bidder must provide details regarding latency response time for (i.e., Generate Page Load, standardized reporting, ad hoc reporting). The Bidder must identify what network connectivity or equipment will the State be required to have to meet the expected latency response time.

7. DATA RETENTION Bidder to describe what its capabilities are for data retention (storage limitations, duration, etc.).

8. SECURITY Bidder must review the Data Security requirements set forth in Schedule F – Data Security Requirements to the Terms and Conditions. Bidder must note any exceptions to the security requirements by redlining Schedule F – Data Security Requirements.

The Solution will be storing sensitive data.

Bidder must describe how it will comply with the following and provide supporting evidence as part of their proposal:

• Must provide a GovCloud solution that is hosted in a Federal Risk and Authorization Management Program (FedRAMP) authorized computing environment..
• Must be encrypted in transit and at rest using FIPS validated encryption modules with AES encryption and a key size of 256 bits or higher.
• Must have multi-factor authentication for privileged/administrative and other identified access, however this level does not require a hard token at this time. The use of restricted methods such as SMMS text with passcode, phone call with temporary passcode or some other approved multifactor methods may be appropriate based on data classification and level of access.

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• Must remain compliant with FISMA and the NIST Special Publication 800-53 (most recent version) MOD controls using minimum control values as established in the applicable SOM PSP’s.
9. END-USER OPERATING ENVIRONMENT Contractor must accommodate the latest browser versions (including mobile browsers) as well as some pre-existing browsers. To ensure that users with older browsers are still able to access online services, applications must, at a minimum, display and function correctly in standards-compliant browsers and the state standard browser without the use of special plugins or extensions. The rules used to base the minimum browser requirements include:
• Over 2% of site traffic, measured using Sessions or Visitors (or) • The current browser identified and approved as the State of Michigan standard
This information can be found at www.michigan.gov/browserstats. Please use the most recent calendar quarter to determine browser statistics. For those browsers with over 2% of site traffic, except Internet Explorer which requires support for at minimum version 11, the current browser version as well as the previous two major versions must be supported.
Bidder must support the current and future State standard environment at no additional cost to the State.
Bidder must: • Describe any State system access requirements that are necessary for the Bidder to perform its obligations on a timely basis, including but not limited to, physical or remote access to State networks, servers, or individual workstations. • Describe if it can comply with the current environment and how it intends to comply with any future changes to the user environment. And if not, describe what end user operating environment its solution supports. • Describe if it can support the original environment throughout the term of the contract. • Describe how it communicates changes to its roadmaps. • Identify any plug-ins necessary for the proposed solution to meet the system requirements of this request. • Describe how customers collaborate with your organization in the decision-making process for upgrades, maintenance, and change control.
10. SOFTWARE Bidder must provide a detailed description of the Solution to be provided under the resulting Contract including, but not limited to, a detailed description of the proposed Software (name, type, version, release number, etc.), its functionality, optional add-on modules, Contractor’s services and the Solution ability to be rapidly configured or scaled as the State’s business or technical demands change. If Bidder is using any open source or third-party products in connection with the proposed Solution the Bidder must identify these separately in its proposal (including identifying any associated cost in Exhibit C - Pricing).
For third-party products that are being proposed as part of the overall Solution, Bidder must include any end-user license agreements that will be required to access and use such products.
11. SOLUTION REQUIREMENTS Bidder must fully answer each section in this Exhibit A - Project Scope and complete the attached Exhibit A - Table 1 Business Specification Worksheet.
Bidder must explain the proposed approach to validate each requirement to ensure that the Solution meets the specifications set forth in this RFP.

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Bidder must detail any configuration changes that will be made to the Solution in order to meet the specifications set forth in this RFP.
Configuration is referred to as a change to the Solution that must be completed by the awarded Bidder prior to Go-Live but allows an IT or non-IT end user to maintain or modify thereafter (i.e. no source code or structural data model modifications occurring).
All configuration changes made during the term of the awarded contract must be forward-compatible with future releases and be fully supported by the awarded Bidder without additional costs.
Bidder shall understand that customizations (i.e. changes made to the underlying source code of the Solution) may not be considered and may impact the evaluation of the Bidder's proposal.
12. INTEGRATION Bidder must review and explain how the Solution will integrate with the systems listed in the Integration List provided by the State. Bidder must interface with and recover from the Qualified Voter File (QVF).
13. MIGRATION There are no migration services needed at this time, however the State may need migration services in the future.
14. TESTING SERVICES AND ACCEPTANCE Bidder must review Section 11, Acceptance Testing, of the Contract Terms.
15. TRAINING SERVICES Classroom and online training for both End Users and Administrators, Online tutorial for Public. Training for less than 2000 End Users and less than 40 Administrators – provide options for both online and classroom training.
The Bidder must provide administration and end-user training for implementation, go-live support, and transition to customer self-sufficiency. The Bidder must provide available training options and include details such as: typical class size, materials to be provided, accessibility, class duration, on-site or web based. The Bidder must provide a training plan for go-live support and transition to self-support, including options and details such as the number of dedicated personnel, staff location, hours available and duration of go-live support.
Bidder must provide details on, and examples of, clearly written instructions and documentation to enable State administrators and end-users to successfully operate the Solution without needing to bring in additional Contractor support.
16. HOSTING BY CONTRACTOR Bidder must review the State’s standard Service Level Agreement (SLA) attached as Schedule D to the Terms and Conditions. Bidder must note any exceptions to the SLA by redlining Schedule D – Service Level Agreement.
Bidder must maintain and operate a backup and disaster recovery plan beginning 45 days prior to election to achieve a Recovery Point Objective (RPO) of 24 hours reducing to 4 hours starting 14 days before an election, and a Recovery Time Objective (RTO) of 24 hours beginning 45 days prior to election and reducing to 4 hours starting 14 days before an election. Bidder must include a copy of its Disaster Recovery Plan as Schedule E part of their proposal, which will be treated by the State as confidential information.
17. SUPPORT AND OPERATIONS

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If Contractor hosted, Bidder must review the State’s standard Service Level Agreement (SLA) attached as Schedule D to the Terms and Conditions. Bidder must note any exceptions to the SLA by redlining Schedule D – Service Level Agreement.
If State hosted, Bidder must review the State’s Maintenance and Support schedule attached as Schedule C to the Terms and Conditions. Bidder must note any exceptions to the Maintenance and Support schedule C by redlining Schedule C – Maintenance and Support.
Support Hours The State requires the Contractor to provide Support Hours as Normal Business hours 8 am to 5 pm Eastern Time. However, bidder must provide Support Hours 24x7 for 45 days prior to elections. Provide phone number, including TTY
18. DOCUMENTATION Bidder must provide all user manuals, operating manuals, technical manuals and any other instructions, specifications, documents or materials, in any form or media, that describe the functionality, installation, testing, operation, use, maintenance, support, technical or other components, features or requirements of the Software.
Bidder must develop and submit for State approval complete, accurate, and timely Solution documentation to support all users, and will update any discrepancies, or errors through the life of the contract.
The Contractor’s user documentation must provide detailed information about all software features and functionality, enabling the State to resolve common questions and issues prior to initiating formal support requests.
Bidder must provide details on, and examples of, documentation to meet the requirements set forth in this section.
19. TRANSITION SERVICES Upon termination or expiration of the agreement, Contractor must, for a period of time specified by the State (not to exceed 90 calendar days), provide all reasonable transition assistance requested by the State, to allow for the expired or terminated portion of the agreement to continue without interruption or adverse effect, and to facilitate the orderly transfer of the services to the State or its designees. Such transition assistance may include but is not limited to: (a) continuing to perform the services at the established rates; (b) taking all reasonable and necessary measures to transition performance of the work, including all applicable services to the State or the State’s designee; (c) taking all necessary and appropriate steps, or such other action as the State may direct, to preserve, maintain, protect, or return (in a format specified by the State) to the State all data stored in the solution; and (d) preparing an accurate accounting from which the State and Contractor may reconcile all outstanding accounts.
Bidder must provide a detailed transition-in and transition-out plan, including any roles or responsibilities expected of the State. The plan must adequately demonstrate the steps to migrate between Bidder’s solution and internal or third-party solutions.
20. PRODUCTS AND SERVICES Bidder must describe additional Solution functionality, products or services that the State specifications do not address but are necessary to implement and support this solution.
21. CONTRACTOR KEY PERSONNEL Bidder must identify all Contractor resources and responsibilities required for the successful implementation and ongoing support of the Solution.

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Bidder must complete the following for each Contractor Key Personnel and Exhibit A- Attachment 1 – Personnel Resumes
Contractor Contract Administrator. Bidder must identify the individual appointed by it to (a) administer the terms of this Contract, and (b) approve and execute any Change Notices under this Contract.
Contractor Name: Address: Phone: Email:
Contractor Project Manager. Bidder must identify the Contractor Project Manager who will serve as the primary contact with regard to services who will have the authority to act on behalf of the Contractor in matters pertaining to the implementation services.
Contractor Name: Address: Phone: Email:
Contractor Service Manager. Bidder to provide name of individual to serve as primary contact with respect to the Services, who will have the authority to act on behalf of Contractor in matters pertaining to the receipt and processing of Support Requests and the Support Services.
Contractor Name: Address: Phone: Email :
Contractor Security Officer. Bidder to provide name of individual to respond to State inquiries regarding the security of the Contractor’s systems. This person must have sufficient knowledge of the security of the Contractor Systems and the authority to act on behalf of Contractor in matters pertaining thereto.
Contractor Name: Address: Phone: Email :
22. CONTRACTOR PERSONNEL REQUIREMENTS The Contractor must present certifications evidencing satisfactory Michigan State Police Background checks ICHAT and drug tests for all staff identified for assignment to this project.
In addition, proposed Contractor personnel will be required to complete and submit an RI-8 Fingerprint Card for the National Crime Information Center (NCIC) Finger Prints, if required by project.
Contractor will pay for all costs associated with ensuring their staff meets all requirements.
Bidder must describe how they will meet the requirements set forth in this section.

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23. STATE RESOURCES/RESPONSIBILITIES The State will provide the following resources as part of the implementation and ongoing support of the Solution.
State Contract Administrator. The State Contract Administrator is the individual appointed by the State to (a) administer the terms of this Contract, and (b) approve and execute any Change Notices under this Contract.
State Project Manager. The State Project Manager will serve as the primary contact with regard to implementation Services who will have the authority to act on behalf of the State in approving Deliverables, and day to day activities.
Agency Business Owner. The Agency Business Owner will serve as the primary contact for the business area with regard to business advisement who will have the authority to act on behalf of the State in matters pertaining to the business Specifications.
State Technical Lead. The State Technical Lead will serve as the primary contact with regard to technical advisement.
Contract Owner. The Contract Owner is the DTMB Business Relationship Manager supporting the Agency Business Owner’s agency.
Bidder must identify all State resources and responsibilities required for the successful implementation and ongoing support of the Solution.
24. MEETINGS The resulting awarded Bidder must attend the following meetings at no additional cost to the State.
At start of the engagement, the Contractor Project Manager must facilitate a project kick off meeting with the support from the State’s Project Manager and the identified State resources to review the approach to accomplishing the project, schedule tasks and identify related timing, and identify any risks or issues related to the planned approach. From project kick-off until final acceptance and go-live, Contractor Project Manager must facilitate weekly meetings (or more if determined necessary by the parties) to provide updates on implementation progress. Following go-live, Contractor must facilitate monthly meetings (or more or less if determined necessary by the parties) to ensure ongoing support success.
If Bidder has an alternative planned approach for project meetings, provide details, including purpose, roles and responsibilities, and proposed frequency.
Bidder must describe how they will meet the meeting requirements set forth above and note any exceptions for successful implementation and ongoing support of the Solution.
25. PROJECT CONTROL & REPORTS Once the Project Kick-Off meeting has occurred, the Contractor Project Manager will monitor project implementation progress and report on a weekly basis to the State’s Project Manager the following:
• Progress to complete milestones, comparing forecasted completion dates to planned and actual completion dates
• Accomplishments during the reporting period, what was worked on and what was completed during the current reporting period
• Indicate the number of hours expended during the past week, and the cumulative total to date for the project. Also, state whether the remaining hours are sufficient to complete the project.
• Tasks planned for the next reporting period • Identify any existing issues which are impacting the project and the steps being taken to address
those issues

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• Identify any new risks and describe progress in mitigating high impact/high probability risks previously identified
• Indicate the amount of funds expended during the current reporting period, and the cumulative total to date for the project.

All Contractors must submit and enter weekly timesheets into the State of Michigan’s Project Portfolio Management tool, Clarity PPM, for approval and reporting. The weekly Clarity PPM timesheet will contain hours worked for assigned project tasks.

Bidder must describe specific reports the Contractor will provide after contract execution and during the lifecycle of the contract, including all required scheduled reporting and details around the how and when metrics captured/validated.

26. MILESTONES AND DELIVERABLES The State’s proposed milestone schedule and associated deliverables are set forth below. These should be considered maximums and bidders are who can deliver a solution sooner while meeting security requirements should document appropriately for best value consideration.

Milestone Event
Project Planning Requirements and Design Validation
Configuration of software Testing and Acceptance
Production Support Services

Associated Milestone Deliverable(s)
Project Kickoff
Validation sessions, Final Requirement Validation Document, Final Design Document, Final Implementation Document Final Solution and Testing Document
Final Test Results Report, Final Training Documentation, Final Acceptance Ongoing after Final Acceptance.

Schedule Contract Execution + 10 days Execution + 20 days
Execution + 40 days Execution + 60 days
Ongoing

Bidder may propose alternative timeframes and deliverables, but Bidder must provide an explanation as to why the State’s schedule and associated deliverables is not feasible.

Bidder must provide a Work Breakdown Structure (WBS) that corresponds with the milestone dates set forth above (or with Bidder’s alternatively proposed schedule). The WBS must be detailed enough to identify all State and Contractor responsibilities.

The Contractor Project Manager will be responsible for maintaining an MS Project schedule (or approved alternative) identifying tasks, durations, forecasted dates and resources – both Contractor and State required to meet the timeframes as agreed to by both parties.

Changes to scope, schedule or cost must be addressed through a formal change request process with the State and the Contractor to ensure understanding, agreement and approval of authorized parties to the change and clearly identify the impact to the overall project.

SUITE Documentation In managing its obligation to meet the above milestones and deliverables, the Bidder is required to utilize the applicable State Unified Information Technology Environment (SUITE) methodologies, or an equivalent methodology proposed by the Bidder.

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SUITE’s primary goal is the delivery of on-time, on-budget, quality systems that meet customer expectations. SUITE is based on industry best practices, including those identified in the Project Management Institute’s PMBoK and the Capability Maturity Model Integration for Development. It was designed and implemented to standardize methodologies, processes, procedures, training, and tools for project management and systems development lifecycle management. It offers guidance for efficient, effective improvement across multiple process disciplines in the organization, improvements to best practices incorporated from earlier models, and a common, integrated vision of improvement for all project and system related elements.
While applying the SUITE framework through its methodologies is required, SUITE was not designed to add layers of complexity to project execution. There should be no additional costs from the Bidder, since it is expected that they are already following industry best practices which are at least similar to those that form SUITE’s foundation.
SUITE’s companion templates are used to document project progress or deliverables. In some cases, Bidders may have in place their own set of templates for similar use. Because SUITE can be tailored to fit specific projects, project teams and State project managers may decide to use the Contractor’s provided templates, as long as they demonstrate fulfillment of the SUITE methodologies.
The Bidder is required to review http://www.michigan.gov/suite and demonstrate how each PMM/SEM requirement will be met. Bidders wishing to use their own documents must submit an example of the document that will be substituted. If the Bidder deems a document to be non-applicable, please provide reasons for the determination. The State reserves the right to give final approval of substituted documents and items marked as non-applicable.
Bidder must describe how they will meet the requirements set forth above and note any exceptions for successful implementation and ongoing support of the Solution.
27. LIQUIDATED DAMAGES Late or improper completion of the Contract Activities will cause loss and damage to the State and it would be impracticable and extremely difficult to fix the actual damage sustained by the State. Therefore, if there is late or improper completion of the Contract Activities the State is entitled to collect liquidated damages in the amount of $5,000 and an additional $100 per day for each day Contractor fails to remedy the late or improper completion of the Work.
Unauthorized Removal of Key Personnel will interfere with the timely and proper completion of the Contract, to the loss and damage of the State, and it would be impracticable and extremely difficult to fix the actual damage sustained by the State. Therefore, the State may assess liquidated damages against Contractor as specified below.
The State is entitled to collect $1,000 per individual per day for the removal of any Key Personnel without prior approval of the State.
The State is entitled to collect $1,000 per individual per day for an unapproved or untrained key personnel replacement.
28. PRICING Bidder must provide in Exhibit C - Pricing a detailed description of all costs associated with implementing, maintaining and supporting the Solution, including all requested services set forth in the RFP. Bidder is encouraged to provide tiered pricing discounts based on volume.
If Contractor reduces its prices for any of the software or services during the term of this Contract, the State shall have the immediate benefit of such lower prices for new purchases. Contractor shall send

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notice to the State’s Contract Administrator with the reduced prices within fifteen (15) Business Days of the reduction taking effect. Travel and Expenses The State does not pay for overtime or travel expenses. 29. ADDITONAL INFORMATION The State reserves the right to purchase any additional services or products from the Contractor during the duration of the Contract.

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STATE OF MICHIGAN
Request For Proposal No. 200000001856 Accessible Absentee Ballots
EXHIBIT A – Table 1 BUSINESS SPECIFICATION WORKSHEET
Instructions for Completing the Business Specifications Worksheet
Bidders must respond to each business Specification on how they will meet the requirements in the document provided. Bidder must not alter the document. The Business Specifications Worksheet contains columns and is defined as follows: Column A: Business Specification number.
Note: • If there is a “Mandatory Minimum” section included in the Business Specifications Worksheet, any items listed under this section must be met by Bidder
to avoid disqualification. Further, Bidder must provide adequate documentation to support such Mandatory Minimum requirements. • The “Required” section of the Business Specifications Worksheet lists items that the State requires to be part of the Solution. “Required” items will be
evaluated and scored upon per the State evaluation process. • The “Optional” section of the Business Specifications Worksheet lists items that are not required at the time of the solicitation but may be desired by the
State in the future. Such “Optional” items will be evaluated and used in a best value award recommendation
Column B: Business Specification description.
Column C: Bidder must indicate how it will comply with the business Specification. Bidder must enter “Y” to one of the following: • Current Capability – This capability is available in the proposed system with no additional configuration or cost • Requires Configuration – This capability can be met through Contractor-supported changes to existing settings and application options as part of the initial implementation at no additional cost (e.g., setting naming conventions, creating user-defined fields) • Requires Customization – This capability can be met through Contractor supported changes to the existing source code as part of the initial implementation. Indicate whether additional cost will be required by checking the box, include the cost of the customization in Exhibit C - Pricing • Future Enhancement – This capability is a planned enhancement to the base software and will be available within the next 12 months at no additional cost after contract award. • Not Available – This capability is not currently available, and a future enhancement is not planned.
NOTE: Configuration is referred to as a change to the Solution that must be completed by the awarded Bidder prior to Go-Live but allows an IT or non-IT end user to maintain or modify thereafter (i.e. no source code or structural data model changes occurring). Further, all configuration changes must be forward-compatible with future releases and be fully supported by the awarded Bidder without additional costs. Customizations (i.e. changes made to the underlying source code of the Solution) may not be considered and may impact the evaluation of the Bidder's proposal.
Column D: The Bidder must also fully disclose how they will meet the requirements in their proposal response. This column is for Bidder to describe how they will deliver the business Specification and if the Bidder proposes configurations, the Bidder must explain the details of the impacted risk that may be caused if configured to meet the business Specification. Description must be no more than 250 words for each business Specification.

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Current Capability Requires Configuration Requires Customization Future Enhancement Not Available Additional Cost Required

Requirem ent
Number Mandatory Minimums

Description The following requirements must be met or the bid will be disqualified.

1.

After supplying identifying information, voters with

disabilities must be able to access the appropriate ballot

for their jurisdiction using their own devices.

2.

The onscreen ballot must be accessible by screen

readers (many combinations of screen-reading programs,

browsers, and operating systems).

3.

The onscreen ballot must be accessible by “Sip-and-puff”

devices (using straw-type device).

4.

The onscreen ballot must be markable on screen and

printable.

5.

Contractor must have successfully implemented

accessible absentee ballots in at least one other state.

Preferred The following requirements are preferred by the State

6. 7. 8. Standard

Solution must be capable of securely importing ballot data from state Qualified Voter File into accessible ballot format with little or no alteration to Qualified Voter File internal data format or export capabilities. Solution must be usable with all currently used assistive technologies on all platforms and adaptable to new assistive technology as they are developed.
Solution must follow the format and order provided for the by the State. Adhering to the following standards https://www.michigan.gov/documents/sos/BallotStandard s_517320_7.pdf?x=1 The following requirements are desired by the State.

Bidder Comments/Response

9.
10. 11. 12. 13. Optional 14. 15. 16.

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Solution must produce accessible ballot that can be reviewed, and read back so that voter can review choices and make desired changes at all stages of ballot saving and production (for example, if solution produces a pdf file that is printed, the ballot should be capable of being read back within ballot marking solution and from pdf or other file generated prior to printing). Solution must provide a secure platform for voter to read ballot instructions and remotely marking accessible ballots.
Solution must provide voter with the same ballot options as the standard (non-absentee) ballot appropriate for that voter, including but not limited to the ability to write-in a candidate name for a contest. Solution must prevent the voter from selecting more than the allowable number of selections for a ballot contest and provides voter with an error message when attempted. Solution must warn the voter when attempting to proceed to the next ballot contest if less than the allowable number of selections for a ballot contest were selected and requires voter to confirm before proceeding. The following requirements are considered desirable but optional.
Solution should be capable of printing ballots that can be read by ballot tabulators and high-speed scanners produced by Dominion, Election Systems, & Software, and Hart Intercivic election management systems. Solution should allow or may be programmed to allow for remote ballot marking by other categories of voters who may receive ballots electronically, such as military and overseas voters. Solution should allow test ballots to be generated and user tested with all assistive technologies.

17. Describe any planned future enhancements (including any improvements that may be required by legislative mandate for electronic issuance or returns).

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STATE OF MICHIGAN

Request For Proposal No. 200000001856 Accessible Absentee Ballots Exhibit A, Attachment 1 PERSONNEL RESUMES
The Contractor must complete and submit Résumés for:
Key Personnel Contract Administrator Contractor Project Manager Contractor Service Manager Contractor Security Officer
The Contractor must use the Résumé Summary Template provided in this attachment. Résumés for personnel should not exceed four (4) pages each in length.
Résumés for key personnel must include relevant skills, experience, and references.
It is acceptable for one person to fill multiple key positions for this project. However, a key résumé template must be completed for each key position to demonstrate that the required skills and experience are met, and the proposal must demonstrate that the individual is assigned to the project for sufficient hours to meet the requirements of all roles for which they have been designated.
The State may evaluate such criteria as time spent by the personnel directly supporting the proposed Solution, and comparable size, scope and complexity of implementations accomplished.
The Contractor must submit a Letter of Commitment for key personnel who will be assigned to the Contract, signed by the identified resource, stating their commitment to work for the Contractor on this project contingent on award of the bid. If the identified personnel are currently assigned to another State project the Contractor must provide a letter signed by the State Program Manager releasing the individual from the other project upon execution of the Contract.

Proposed Resource Name:
Proposed Classification:
Key Personnel:
If resource is associated with a subcontractor provide name of company:
Percentage of time resource will be allocated to project:

Contract Administrator Yes _or No 

Contractor: List the skills and experience that qualify the individual for the duties and responsibilities on this project for the proposed role. Provide the name of the project(s) and the year(s) the experience was obtained.
The experience requirements detailed in the RFP are restated as follows:

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Required Skills
5 years of experience facilitating, documenting and monitoring Contractor responsibilities and activities in the fulfillment of Contract requirements.

Bidder’s Response Does resource have this required skill: Yes  or No 
Description of skills and experience:
Name of project(s) and year(s) experience was obtained:

Excellent communication and organization skills required

Does resource have this required skill: Yes  or No  Description of skills and experience:

Name of project(s) and year(s) experience was obtained:

Education: Bachelor’s degree

List your degree and the conferring institution;

List client references for work performed to meet the requirements stated above, and all projects the proposed resource has worked on in the last three (3) years. A minimum of three (3) references are required. By submission of this information, the Bidder and identified key person authorize the State of Michigan to contact references and previous employers provided to verify the accuracy of the information. Provide the identified information for each:

Start Date: Client/Project: Employer: Title/Percentage of time: Description:

End Date:

Start Date: Client/Project: Employer: Title/Percentage of time: Description:

End Date:

Start Date: Client/Project: Employer: Title/Percentage of time: Description:

End Date:

EDUCATION
Degree (i.e. PhD, Master’s, Bachelors) Program

Education Major(s) area of study:

Year Completed: Minor area of study:

University

Degree (i.e. PhD, Master’s, Bachelors)

Additional Education

Year Completed:

Case 2:20-cv-11023-GAD-MJH ECF No. 36-2 filed 06/29/20 PageID.471 Page 27 of 104

Program

Major(s) area of study:

Minor area of study:

University

TRAINING – Provide any relevant technical or professional training related to the role resource will be providing on this project.

Course Name Topic Date taken

Technical or Professional Training (include credit hours if applicable)

Name Topic/Description Date completed

Certifications/Affiliations

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Proposed Resource Name:
Proposed Classification:
Key Personnel:
If resource is associated with a subcontractor provide name of company:
Percentage of time resource will be allocated to project:

Contractor Project Manager Yes _or No 

Contractor: List the skills and experience that qualify the individual for the duties and responsibilities on this project for the proposed role. Provide the name of the project(s) and the year(s) the experience was obtained.
The experience requirements detailed in the RFP are restated as follows:

Required Skills
5 years of experience managing projects of similar size and scope of this RFP.

Bidder’s Response Does resource have this required skill: Yes  or No 
Description of skills and experience:

Name of project(s) and year(s) experience was obtained:

5 years of experience facilitating meetings w/ clients & stakeholders

Does resource have this required skill: Yes  or No  Description of skills and experience:

Name of project(s) and year(s) experience was obtained:

Excellent communication and organization skills required
Ability to motivate and guide staff to ensure accurate, efficient, and timely delivery of service

Does resource have this required skill: Yes  or No 
Description of skills and experience:
Name of project(s) and year(s) experience was obtained:

Education: Bachelor’s degree Certification: Project Management Professional or Scrum Certification

List your degree and the conferring institution;

List client references for work performed to meet the requirements stated above, and all projects the proposed resource has worked on in the last three (3) years. A minimum of three (3) references are required. By submission of this information, the Bidder and identified key person authorize the State of Michigan to contact references and previous employers provided to verify the accuracy of the information. Provide the identified information for each:

Start Date: Client/Project: Employer:

End Date:

Case 2:20-cv-11023-GAD-MJH ECF No. 36-2 filed 06/29/20 PageID.473 Page 29 of 104

Title/Percentage of time: Description:

Start Date: Client/Project: Employer: Title/Percentage of time: Description:

End Date:

Start Date: Client/Project: Employer: Title/Percentage of time: Description:

End Date:

EDUCATION
Degree (i.e. PhD, Master’s, Bachelors) Program

Education Major(s) area of study:

Year Completed: Minor area of study:

University

Degree (i.e. PhD, Master’s, Bachelors) Program

Additional Education Major(s) area of study:

Year Completed: Minor area of study:

University

TRAINING – Provide any relevant technical or professional training related to the role resource will be providing on this project.

Course Name Topic Date taken

Technical or Professional Training (include credit hours if applicable)

Name Topic/Description Date completed

Certifications/Affiliations

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Proposed Resource Name:
Proposed Classification:
Key Personnel:
If resource is associated with a subcontractor provide name of company:
Percentage of time resource will be allocated to project:

Contractor Service Manager Yes : or No 

Contractor: List the skills and experience that qualify the individual for the duties and responsibilities on this project for the proposed role. Provide the name of the project(s) and the year(s) the experience was obtained.

The experience requirements detailed in the RFP are restated as follows:

Required Skills 4 years of business experience in the management of provision of services as the primary point of contact.

Contractor’s Response Does resource have this required skill: Yes  or No 
Description of skills and experience:

Name of project(s) and year(s) experience was obtained:

3 years of experience in managing organizational change and facilitating problem resolution.

Does resource have this required skill: Yes  or No  Description of skills and experience:

Name of project(s) and year(s) experience was obtained:

Education: Bachelor’s degree

List degree and the conferring institution beyond high school if applicable;

List client references for work performed to meet the requirements stated above, and all projects the proposed resource has worked on in the last three (3) years. A minimum of three (3) references are required. By submission of this information, the contractor and identified key person authorize the State of Michigan to contact references and previous employers provided to verify the accuracy of the information. Provide the identified information for each:

Start Date: Client/Project: Employer: Title/Percentage of time: Description:

End Date:

Start Date: Client/Project: Employer: Title/Percentage of time:

End Date:

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Description:

Start Date: Client/Project: Employer: Title/Percentage of time: Description:

End Date:

EDUCATION
Degree (i.e. PhD, Master’s, Bachelors) Program

Education Major(s) area of study:

Year Completed: Minor area of study:

University

Degree (i.e. PhD, Master’s, Bachelors) Program

Additional Education Major(s) area of study:

Year Completed: Minor area of study:

University

TRAINING – Provide any relevant technical or professional training related to the role resource will be providing on this project.

Course Name Topic Date taken

Technical or Professional Training (include credit hours if applicable)

Name Topic/Description Date completed

Certifications/Affiliations

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Proposed Resource Name:
Proposed Classification:
Key Personnel:
If resource is associated with a subcontractor provide name of company:
Percentage of time resource will be allocated to project:

Contractor Security Officer Yes : or No 

Contractor: List the skills and experience that qualify the individual for the duties and responsibilities on this project for the proposed role. Provide the name of the project(s) and the year(s) the experience was obtained.

The experience requirements detailed in the RFP are restated as follows:

Required Skills Minimum of 2 years’ experience working in a Cloud environment
Strong grounding in information security principles

Contractor’s Response Does resource have this required skill: Yes  or No 
Description of skills and experience:
Name of project(s) and year(s) experience was obtained:

Must be familiar with NIST 800-53 current version

Does resource have this required skill: Yes  or No  Description of skills and experience:

CISSP Certification desired

Name of project(s) and year(s) experience was obtained: List degree and the conferring institution beyond high school if applicable;

List client references for work performed to meet the requirements stated above, and all projects the proposed resource has worked on in the last three (3) years. A minimum of three (3) references are required. By submission of this information, the contractor and identified key person authorize the State of Michigan to contact references and previous employers provided to verify the accuracy of the information. Provide the identified information for each:

Start Date: Client/Project: Employer: Title/Percentage of time: Description:

End Date:

Start Date: Client/Project: Employer: Title/Percentage of time: Description:

End Date:

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Start Date: Client/Project: Employer: Title/Percentage of time: Description:

End Date:

EDUCATION
Degree (i.e. PhD, Master’s, Bachelors) Program

Education Major(s) area of study:

Year Completed: Minor area of study:

University

Degree (i.e. PhD, Master’s, Bachelors) Program

Additional Education Major(s) area of study:

Year Completed: Minor area of study:

University

TRAINING – Provide any relevant technical or professional training related to the role resource will be providing on this project.

Course Name Topic Date taken

Technical or Professional Training (include credit hours if applicable)

Name Topic/Description Date completed

Certifications/Affiliations

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Other Key Personal Proposed Resources

Proposed Resource Name:
Proposed Classification:
Key Personnel:
If resource is associated with a subcontractor provide name of company:
Percentage of time resource will be allocated to project:

Yes or No 

Contractor: List the skills and experience that qualify the individual for the duties and responsibilities on this project for the proposed role. Provide the name of the project(s) and the year(s) the experience was obtained.

Description of Skills

Experience

Description of skills and experience:

Name of project(s) and year(s) experience was obtained:

Description of skills and experience: Degree

Name of project(s) and year(s) experience was obtained:
List degree and the conferring institution beyond high school if applicable;

List client references for work performed to meet the stated above, and all projects the proposed resource has worked on in the last three (3) years. A minimum of three (3) references are required. By submission of this information, the contractor and identified key person authorize the State of Michigan to contact references and previous employers provided to verify the accuracy of the information. Provide the identified information for each:

Start Date: Client/Project: Employer: Title/Percentage of time: Description:

End Date:

Start Date: Client/Project: Employer: Title/Percentage of time: Description:

End Date:

Start Date: Client/Project: Employer: Title/Percentage of time: Description:

End Date:

Case 2:20-cv-11023-GAD-MJH ECF No. 36-2 filed 06/29/20 PageID.479 Page 35 of 104

EDUCATION
Degree (i.e. PhD, Master’s, Bachelors) Program

Education Major(s) area of study:

Year Completed: Minor area of study:

University

Degree (i.e. PhD, Master’s, Bachelors) Program

Additional Education Major(s) area of study:

Year Completed: Minor area of study:

University

TRAINING – Provide any relevant technical or professional training related to the role resource will be providing on this project.

Course Name Topic Date taken

Technical or Professional Training (include credit hours if applicable)

Name Topic/Description Date completed

Certifications/Affiliations

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STATE OF MICHIGAN
Request For Proposal No. 200000001856 Accessible Absentee Ballots

EXHIBIT B

Vendor Questions Worksheet

Bidders must provide a detailed response to each question. Attach any supplemental information and

appropriately reference within your response.

Information Sought

Bidder Response

Contact Information

Bidder’s sole contact person during the RFP

process. Include name, title, address, email, and

phone number.

Person authorized to receive and sign a resulting

contract. Include name, title, address, email, and

phone number.

Company Background Information

Legal business name and address. Include

business entity designation, e.g., sole proprietor,

Inc., LLC, or LLP.

What state was the company formed in?

Phone number

Website address

Number of years in business and number of

employees

Legal business name and address of parent

company, if any

Has there been a recent change in

organizational structure (e.g., management

team) or control (e.g., merger or acquisition) of

your company? If the answer is yes: (a) explain

why the change occurred and (b) how this

change has affected your company.

Discuss your company’s history. Has growth

been organic, through mergers and acquisitions,

or both?

Has Bidder (or any affiliates) ever been

debarred, suspended, or disqualified from

bidding or contracting with any entity, including

the State of Michigan? If yes, provide the date,

the entity, and details about the situation.

Has your company (or any affiliates) been a party

to litigation against the State of Michigan? If the

answer is yes, then state the date of initial filing,

case name and court number, and jurisdiction.

Within the last 5 years, has your company (or

any affiliates) defaulted on a contract or had a

contract terminated for cause? If yes, provide

the date, contracting entity, type of contract, and

details about the termination or default.

State your gross annual sales for the last 5

years.

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If receiving a contract under this RFP will increase your gross revenue by more than 25% from last year’s sales, explain how the company will scale-up to manage this increase. Describe partnerships and strategic relationships you think will bring significant value to the State. State the physical address of the place of business that would have primary responsibility for this account if Bidder is awarded a contract under this RFP. Qualified Disabled Veteran Under MCL 18.1261, a “qualified disabled veteran” means a business entity that is 51% or more owned by 1 or more veterans with a service-connected disability. A “serviceconnected disability” means a disability incurred or aggravated in the line of duty in the active military, naval, or air service as described in 38 USC 101(16). Are you a qualified disabled veteran? To demonstrate qualification as a qualified disabled veteran, you must provide: (a) Proof of service and conditions of discharge (DD214 or equivalent); (b) Proof of service-connected disability (DD214 if the disability was documented at discharge or Veterans Administration Rating Decision Letter or equivalent if the disability was documented after discharge); and (c) Legal documents setting forth the ownership of the business entity. In lieu of the documentation identified above, you may provide proof of certification by the National Veterans Business Development Council. Participation in RFP Development or Evaluation Did your company, or an employee, agent, or representative of your company, participate in developing any component of this RFP? If you are awarded a contract under this solicitation, in order to provide the goods or services required under a resulting contract, do you intend to partner or subcontract with a person or entity that assisted in the development of this solicitation? Will your company, or an employee, agent, or representative of your company, participate in the evaluation of the proposals received in response to this RFP? Experience Does your company have experience working with the State of Michigan? If so, please provide a list (including the contract number) of the contracts you hold or have held with the State for the last 10 years.

Enter YES or NO.
Enter the names of documents submitted with your proposal to demonstrate status as a qualified disabled veteran.
If you entered “YES”, you are not eligible for contract award or to work as a subcontractor for the awarded vendor. If you entered “YES,” you are not eligible for contract award. An awarded vendor may not partner or subcontract with anyone to provide goods and services required under a resulting contract if that subcontractor or partner assisted in the development of this solicitation. If you entered “YES”, you are not eligible for contract award or to work as a subcontractor for the awarded vendor.

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Describe at least 3 relevant experiences from the last 5 years supporting your ability to successfully manage a contract of similar size and scope for the work described in this RFP. Experience 1 Company name Contact name Contact role at time of project Contact phone Contact email City State Zip 1. Project name and description of the scope of the project 2. What role did your company play? 3. How is this project experience relevant to the subject of this RFP? Dollar value Start and end date (mm/yy – mm/yy) Status (completed, live, other – specify phase) Results obtained Experience 2 Company name Contact name Contact role at time of project Contact phone Contact email City State Zip 1. Project name and description of the scope of the project 2. What role did your company play? 3. How is this project experience relevant to the subject of this RFP? Dollar value Start and end date (mm/yy – mm/yy) Status (completed, live, other – specify phase) Results obtained Experience 3 Company name Contact name Contact role at time of project Contact phone Contact email City State Zip 1. Project name and description of the scope of the project 2. What role did your company play? 3. How is this project experience relevant to the subject of this RFP? Dollar value

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Start and end date (mm/yy – mm/yy) Status (completed, live, other – specify phase) Results obtained Contract Terms Bidder must affirm agreement with the attached Contract Terms. If not in agreement, written exceptions in accordance with the Evaluation Process section of the Proposal Instructions must be provided with Bidder’s proposal. Michigan Economic Impact Number of employees currently employed at locations within the State of Michigan Number of additional employees to be employed at locations within the State of Michigan if awarded this Contract (if any) Minimum wage paid to employees employed at locations within the State of Michigan Average wage paid to employees employed at locations within the State of Michigan Percentage of employees employed at locations within the State of Michigan that are covered by employer-provided health insurance Other Abusive Labor Practices. The Contractor certifies that it will not furnish any Deliverable that was produced fully or partially by forced labor, forced or indentured child labor, or indentured servitude. Certification of Michigan Business- Public Act 431 of 1984, Sec. 268. I certify that the company has, pursuant to the provisions of Sec 268 of Public Act 431 of 1984, filed a Michigan Business Tax Corporate Income Tax Return. I certify that the company has, pursuant to the provisions of Sec 268 of Public Act 431 of 1984, filed a Michigan Income Tax return showing income generated in, or attributed to the State of Michigan. I certify that the company has, pursuant to the provisions of Sec 268 of Public Act 431 of 1984, withheld Michigan Income Tax from compensation paid to the company’s owners and remitted the tax to the Michigan Department of Treasury. Iran Linked Business- Public Act 517 of 2012. I certify that the Company is not an Iran-Linked business as defined by Public Act 517 of 2012. Clean Corporate Citizen. I certify that the Company is a Clean Corporate Citizen as defined by the Environmental Protection Act, 1994 PA 451. Convict Labor. The Contractor certifies that if using convict labor, it is complying with all applicable state and federal laws and policies. SOM Debt/Tax Payment. All SOM tax/debts. I certify that all applicable State of Michigan taxes

Enter YES or NO. Enter YES or NO.
Enter YES or NO. Enter YES or NO. Enter YES or NO. Enter YES or NO.

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are paid, and that no outstanding debt is owed to the State of Michigan. Authorization to Verify Information provided by Vendor. I authorize the State to verify that all information provided in this registration, in bidding and contracting documents, and any attachments or supplement documents and processes are accurate.

Enter YES or NO.

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STATE OF MICHIGAN
Request For Proposal No. 200000001856 Accessible Absentee Ballots
EXHIBIT C PRICING
1. Price proposals must include all costs for the implementation, licensing, and ongoing support of the Solution. Contractor should generate a pricing schedule as follows: • Implementation Services. Bidder shall include all costs associated with implementation services (e.g. configuration, migration, integration, testing and training). All costs shall be on a fixed-fee basis and must correspond to the relevant milestones set forth in the Milestones and Deliverables Section of Exhibit A - Project Scope.
• Licensing. If Bidder is proposing a perpetual license, Bidder shall include the one-time cost of the license, which shall cover all intended users of the solution (please refer to the estimated number and type of users identified in the User Type and Capacity Section of Exhibit A - Project Scope). If Bidder is proposing a term-based license, Bidder shall include annual costs for subscription-based licenses for 5 years with 5, 1-year options, which shall cover all intended users of the Solution (refer to the estimated number and type of users identified in the User Type and Capacity Section of Exhibit A - Project Scope). While the State is looking for precise pricing based on the estimated number of users, Bidder is encouraged to also provide a separate, tiered pricing model to afford the State discounted pricing based on potential increases in volume in the future. If Bidder offers an enterprise pricing model (e.g. unlimited number of users), it is encouraged to separately provide that pricing option as well.
• Support and Maintenance. Bidder shall include annual costs for five (5) years for ongoing support and maintenance of the solution to meet the requirements of Schedule C to the Contract Terms - Maintenance and Support Schedule and/or Schedule D to the Contract Terms- Service Level Agreement, as applicable. If Bidder is proposing a term-based license, annual subscription-based license costs should include standard support and maintenance for the Solution to meet the requirements of Schedule D to the Contract Terms- Service Level Agreement, and therefore maintenance and support should not be charged separately.
2. Price proposals must include a fixed-price hourly-rate rate card for ancillary professional services (e.g. future enhancement configuration services) broken down by role (e.g. solution design architect). If Bidder differentiates between on-site and remote services, provide pricing for both.
3. Price proposals must include fixed-price fees for ongoing training beyond the initial Implementation Services. If Bidder offers remote web-based and onsite training, provide pricing for both.
4. Price proposals may include pricing for any other additional products or services offered by Bidder that relates to this RFP.

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STATE OF MICHIGAN
CONTRACT TERMS AND CONDITIONS
These Terms and Conditions, together with all Schedules (including the Statement(s) of Work), Exhibits and any other applicable attachments or addenda expressly incorporated herein (collectively, the “Contract”) are agreed to between the State of Michigan (the “State”) and [INSERT COMPANY NAME] (“Contractor”), a [INSERT STATE & ENTITY STATUS, E.G., A MICHIGAN CORPORATION OR A TEXAS LIMITED LIABILITY COMPANY]. This Contract is effective on [MONTH, DAY, YEAR] (“Effective Date”), and unless earlier terminated, will expire on [MONTH, DAY, YEAR] (the “Term”). This Contract may be renewed for up to five additional one-year periods. Renewal must be by written notice from the State and will automatically extend the Term of this Contract. 1. Definitions. For the purposes of this Contract, the following terms have the following meanings:
“Acceptance” has the meaning set forth in Section 11.5.
“Acceptance Tests” means such tests as may be conducted in accordance with Section 11 and the Statement of Work to determine whether the Software meets the requirements of this Contract and the Documentation.
“Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. For purposes of this definition, the term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect ownership of more than fifty percent (50%) of the voting securities of a Person.
“Allegedly Infringing Materials” has the meaning set forth in Section 26.3(b)(ii).
“API” means all Application Programming Interfaces and associated API Documentation provided by Contractor, and as updated from time to time, to allow the Software to integrate with various State and Third Party Software.
“Approved Open-Source Components” means Open-Source Components that may be included in or used in connection with the Software and are specifically identified in an exhibit to the Statement of Work, and approved by the State.
“Authorized Users” means all Persons authorized by the State to access and use the Software under this Contract, subject to the maximum number of users specified in the applicable Statement of Work.

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“Business Day” means a day other than a Saturday, Sunday or other day on which the State is authorized or required by Law to be closed for business.
“Business Owner” is the individual appointed by the agency to (a) act as the agency’s representative in all matters relating to the Contract, and (b) sign off on notice of Acceptance for the Software. The Business Owner will be identified in the Statement of Work.
“Business Requirements Specification” means the initial specification setting forth the State’s business requirements regarding the features and functionality of the Software, as set forth in the Statement of Work.
“Change” has the meaning set forth in Section 2.2. “Change Notice” has the meaning set forth in Section 2.2(b). “Change Proposal” has the meaning set forth in Section 2.2(a). “Change Request” has the meaning set forth in Section 2.2. “Confidential Information” has the meaning set forth in Section 19.1.
“Configuration” means State-specific changes made to the Software without Source Code or structural data model changes occurring.
“Contract” has the meaning set forth in the preamble.
“Contract Administrator” is the individual appointed by each party to (a) administer the terms of this Contract, and (b) approve any Change Notices under this Contract. Each party’s Contract Administrator will be identified in the Statement of Work.
“Contract Owner” is the DTMB Business Relationship Manager supporting the Business Owner’s agency. The Contract Owner will be identified in the Statement of Work.
“Contractor” has the meaning set forth in the preamble.
“Contractor’s Bid Response” means the Contractor’s proposal submitted in response to the RFP.
“Contractor Personnel” means all employees and agents of Contractor, all Subcontractors and all employees and agents of any Subcontractor, involved in the performance of Services hereunder.
“Deliverables” means the Software, and all other documents and other materials that Contractor is required to or otherwise does provide to the State under this Contract and otherwise in connection with any Services, including all items specifically identified as Deliverables in the Statement of Work.
“Dispute Resolution Procedure” has the meaning set forth in Section 31.1.
“Documentation” means all user manuals, operating manuals, technical manuals and any other instructions, specifications, documents or materials, in any form or media, that describe the functionality,

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installation, testing, operation, use, maintenance, support, technical or other components, features or requirements of the Software.
“DTMB” means the Michigan Department of Technology, Management and Budget.
“Effective Date” has the meaning set forth in the preamble.
“Externally Hosted” means an Operating Environment provided by Contractor or one or more of its Subcontractors.
“Fees” has the meaning set forth in Section 15.
“Financial Audit Period” has the meaning set forth in Section 29.1.
“Harmful Code” means any software, hardware or other technologies, devices or means, the purpose or effect of which is to: (a) permit unauthorized access to, or to destroy, disrupt, disable, modify, distort, or otherwise harm or impede in any manner, any (i) computer, software, firmware, data, hardware, system or network, or (ii) any application or function of any of the foregoing or the integrity, use or operation of any data Processed thereby; or (b) prevent the State or any Authorized User from accessing or using the Services or Software as intended by this Contract, and includes any virus, bug, trojan horse, worm, backdoor or other malicious computer code and any time bomb or drop dead device.
“HIPAA” has the meaning set forth in Section 19.1.
“Implementation Fees” means the fees set forth on the Pricing Schedule for Contractor’s provision of implementation services as provided in this Contract.
“Implementation Plan” means the schedule included in the Statement of Work setting forth the sequence of events for the performance of Services under the Statement of Work, including the Milestones and Milestone Dates.
“Integration Testing” has the meaning set forth in Section 11.1(c).
“Intellectual Property Rights” means all or any of the following: (a) patents, patent disclosures, and inventions (whether patentable or not); (b) trademarks, service marks, trade dress, trade names, logos, corporate names, and domain names, together with all of the associated goodwill; (c) copyrights and copyrightable works (including computer programs), mask works and rights in data and databases; (d) trade secrets, know-how and other confidential information; and (e) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection provided by applicable Law in any jurisdiction throughout the world.
“Key Personnel” means any Contractor Personnel identified as key personnel in the Statement of Work.

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“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement or rule of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.
“License Fee” means the fees set forth on the Pricing Schedule for the rights and license to use Contractor’s Software as provided in this Contract.
“Loss or Losses” means all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys' fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
“Maintenance and Support Schedule” means, if applicable, the schedule attached as Schedule C, setting forth the Support Services Contractor will provide to the State, and the parties' additional rights and obligations with respect thereto.
“Maintenance Release” means any update, upgrade, release or other adaptation or modification of the Software, including any updated Documentation, that Contractor may generally provide to its licensees from time to time during the Term, which may contain, among other things, error corrections, enhancements, improvements or other changes to the user interface, functionality, compatibility, capabilities, performance, efficiency or quality of the Software.
“Milestone” means an event or task described in the Implementation Plan under the Statement of Work that must be completed by the corresponding Milestone Date.
“Milestone Date” means the date by which a particular Milestone must be completed as set forth in the Implementation Plan under the Statement of Work.
“New Version” means any new version of the Software that the Contractor may from time to time introduce and market generally as a distinct licensed product, as may be indicated by Contractor's designation of a new version number.
“Nonconformity” or “Nonconformities” means any failure or failures of the Software to conform to the requirements of this Contract, including any applicable Documentation.
“Open-Source Components” means any software component that is subject to any open-source copyright license agreement, including any GNU General Public License or GNU Library or Lesser Public License, or other obligation, restriction or license agreement that substantially conforms to the Open Source Definition as prescribed by the Open Source Initiative or otherwise may require disclosure or licensing to any third party of any source code with which such software component is used or compiled.
“Open-Source License” has the meaning set forth in Section 4.
“Operating Environment” means, collectively, the platform, environment and conditions on, in or under which the Software is intended to be installed and operate, as set forth in the Statement of Work,

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including such structural, functional and other features, conditions and components as hardware, operating software and system architecture and configuration.
“PAT” means a document or product accessibility template, including any Information Technology Industry Council Voluntary Product Accessibility Template or VPAT®, that specifies how information and software products, such as websites, applications, software and associated content, conform to WCAG 2.0 Level AA.
“Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association or other entity.
“Pricing” means any and all fees, rates and prices payable under this Contract, including pursuant to any Schedule or Exhibit hereto.
“Pricing Schedule” means the schedule attached as Schedule B, setting forth the License Fees, Implementation Fees, Support Services Fees, and any other fees, rates and prices payable under this Contract.
“Process” means to perform any operation or set of operations on any data, information, material, work, expression or other content, including to (a) collect, receive, input, upload, download, record, reproduce, store, organize, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate or make other improvements or derivative works, (b) process, retrieve, output, consult, use, disseminate, transmit, submit, post, transfer, disclose or otherwise provide or make available, or (c) block, erase or destroy. “Processing” and “Processed” have correlative meanings.
“Project Manager” is the individual appointed by each party to monitor and coordinate the day-to-day activities of this Contract. Each party’s Project Manager will be identified in the Statement of Work.
“Representatives” means a party's employees, officers, directors, partners, shareholders, agents, attorneys, successors and permitted assigns and, with respect to Contractor, Contractor’s Subcontractors.
“RFP” means the State’s request for proposal designed to solicit responses for Services under this Contract.
"RPO" or "Recovery Point Objective" means the maximum amount of potential data loss in the event of a disaster.
"RTO" or "Recovery Time Objective" means the period of time to fully restore the Hosted Services in the case of a disaster.
“Services” means any of the services Contractor is required to or otherwise does provide under this Contract, including but not limited to the Statement of Work, the Maintenance and Support Schedule (if applicable), or the Service Level Agreement (if applicable).

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“Service Level Agreement” means, if applicable, the service level agreement attached as Schedule D to this Contract, setting forth Contractor’s obligations with respect to the hosting, management and operation of the Software.
“Site” means the physical location designated by the State in, or in accordance with, this Contract or the Statement of Work for delivery and installation of the Software.
“Software” means Contractor’s software set forth in the Statement of Work, and any Maintenance Releases or New Versions provided to the State and any Configurations made by or for the State pursuant to this Contract, and all copies of the foregoing permitted under this Contract.
“Source Code” means the human readable source code of the Software to which it relates, in the programming language in which the Software was written, together with all related flow charts and technical documentation, including a description of the procedure for generating object code, all of a level sufficient to enable a programmer reasonably fluent in such programming language to understand, build, operate, support, maintain and develop modifications, upgrades, updates, adaptations, enhancements, new versions and other derivative works and improvements of, and to develop computer programs compatible with, the Software.
“Specifications” means, for the Software, the specifications collectively set forth in the Business Requirements Specification, Technical Specification, Documentation, or Contractor’s Bid Response, if any, for such Software, or elsewhere in the Statement of Work.
“State” means the State of Michigan.
“State Data” has the meaning set forth in Section 18.1.
“State Materials” means all materials and information, including documents, data, know-how, ideas, methodologies, specifications, software, content and technology, in any form or media, directly or indirectly provided or made available to Contractor by or on behalf of the State in connection with this Contract.
“State Resources” has the meaning set forth in Section 10.1(a).
“Statement of Work” means any statement of work entered into by the parties and attached to this Contract. The initial Statement of Work is attached as Schedule A.
“Stop Work Order” has the meaning set forth in Section 24.
“Subcontractor” has the meaning set forth in Section 9.4.
“Support Services” means the software maintenance and support services Contractor is required to or otherwise does provide to the State under the Maintenance and Support Schedule (if applicable) or the Service Level Agreement (if applicable).

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“Support Services Commencement Date” means, with respect to the Software, the date on which the Warranty Period for the Software expires or such other date as may be set forth in the Statement of Work.
“Support Services Fees” means the fees set forth on the Pricing Schedule for Contractor’s provision of Support Services as provided in this Contract.
“Technical Specification” means, with respect to any Software, the document setting forth the technical specifications for such Software and included in the Statement of Work.
“Term” has the meaning set forth in the preamble.
“Testing Period” has the meaning set forth in Section 11.1(b).
“Third Party” means any Person other than the State or Contractor.
“Transition Period” has the meaning set forth in Section 23.3
“Transition Responsibilities” has the meaning set forth in Section 23.3.
“Unauthorized Removal” has the meaning set forth in Section 9.3(b).
“Unauthorized Removal Credit” has the meaning set forth in Section 9.3(c).
“User Data” means all data, information and other content of any type and in any format, medium or form, whether audio, visual, digital, screen, GUI or other, that is input, uploaded to, placed into or collected, stored, processed, generated or output by any device, system or network by or on behalf of the State, including any and all works, inventions, data, analyses and other information and materials resulting from any use of the Software by or on behalf of the State under this Contract, except that User Data does not include the Software or data, information or content, including any GUI, audio, visual or digital or other display or output, that is generated automatically upon executing the Software without additional user input.
“Warranty Period” means the ninety (90) calendar-day period commencing on the date of the State's Acceptance of the Software.
“WCAG 2.0 Level AA” means level AA of the World Wide Web Consortium Web Content Accessibility Guidelines version 2.0.
“Work Product” means all State-specific deliverables that Contractor is required to, or otherwise does, provide to the State under this Contract including but not limited to computer scripts, macros, user interfaces, reports, project management documents, forms, templates, and other State-specific documents and related materials together with all ideas, concepts, processes, and methodologies developed in connection with this Contract whether or not embodied in this Contract. 2. Statements of Work. Contractor shall provide Services and Deliverables pursuant to Statements of Work entered into under this Contract. No Statement of Work shall be effective unless signed by each

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party’s Contract Administrator. The term of each Statement of Work shall commence on the parties' full execution of the Statement of Work and terminate when the parties have fully performed their obligations. The terms and conditions of this Contract will apply at all times to any Statements of Work entered into by the parties and attached as a schedule to this Contract. The State shall have the right to terminate such Statement of Work as set forth in Section 23. Contractor acknowledges that time is of the essence with respect to Contractor’s obligations under each Statement of Work and agrees that prompt and timely performance of all such obligations in accordance with this Contract and the Statements of Work (including the Implementation Plan and all Milestone Dates) is strictly required.
2.1 Statement of Work Requirements. Each Statement of Work should include the following:
(a) names and contact information for Contractor’s Contract Administrator, Project Manager and Key Personnel;
(b) names and contact information for the State’s Contract Administrator, Project Manager, Contract Owner, and Business Owner;
(c) a detailed description of the Services to be provided under this Contract, including any training obligations of Contractor;
(d) a detailed description of the Software to be provided under this Contract, including the:
(i) version and release number of the Software;
(ii) Business Requirements Specification;
(iii) Technical Specification; and
(iv) a description of the Documentation to be provided;
(e) an Implementation Plan, including all Milestones, the corresponding Milestone Dates and the parties’ respective responsibilities under the Implementation Plan;
(f) the due dates for payment of Fees and any invoicing requirements, including any Milestones on which any such Fees are conditioned, and such other information as the parties deem necessary;
(g) disclosure of all Open-Source Components (each identified on a separate exhibit to the Statement of Work), in each case accompanied by such related documents as may be required by this Contract;
(h) description of all liquidated damages associated with this Contract; and
(i) a detailed description of all State Resources required to complete the Implementation Plan.
2.2 Change Control Process. The State may at any time request in writing (each, a “Change Request”) changes to the Statement of Work, including changes to the Services and Implementation Plan (each, a “Change”). Upon the State’s submission of a Change Request, the parties will evaluate and implement all Changes in accordance with this Section 2.2.
(a) As soon as reasonably practicable, and in any case within twenty (20) Business Days following receipt of a Change Request, Contractor will provide the State with a written proposal for implementing the requested Change (“Change Proposal”), setting forth:

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(i) a written description of the proposed Changes to any Services or Deliverables;
(ii) an amended Implementation Plan reflecting: (A) the schedule for commencing and completing any additional or modified Services or Deliverables; and (B) the effect of such Changes, if any, on completing any other Services under the Statement of Work;
(iii) any additional State Resources Contractor deems necessary to carry out such Changes; and
(iv) any increase or decrease in Fees resulting from the proposed Changes, which increase or decrease will reflect only the increase or decrease in time and expenses Contractor requires to carry out the Change.
(b) Within thirty (30) Business Days following the State’s receipt of a Change Proposal, the State will by written notice to Contractor, approve, reject, or propose modifications to such Change Proposal. If the State proposes modifications, Contractor must modify and re-deliver the Change Proposal reflecting such modifications, or notify the State of any disagreement, in which event the parties will negotiate in good faith to resolve their disagreement. Upon the State’s approval of the Change Proposal or the parties’ agreement on all proposed modifications, as the case may be, the parties will execute a written agreement to the Change Proposal (“Change Notice”), which Change Notice will be signed by the State’s Contract Administrator and will constitute an amendment to the Statement of Work to which it relates; and
(c) If the parties fail to enter into a Change Notice within fifteen (15) Business Days following the State’s response to a Change Proposal, the State may, in its discretion:
(i) require Contractor to perform the Services under the Statement of Work without the Change;
(ii) require Contractor to continue to negotiate a Change Notice;
(iii) initiate a Dispute Resolution Procedure; or
(iv) notwithstanding any provision to the contrary in the Statement of Work, terminate this Contract under Section 23.
(d) No Change will be effective until the parties have executed a Change Notice. Except as the State may request in its Change Request or otherwise in writing, Contractor must continue to perform its obligations in accordance with the Statement of Work pending negotiation and execution of a Change Notice. Contractor will use its best efforts to limit any delays or Fee increases from any Change to those necessary to perform the Change in accordance with the applicable Change Notice. Each party is responsible for its own costs and expenses of preparing, evaluating, negotiating, and otherwise processing any Change Request, Change Proposal, and Change Notice.
(e) The performance of any functions, activities, tasks, obligations, roles and responsibilities comprising the Services as described in this Contract are considered part of the Services and, thus, will not be considered a Change. This includes the delivery of all Deliverables in accordance with their respective Specifications, and the diagnosis and correction of Non-Conformities discovered in Deliverables prior to their Acceptance by the State or, subsequent to their Acceptance by the State, as necessary for Contractor to fulfill its associated warranty requirements and its Support Services under this Contract.

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(f) Contractor may, on its own initiative and at its own expense, prepare and submit its own Change Request to the State. However, the State will be under no obligation to approve or otherwise respond to a Change Request initiated by Contractor.
3. Software License.
3.1 Perpetual License. If Contractor is providing the State with a license to use its Software indefinitely, then Contractor hereby grants to the State and its Authorized Users a non-exclusive, royaltyfree, perpetual, irrevocable right and license to use the Software and Documentation in accordance with the terms and conditions of this Contract , provided that:
(a) The State is prohibited from reverse engineering or decompiling the Software, making derivative works, modifying, adapting or copying the Software except as is expressly permitted by this Contract or required to be permitted by law;
(b) The State is authorized to make copies of the Software for backup, disaster recovery, and archival purposes;
(c) The State is authorized to make copies of the Software to establish a test environment to conduct Acceptance Testing;
(d) Title to and ownership of the Software shall at all times remain with Contractor and/or it’s licensors, as applicable; and
(e) Except as expressly agreed in writing, the State is not permitted to sub-license the use of the Software or any accompanying Documentation.
3.2 Subscription License. If the Operating Environment for the Software is Externally Hosted and Contractor is providing the State access to use its Software during the Term of the Contract only, then:
(a) Contractor hereby grants to the State, exercisable by and through its Authorized Users, a nonexclusive, royalty-free, irrevocable right and license during the Term and such additional periods, if any, as Contractor is required to perform Services under this Contract or any Statement of Work, to:
(i) access and use the Software, including in operation with other software, hardware, systems, networks and services, for the State’s business purposes, including for Processing State Data;
(ii) generate, print, copy, upload, download, store and otherwise Process all GUI, audio, visual, digital and other output, displays and other content as may result from any access to or use of the Software;
(iii) prepare, reproduce, print, download and use a reasonable number of copies of the Specifications and Documentation for any use of the Software under this Contract; and
(iv) access and use the Software for all such non-production uses and applications as may be necessary or useful for the effective use of the Software hereunder, including for purposes of analysis, development, configuration, integration, testing, training, maintenance, support and repair, which access and use will be without charge and not included for any purpose in any calculation of the State’s or its Authorized Users’

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use of the Software, including for purposes of assessing any Fees or other consideration payable to Contractor or determining any excess use of the Software as described in Section 3.2(c) below.
(b) License Restrictions. The State will not: (a) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make the Software available to any third party, except as expressly permitted by this Contract or in any Statement of Work; or (b) use or authorize the use of the Software or Documentation in any manner or for any purpose that is unlawful under applicable Law.
(c) Use. The State will pay Contractor the corresponding Fees set forth in a Statement of Work or Pricing Schedule for all Authorized Users access and use of the Software. Such Fees will be Contractor’s sole and exclusive remedy for use of the Software, including any excess use.
4. Open-Source Licenses. Any use hereunder of Open-Source Components shall be governed by, and subject to, the terms and conditions of the applicable open-source license (“Open-Source License”). Contractor shall identify and describe in an exhibit to the Statement of Work each of the Approved OpenSource Components of the Software, and include an exhibit attaching all applicable Open-Source Software Licenses or identifying the URL where these licenses are publicly available.
5. Software Implementation.
5.1 Implementation. Contractor will deliver, install, configure, integrate, and otherwise provide and make fully operational the Software on or prior to the applicable Milestone Date in accordance with the criteria set forth in the Statement of Work.
5.2 Site Preparation. Unless otherwise set forth in the Statement of Work, Contractor is responsible for ensuring the relevant Operating Environment is set up and in working order to allow Contractor to deliver and install the Software on or prior to the applicable Milestone Date. Contractor will provide the State with such notice as is specified in the Statement of Work, prior to delivery of the Software to give the State sufficient time to prepare for Contractor’s delivery and installation of the Software. If the State is responsible for Site preparation, Contractor will provide such assistance as the State requests to complete such preparation on a timely basis.
6. Hosting. If the Operating Environment for the Software is Externally Hosted, Contractor will maintain the Availability Requirement and the Support Service Level Requirement set forth in the Service Level Agreement attached as Schedule D to this Contract.
7. Support Services
7.1 Support Services for On-Premise Software. If the Operating Environment for the Software is hosted by the State, Contractor shall provide the State with the Support Services described in the Maintenance and Support Schedule attached as Schedule C to this Contract. Such Support Services shall be provided:
(a) Free of charge during the Warranty Period, it being acknowledged and agreed that the License Fee includes full consideration for such Services during such period.
(b) Thereafter, for so long as the State elects to receive Support Services for the Software, in consideration of the State's payment of Support Services Fees in accordance with this Contract.
7.2 Support Services for Externally Hosted Software. If the Operating Environment for the Software is Externally Hosted, Contractor shall provide the State with the Support Services described in the

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Service Level Agreement attached as Schedule D to this Contract. Such Support Services shall be provided:
(a) Free of charge during the Warranty Period, it being acknowledged and agreed that the License Fee includes full consideration for such Services during such period.
(b) Thereafter, for so long as the State elects to receive Support Services for the Software, in consideration of the State's payment of Support Services Fees in accordance with this Contract.
8. Data Privacy and Information Security.
8.1 Undertaking by Contractor. Without limiting Contractor’s obligation of confidentiality as further described, Contractor is responsible for establishing and maintaining a data privacy and information security program, including physical, technical, administrative, and organizational safeguards, that is designed to: (a) ensure the security and confidentiality of the State Data; (b) protect against any anticipated threats or hazards to the security or integrity of the State Data; (c) protect against unauthorized disclosure, access to, or use of the State Data; (d) ensure the proper disposal of State Data; and (e) ensure that all Contractor Representatives comply with all of the foregoing. In no case will the safeguards of Contractor’s data privacy and information security program be less stringent than the safeguards used by the State, and Contractor must at all times comply with all applicable State IT policies and standards, of which the publicly available ones are at http://www.michigan.gov/dtmb/0,4568,7-15056355_56579_56755---,00.html.
8.2 To the extent that Contractor has access to the State’s computer system, Contractor must comply with the State’s Acceptable Use Policy, see https://www.michigan.gov/documents/dtmb/1340.00.01_Acceptable_Use_of_Information_Technology_St andard_458958_7.pdf. All Contractor Personnel will be required, in writing, to agree to the State’s Acceptable Use Policy before accessing the State’s system. The State reserves the right to terminate Contractor’s access or specific Contractor Personnel’s access to the State’s system if the State, in its sole discretion, determines that a violation has occurred.
8.3 Right of Audit by the State. Without limiting any other audit rights of the State, the State has the right to review Contractor’s data privacy and information security program prior to the commencement of Services and from time to time during the term of this Contract. During the providing of Services, on an ongoing basis from time to time and without notice, the State, at its own expense, is entitled to perform, or to have performed, an on-site audit of Contractor’s data privacy and information security program. In lieu of an on-site audit, upon request by the State, Contractor agrees to complete, within forty-five (45) calendar days of receipt, an audit questionnaire provided by the State regarding Contractor’s data privacy and information security program.
8.4 Audit Findings. With respect to State Data, Contractor must implement any required safeguards as identified by the State or by any audit of Contractor’s data privacy and information security program.
8.5 State’s Right to Termination for Deficiencies. The State reserves the right, at its sole election, to immediately terminate this Contract or the Statement of Work without limitation and without liability if the State determines that Contractor fails or has failed to meet its obligations under this Section 8.
8.6 Security Requirements. Contractor shall comply with the security requirements set forth in Schedule F to this Contract.

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9. Performance of Services. Contractor will provide all Services and Deliverables in a timely, professional and workmanlike manner and in accordance with the terms, conditions, and Specifications set forth in this Contract and the Statement of Work.
9.1 Contractor Personnel.
(a) Contractor is solely responsible for all Contractor Personnel and for the payment of their compensation, including, if applicable, withholding of income taxes, and the payment and withholding of social security and other payroll taxes, unemployment insurance, workers’ compensation insurance payments and disability benefits.
(b) Prior to any Contractor Personnel performing any Services, Contractor will:
(i) ensure that such Contractor Personnel have the legal right to work in the United States;
(ii) upon request, require such Contractor Personnel to execute written agreements, in form and substance acceptable to the State, that bind such Contractor Personnel to confidentiality provisions that are at least as protective of the State’s information (including all Confidential Information) as those contained in this Contract; and
(iii) upon request, or as otherwise specified in a Statement of Work, perform background checks on all Contractor Personnel prior to their assignment. The scope is at the discretion of the State and documentation must be provided as requested. Contractor is responsible for all costs associated with the requested background checks. The State, in its sole discretion, may also perform background checks on Contractor Personnel. Pursuant to Michigan law, all agencies subject to IRS Pub. 1075 are required to ask the Michigan State Police to perform fingerprint background checks on all employees, including Contractor and Subcontractor employees, who may have access to any database of information maintained by the federal government that contains confidential or personal information, including, but not limited to, federal tax information. Further, pursuant to Michigan law, any agency described above is prohibited from providing Contractors or Subcontractors with the result of such background check. For more information, please see Michigan Public Act 427 of 2018.
(c) Contractor and all Contractor Personnel will comply with all rules, regulations, and policies of the State that are communicated to Contractor in writing, including security procedures concerning systems and data and remote access, building security procedures, including the restriction of access by the State to certain areas of its premises or systems, and general health and safety practices and procedures.
(d) The State reserves the right to require the removal of any Contractor Personnel found, in the judgment of the State, to be unacceptable. The State’s request must be written with reasonable detail outlining the reasons for the removal request. Replacement personnel for the removed person must be fully qualified for the position. If the State exercises this right, and Contractor cannot immediately replace the removed personnel, the State agrees to negotiate an equitable adjustment in schedule or other terms that may be affected by the State’s required removal.
9.2 Contractor’s Project Manager. Throughout the Term of this Contract, Contractor must maintain a Contractor employee acceptable to the State to serve as Contractor’s Project Manager, who will be

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considered Key Personnel of Contractor. Contractor’s Project Manager will be identified in the Statement of Work.
(a) Contractor’s Project Manager must:
(i) have the requisite authority, and necessary skill, experience, and qualifications, to perform in such capacity;
(ii) be responsible for overall management and supervision of Contractor’s performance under this Contract; and
(iii) be the State’s primary point of contact for communications with respect to this Contract, including with respect to giving and receiving all day-to-day approvals and consents.
(b) Contractor’s Project Manager must attend all regularly scheduled meetings as set forth in the Implementation Plan, and will otherwise be available as set forth in the Statement of Work.
(c) Contractor will maintain the same Project Manager throughout the Term of this Contract, unless:
(i) the State requests in writing the removal of Contractor’s Project Manager;
(ii) the State consents in writing to any removal requested by Contractor in writing;
(iii) Contractor’s Project Manager ceases to be employed by Contractor, whether by resignation, involuntary termination or otherwise.
(d) Contractor will promptly replace its Project Manager on the occurrence of any event set forth in Section 9.2(c). Such replacement will be subject to the State's prior written approval.
9.3 Contractor’s Key Personnel.
(a) The State has the right to recommend and approve in writing the initial assignment, as well as any proposed reassignment or replacement, of any Key Personnel. Before assigning an individual to any Key Personnel position, Contractor will notify the State of the proposed assignment, introduce the individual to the State’s Project Manager, and provide the State with a resume and any other information about the individual reasonably requested by the State. The State reserves the right to interview the individual before granting written approval. In the event the State finds a proposed individual unacceptable, the State will provide a written explanation including reasonable detail outlining the reasons for the rejection.
(b) Contractor will not remove any Key Personnel from their assigned roles on this Contract without the prior written consent of the State. The Contractor’s removal of Key Personnel without the prior written consent of the State is an unauthorized removal (“Unauthorized Removal”). An Unauthorized Removal does not include replacing Key Personnel for reasons beyond the reasonable control of Contractor, including illness, disability, leave of absence, personal emergency circumstances, resignation, or for cause termination of the Key Personnel’s employment. Any Unauthorized Removal may be considered by the State to be a material breach of this Contract, in respect of which the State may elect to terminate this Contract for cause under Section 23.1.

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(c) It is further acknowledged that an Unauthorized Removal will interfere with the timely and proper completion of this Contract, to the loss and damage of the State, and that it would be impracticable and extremely difficult to determine and remedy the actual damage sustained by the State as a result of any Unauthorized Removal. Therefore, Contractor and the State agree that in the case of any Unauthorized Removal in respect of which the State does not elect to exercise its rights under Section 23.1, Contractor will issue to the State an amount equal to $25,000 per individual (each, an “Unauthorized Removal Credit”).
(d) Contractor acknowledges and agrees that each of the Unauthorized Removal Credits assessed under Subsection (c) above: (i) is a reasonable estimate of and compensation for the anticipated or actual harm to the State that may arise from the Unauthorized Removal, which would be impossible or very difficult to accurately estimate; and (ii) may, at the State’s option, be credited or set off against any Fees or other charges payable to Contractor under this Contract.
9.4 Subcontractors. Contractor will not, without the prior written approval of the State, which consent may be given or withheld in the State’s sole discretion, engage any Third Party to perform Services. The State’s approval of any such Third Party (each approved Third Party, which also includes any Contractor subcontractor and any subcontractor of a Contractor subcontractor, a “Subcontractor”) does not relieve Contractor of its representations, warranties or obligations under this Contract. Without limiting the foregoing, Contractor will:
(a) be responsible and liable for the acts and omissions of each such Subcontractor (including such Subcontractor's employees who, to the extent providing Services or Deliverables, shall be deemed Contractor Personnel) to the same extent as if such acts or omissions were by Contractor or its employees;
(b) name the State a third party beneficiary under Contractor’s Contract with each Subcontractor with respect to the Services;
(c) be responsible for all fees and expenses payable to, by or on behalf of each Subcontractor in connection with this Contract, including, if applicable, withholding of income taxes, and the payment and withholding of social security and other payroll taxes, unemployment insurance, workers' compensation insurance payments and disability benefits;
(d) notify the State of the location of the Subcontractor and indicate if it is located within the continental United States; and
(e) prior to the provision of Services by any Subcontractor, Contractor must obtain from each such proposed Subcontractor the identity of such Subcontractor and the location of all its data centers, if any, that will be used in Processing any State Data, which information Contractor shall promptly disclose to the State in writing.
10. State Obligations.
10.1 State Resources and Access. The State is responsible for:
(a) providing the State Materials and such other resources as may be specified in the Statement of Work (collectively, “State Resources”); and

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(b) if the Software is hosted on State systems, providing Contractor Personnel with such access to the Site(s) and Operating Environment as is necessary for Contractor to perform its obligations on a timely basis as set forth in the Statement of Work.
11. Acceptance Testing.
11.1 Acceptance Testing.
(a) Unless otherwise specified in the Statement of Work, upon installation of the Software, Acceptance Tests will be conducted as set forth in this Section 11 to ensure the Software conforms to the requirements of this Contract, including the applicable Specifications and Documentation.
(b) All Acceptance Tests will take place at the designated Site(s) in the Operating Environment described in the Statement of Work, commence on the Business Day following installation of the Software and be conducted diligently for up to thirty (30) Business Days, or such other period as may be set forth in the Statement of Work (the “Testing Period”). Acceptance Tests will be conducted by the party responsible as set forth in the Statement of Work or, if the Statement of Work does not specify, the State, provided that:
(i) for Acceptance Tests conducted by the State, if requested by the State, Contractor will make suitable Contractor Personnel available to observe or participate in such Acceptance Tests; and
(ii) for Acceptance Tests conducted by Contractor, the State has the right to observe or participate in all or any part of such Acceptance Tests.
Contractor is solely responsible for all costs and expenses related to Contractor’s performance of, participation in, and observation of Acceptance Testing.
(c) Upon delivery and installation of any API, Configuration or customization to the Software under the Statement of Work, additional Acceptance Tests will be performed on the modified Software as a whole to ensure full operability, integration, and compatibility among all elements of the Software (“Integration Testing”). Integration Testing is subject to all procedural and other terms and conditions set forth in this Section 11.
(d) The State may suspend Acceptance Tests and the corresponding Testing Period by written notice to Contractor if the State discovers a material Non-Conformity in the tested Software or part or feature of the Software. In such event, Contractor will immediately, and in any case within ten (10) Business Days, correct such Non-Conformity, whereupon the Acceptance Tests and Testing Period will resume for the balance of the Testing Period.
11.2 Notices of Completion, Non-Conformities, and Acceptance. Within fifteen (15) Business Days following the completion of any Acceptance Tests, including any Integration Testing, the party responsible for conducting the tests will prepare and provide to the other party written notice of the completion of the tests. Such notice must include a report describing in reasonable detail the tests conducted and the results of such tests, including any uncorrected Non-Conformity in the tested Software.
(a) If such notice is provided by either party and identifies any Non-Conformities, the parties’ rights, remedies, and obligations will be as set forth in Section 11.3 and Section 11.4.
(b) If such notice is provided by the State, is signed by the State’s Business Owner, and identifies no Non-Conformities, such notice constitutes the State's Acceptance of such Software.

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(c) If such notice is provided by Contractor and identifies no Non-Conformities, the State will have thirty (30) Business Days to use the Software in the Operating Environment and determine, in the exercise of its sole discretion, whether it is satisfied that the Software contains no Non-Conformities, on the completion of which the State will, as appropriate:
(i) notify Contractor in writing of Non-Conformities the State has observed in the Software and of the State’s non-acceptance thereof, whereupon the parties’ rights, remedies and obligations will be as set forth in Section 11.3 and Section 11.4; or
(ii) provide Contractor with a written notice of its Acceptance of such Software, which must be signed by the State’s Business Owner.
11.3 Failure of Acceptance Tests. If Acceptance Tests identify any Non-Conformities, Contractor, at Contractor’s sole cost and expense, will remedy all such Non-Conformities and re-deliver the Software, in accordance with the requirements set forth in the Statement of Work. Redelivery will occur as promptly as commercially possible and, in any case, within thirty (30) Business Days following, as applicable, Contractor’s:
(a) completion of such Acceptance Tests, in the case of Acceptance Tests conducted by Contractor; or
(b) receipt of the State’s notice under Section 11.2(c)(i), identifying any Non-Conformities.
11.4 Repeated Failure of Acceptance Tests. If Acceptance Tests identify any Non-Conformity in the Software after a second or subsequent delivery of the Software, or Contractor fails to re-deliver the Software on a timely basis, the State may, in its sole discretion, by written notice to Contractor:
(a) continue the process set forth in this Section 11;
(b) accept the Software as a nonconforming deliverable, in which case the Fees for such Software will be reduced equitably to reflect the value of the Software as received relative to the value of the Software had it conformed; or
(c) deem the failure to be a non-curable material breach of this Contract and the Statement of Work and terminate this Contract for cause in accordance with Section 23.1.
11.5 Acceptance. Acceptance (“Acceptance”) of the Software (subject, where applicable, to the State’s right to Integration Testing) will occur on the date that is the earliest of the State’s delivery of a notice accepting the Software under Section 11.2(b), or Section 11.2(c)(ii).
12. Training. Contractor shall provide, at no additional charge, training on all uses of the Software permitted hereunder in accordance with the times, locations and other terms set forth in the Statement of Work. Upon the State's request, Contractor shall timely provide training for additional Authorized Users or other additional training on all uses of the Software for which the State requests such training, at such reasonable times and locations and pursuant to such rates and other terms as are set forth in the Pricing Schedule.
13. Maintenance Releases; New Versions
13.1 Maintenance Releases. Provided that the State is current on its Support Services Fees, during the Term, Contractor shall provide the State, at no additional charge, with all Maintenance Releases, each of which will constitute Software and be subject to the terms and conditions of this Contract.

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13.2 New Versions. Provided that the State is current on its Support Services Fees, during the Term, Contractor shall provide the State, at no additional charge, with all New Versions, each of which will constitute Software and be subject to the terms and conditions of this Contract.
13.3 Installation. The State has no obligation to install or use any Maintenance Release or New Versions. If the State wishes to install any Maintenance Release or New Version, the State shall have the right to have such Maintenance Release or New Version installed, in the State's discretion, by Contractor or other authorized party as set forth in the Statement of Work. Contractor shall provide the State, at no additional charge, adequate Documentation for installation of the Maintenance Release or New Version, which has been developed and tested by Contractor and Acceptance Tested by the State. The State’s decision not to install or implement a Maintenance Release or New Version of the Software will not affect its right to receive Support Services throughout the Term of this Contract.
14. Source Code Escrow
14.1 Escrow Contract. The parties may enter into a separate intellectual property escrow agreement (“Escrow Agreement”). Such Escrow Agreement will govern all aspects of Source Code escrow and release. The cost of the escrow will be the sole responsibility of Contractor.
14.2 Deposit. Within thirty (30) business days of the Effective Date, Contractor will deposit with the Escrow Agent, pursuant to the procedures of the Escrow Agreement, the source code for the Software, as well as the Documentation and names and contact information for each author or other creator of the Software. Promptly after release of any update, upgrade, patch, bug fix, enhancement, new version, or other revision to the Software, Contractor will deposit updated source code, documentation, names, and contact information with the Escrow Agent. (“Deposit Material” refers to material required to be deposited pursuant to this Section 14.2. “Escrow Agent” refers to the party holding the Deposit Material in escrow.)
14.3 Verification. At State’s request and expense, the Escrow Agent may at any time verify the Deposit Material, including without limitation by compiling source code, comparing it to the Software, and reviewing the completeness and accuracy of any and all material. In the event that the Deposit Material does not conform to the requirements of Section 14.2 above:
(a) Contractor will promptly deposit conforming Deposit Material; and
(b) Contractor will pay the Escrow Agent for subsequent verification of the new Deposit Material. Any breach of the provisions of this Section 14.3 will constitute material breach of this Agreement, and no further payments will be due from the State until such breach is cured, in addition to other remedies the State may have.
14.4 Deposit Material License. Contractor hereby grants the State a license to use, reproduce, and create derivative works from the Deposit Material, provided the State may not distribute or sublicense the Deposit Material or make any use of it whatsoever except for such internal use as is necessary to maintain and support the Software. Copies of the Deposit Material created or transferred pursuant to this Agreement are licensed, not sold, and the State receives no title to or ownership of any copy or of the Deposit Material itself. The Deposit Material constitutes Confidential Information of Contractor pursuant to Section 19 (Non-disclosure of Confidential Information) of this Agreement (provided no provision of Section 19.5 calling for return of Confidential Information before termination of this Agreement will apply to the Deposit Material).
15. Fees

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15.1 Fees. In consideration of, and as payment in full for, Contractor’s provision of Services and the rights and license to use the Software and Documentation as provided in this Contract, the State shall pay to Contractor the fees, including the License Fees, Implementation Fees, and Support Services Fees, (the “Fees”) set forth on the Pricing Schedule, subject to and in accordance with the terms and conditions of this Contract, including the applicable timetable and other provisions of the Statement of Work and this Section 15.
15.2 Firm Pricing/Fee Changes. All Pricing set forth in this Contract is firm and will not be increased, except as otherwise expressly provided in this Section 15.2.
(a) The Fees will not be increased at any time except for the addition of additional licenses, the fees for which licenses will also remain firm in accordance with the Pricing set forth in the Pricing Schedule.
(b) Excluding federal government charges and terms. Contractor warrants and agrees that each of the Fees, economic or product terms or warranties granted pursuant to this Contract are comparable to or better than the equivalent fees, economic or product term or warranty being offered to any commercial or government customer of Contractor. If Contractor enters into any arrangements with another customer of Contractor to provide the products or services, available under this Contract, under more favorable prices, as the prices may be indicated on Contractor’s current U.S. and International price list or comparable document, then this Contract will be deemed amended as of the date of such other arrangements to incorporate those more favorable prices, and Contractor will immediately notify the State of such Fee and formally memorialize the new pricing in a Change Notice.
16. Invoices and Payment.
16.1 Invoices. Contractor will invoice the State for Fees in accordance with the requirements set forth in the Statement of Work, including any requirements that condition the rendering of invoices and the payment of Fees upon the successful completion of Milestones. Contractor must submit each invoice in both hard copy and electronic format, via such delivery means and to such address as are specified by the State in the Statement of Work. Each separate invoice must:
(a) clearly identify the Contract and purchase order number to which it relates, in such manner as is required by the State;
(b) list each Fee item separately;
(c) include sufficient detail for each line item to enable the State to satisfy its accounting and charge-back requirements;
(d) for Fees determined on a time and materials basis, report details regarding the number of hours performed during the billing period, the skill or labor category for such Contractor Personnel and the applicable hourly billing rates;
(e) include such other information as may be required by the State as set forth in the Statement of Work; and
(f) Itemized invoices must be submitted to DTMB-Accounts-Payable@michigan.gov.
16.2 Payment. Invoices are due and payable by the State, in accordance with the State’s standard payment procedures as specified in 1984 Public Act no. 279, MCL 17.51, et seq., within forty-five (45) calendar days after receipt, provided the State determines that the invoice was properly rendered. The

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State will only disburse payments under this Contract through Electronic Funds Transfer (EFT). Contractor must register with the State at http://www.michigan.gov/SIGMAVSS to receive electronic fund transfer payments. If Contractor does not register, the State is not liable for failure to provide payment
16.3 Taxes. The State is exempt from State sales tax for direct purchases and may be exempt from federal excise tax, if Services or Deliverables purchased under this Contract are for the State’s exclusive use. Notwithstanding the foregoing, all Fees are inclusive of taxes, and Contractor is responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by the State under this Contract.
16.4 Payment Disputes. The State may withhold from payment any and all payments and amounts the State disputes in good faith, pending resolution of such dispute, provided that the State:
(a) timely renders all payments and amounts that are not in dispute;
(b) notifies Contractor of the dispute prior to the due date for payment, specifying in such notice:
(i) the amount in dispute; and
(ii) the reason for the dispute set out in sufficient detail to facilitate investigation by Contractor and resolution by the parties;
(c) works with Contractor in good faith to resolve the dispute promptly; and
(d) promptly pays any amount determined to be payable by resolution of the dispute.
Contractor shall not withhold any Services or fail to perform any obligation hereunder by reason of the State's good faith withholding of any payment or amount in accordance with this Section 16.4 or any dispute arising therefrom.
16.5 Right of Setoff. Without prejudice to any other right or remedy it may have, the State reserves the right to set off at any time any amount owing to it by Contractor against any amount payable by the State to Contractor under this Contract.
17. Intellectual Property Rights
17.1 Ownership Rights in Software
(a) Subject to the rights and licenses granted by Contractor in this Contract and the provisions of Section 17.1(b):
(i) Contractor reserves and retains its entire right, title and interest in and to all Intellectual Property Rights arising out of or relating to the Software; and
(ii) none of the State or Authorized Users acquire any ownership of Intellectual Property Rights in or to the Software or Documentation as a result of this Contract.
(b) As between the State, on the one hand, and Contractor, on the other hand, the State has, reserves and retains, sole and exclusive ownership of all right, title and interest in and to User Data, including all Intellectual Property Rights arising therefrom or relating thereto.

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17.2 Rights in Open-Source Components. Ownership of all Intellectual Property Rights in OpenSource Components shall remain with the respective owners thereof, subject to the State's rights under the applicable Open-Source Licenses.
17.3 The State is and will be the sole and exclusive owner of all right, title, and interest in and to all API and Work Product developed exclusively for the State under this Contract, including all Intellectual Property Rights. In furtherance of the foregoing:
(a) Contractor will create all API and Work Product as work made for hire as defined in Section 101 of the Copyright Act of 1976; and
(b) to the extent any API, Work Product, or Intellectual Property Rights do not qualify as, or otherwise fails to be, work made for hire, Contractor hereby:
(i) assigns, transfers, and otherwise conveys to the State, irrevocably and in perpetuity, throughout the universe, all right, title, and interest in and to such API or Work Product, including all Intellectual Property Rights; and
(ii) irrevocably waives any and all claims Contractor may now or hereafter have in any jurisdiction to so-called “moral rights” or rights of droit moral with respect to the API or Work Product.
17.4 State License Grant. The State hereby grants to Contractor a limited, non-exclusive, nontransferable license:
(a) to use the State's (or individual agency’s, department’s or division’s) name, trademarks, service marks or logos, solely in accordance with the State’s specifications, and
(b) to display, reproduce, distribute and transmit in digital form the State’s (or individual agency’s, department’s or division’s) name, trademarks, service marks or logos in connection with promotion of the Services as communicated to Contractor by the State. Use of the State’s (or individual agency’s, department’s or division’s) name, trademarks, service marks or logos will be specified in the applicable Statement of Work.
18. State Data.
18.1 Ownership. The State’s data (“State Data”), which will be treated by Contractor as Confidential Information, includes: (a) User Data; and (b) any other data collected, used, processed, stored, or generated by the State in connection with the Services, including but not limited to (i) personally identifiable information (“PII”) collected, used, processed, stored, or generated as the result of the Services, including, without limitation, any information that identifies an individual, such as an individual’s social security number or other government-issued identification number, date of birth, address, telephone number, biometric data, mother’s maiden name, email address, credit card information, or an individual’s name in combination with any other of the elements here listed; and (ii) personal health information (“PHI”) collected, used, processed, stored, or generated as the result of the Services, which is defined under the Health Insurance Portability and Accountability Act (“HIPAA”) and its related rules and regulations. State Data is and will remain the sole and exclusive property of the State and all right, title, and interest in the same is reserved by the State. This Section 18.1 survives termination or expiration of this Contract.
18.2 Contractor Use of State Data. Contractor is provided a limited license to State Data for the sole and exclusive purpose of providing the Services, including a license to collect, process, store, generate,

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and display State Data only to the extent necessary in the provision of the Services. Contractor must: (a) keep and maintain State Data in strict confidence, using such degree of care as is appropriate and consistent with its obligations as further described in this Contract and applicable law to avoid unauthorized access, use, disclosure, or loss; (b) use and disclose State Data solely and exclusively for the purpose of providing the Services, such use and disclosure being in accordance with this Contract, any applicable Statement of Work, and applicable law; (c) keep and maintain State Data in the continental United States; and (d) not use, sell, rent, transfer, distribute, or otherwise disclose or make available State Data for Contractor’s own purposes or for the benefit of anyone other than the State without the State’s prior written consent. This Section 18.2 survives termination or expiration of this Contract.
18.3 Loss or Compromise of Data. In the event of any act, error or omission, negligence, misconduct, or breach on the part of Contractor that compromises or is suspected to compromise the security, confidentiality, or integrity of State Data or the physical, technical, administrative, or organizational safeguards put in place by Contractor that relate to the protection of the security, confidentiality, or integrity of State Data, Contractor must, as applicable: (a) notify the State as soon as practicable but no later than twenty-four (24) hours of becoming aware of such occurrence; (b) cooperate with the State in investigating the occurrence, including making available all relevant records, logs, files, data reporting, and other materials required to comply with applicable law or as otherwise required by the State; (c) in the case of PII or PHI, at the State’s sole election, (i) with approval and assistance from the State, notify the affected individuals who comprise the PII or PHI as soon as practicable but no later than is required to comply with applicable law, or, in the absence of any legally required notification period, within five (5) calendar days of the occurrence; or (ii) reimburse the State for any costs in notifying the affected individuals; (d) in the case of PII, provide third-party credit and identity monitoring services to each of the affected individuals who comprise the PII for the period required to comply with applicable law, or, in the absence of any legally required monitoring services, for no less than twenty-four (24) months following the date of notification to such individuals; (e) perform or take any other actions required to comply with applicable law as a result of the occurrence; (f) pay for any costs associated with the occurrence, including but not limited to any costs incurred by the State in investigating and resolving the occurrence, including reasonable attorney’s fees associated with such investigation and resolution; (g) without limiting Contractor’s obligations of indemnification as further described in this Contract, indemnify, defend, and hold harmless the State for any and all claims, including reasonable attorneys’ fees, costs, and incidental expenses, which may be suffered by, accrued against, charged to, or recoverable from the State in connection with the occurrence; (h) be responsible for recreating lost State Data in the manner and on the schedule set by the State without charge to the State; and (i) provide to the State a detailed plan within ten (10) calendar days of the occurrence describing the measures Contractor will undertake to prevent a future occurrence. Notification to affected individuals, as described above, must comply with applicable law, be written in plain language, not be tangentially used for any solicitation purposes, and contain, at a minimum: name and contact information of Contractor’s representative; a description of the nature of the loss; a list of the types of data involved; the known or approximate date of the loss; how such loss may affect the affected individual; what steps Contractor has taken to protect the affected individual; what steps the affected individual can take to protect himself or herself; contact information for major credit card reporting agencies; and, information regarding the credit and identity monitoring services to be provided by Contractor. The State will have the option to review and approve any notification sent to affected individuals prior to its delivery. Notification to any other party, including but not limited to public media outlets, must be reviewed and approved by the State in writing prior to its dissemination. The parties agree that any damages relating to a breach of this Section 18.3 are to be considered direct damages and not consequential damages. This section survives termination or expiration of this Contract. This Section survives termination or expiration of this Contract.

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18.4 Backup and Extraction of State Data. If the Operating Environment is Externally Hosted, Contractor will conduct, or cause to be conducted periodic back-ups of State Data at a frequency that will ensure the RPO requirements set forth in Section 22.1 of this Contract. All backed up State Data shall be located in the continental United States. Contractor must, within five (5) Business Days of the State’s request, provide the State, without charge and without any conditions or contingencies whatsoever (including but not limited to the payment of any fees due to Contractor), an extract of State Data in the format specified by the State.
18.5 Discovery. Contractor shall immediately notify the State upon receipt of any requests which in any way might reasonably require access to State Data or the State's use of the Operating Environment (if Externally Hosted). Contractor shall notify the State’s Business Owner and Contract Owner by the fastest means available and also in writing. In no event shall Contractor provide such notification more than twenty-four (24) hours after Contractor receives the request. Contractor shall not respond to subpoenas, service of process, FOIA requests, and other legal requests related to the State without first notifying the State and obtaining the State’s prior approval of Contractor’s proposed responses. Contractor agrees to provide its completed responses to the State with adequate time for State review, revision and approval.
18.6 State’s Governance, Risk and Compliance (GRC) platform. Throughout the Term, Contractor must assist the State, at no additional cost, with development, completion and on-going maintenance of a system security plan (SSP) using the State’s automated governance, risk and compliance platform, which requires Contractor to submit evidence, upon request from the State, in order to validate Contractor’s security controls within two weeks of the State’s request. On an annual basis, or as otherwise required by the State such as for significant changes, re-assessment of the system’s controls will be required to receive and maintain an authority to operate (ATO). All identified risks from the SSP will be remediated through a Plan of Action and Milestones (POAM) process with remediation time frames based on the risk level of the identified risk. For all findings associated with the Contractor’s solution, at no additional cost to the State, Contractor will be required to create or assist with the creation of State approved POAMs and perform related remediation activities. Contractor may request risk acceptance, supported by compensating controls, however only the State, at its sole discretion, will determine if it will accept any risk.
19. Confidential Information. Each party acknowledges that it may be exposed to or acquire communication or data of the other party that is confidential in nature and is not intended to be disclosed to third parties. This Section 19 survives termination or expiration of this Contract.
19.1 Meaning of Confidential Information. The term “Confidential Information” means all information and documentation of a party that: (a) has been marked “confidential” or with words of similar meaning, at the time of disclosure by such party; (b) if disclosed orally or not marked “confidential” or with words of similar meaning, was subsequently summarized in writing by the disclosing party and marked “confidential” or with words of similar meaning; and, (c) should reasonably be recognized as confidential information of the disclosing party. The term “Confidential Information” does not include any information or documentation that was or is: (a) in the possession of the State and subject to disclosure under the Michigan Freedom of Information Act (FOIA); (b) already in the possession of the receiving party without an obligation of confidentiality; (c) developed independently by the receiving party, as demonstrated by the receiving party, without violating the disclosing party’s proprietary rights; (d) obtained from a source other than the disclosing party without an obligation of confidentiality; or, (e) publicly available when received, or thereafter became publicly available (other than through any unauthorized disclosure by,

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through, or on behalf of, the receiving party). Notwithstanding the above, in all cases and for all matters, State Data is deemed to be Confidential Information.
19.2 Obligation of Confidentiality. The parties agree to hold all Confidential Information in strict confidence and not to copy, reproduce, sell, transfer, or otherwise dispose of, give or disclose such Confidential Information to third parties other than employees, agents, or subcontractors of a party who have a need to know in connection with this Contract or to use such Confidential Information for any purposes whatsoever other than the performance of this Contract. The parties agree to advise and require their respective employees, agents, and subcontractors of their obligations to keep all Confidential Information confidential. Disclosure to the Contractor’s subcontractor is permissible where: (a) the subcontractor is a Subcontractor; (b) the disclosure is necessary or otherwise naturally occurs in connection with work that is within the Subcontractor's responsibilities; and (c) Contractor obligates the Subcontractor in a written contract to maintain the State’s Confidential Information in confidence. At the State’s request, any of the Contractor’s Representatives may be required to execute a separate agreement to be bound by the provisions of this Section 19.2.
19.3 Cooperation to Prevent Disclosure of Confidential Information. Each party must use its best efforts to assist the other party in identifying and preventing any unauthorized use or disclosure of any Confidential Information. Without limiting the foregoing, each party must advise the other party immediately in the event either party learns or has reason to believe that any person who has had access to Confidential Information has violated or intends to violate the terms of this Contract. Each party will cooperate with the other party in seeking injunctive or other equitable relief against any such person.
19.4 Remedies for Breach of Obligation of Confidentiality. Each party acknowledges that breach of its obligation of confidentiality may give rise to irreparable injury to the other party, which damage may be inadequately compensable in the form of monetary damages. Accordingly, a party may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies which may be available, to include, in the case of the State, at the sole election of the State, the immediate termination, without liability to the State, of this Contract or any Statement of Work corresponding to the breach or threatened breach.
19.5 Surrender of Confidential Information upon Termination. Upon termination or expiration of this Contract or a Statement of Work, in whole or in part, each party must, within five (5) Business Days from the date of termination, return to the other party any and all Confidential Information received from the other party, or created or received by a party on behalf of the other party, which are in such party’s possession, custody, or control. If Contractor or the State determine that the return of any Confidential Information is not feasible, such party must destroy the Confidential Information and certify the same in writing within five (5) Business Days from the date of termination to the other party.
20. HIPAA Compliance. The State and Contractor must comply with all obligations under HIPAA and its accompanying regulations, including but not limited to entering into a business associate agreement, if reasonably necessary to keep the State and Contractor in compliance with HIPAA.
21. Accessibility Requirements.
21.1 All Software provided by Contractor under this Contract, including associated content and documentation, must conform to WCAG 2.0 Level AA. Contractor must provide a description of conformance with WCAG 2.0 Level AA specifications by providing a completed PAT for each product provided under the Contract. At a minimum, Contractor must comply with the WCAG 2.0 Level AA conformance claims it made to the State, including the level of conformance provided in any PAT. Throughout the Term of the Contract, Contractor must:

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(a) maintain compliance with WCAG 2.0 Level AA and meet or exceed the level of conformance provided in its written materials, including the level of conformance provided in each PAT;
(b) comply with plans and timelines approved by the State to achieve conformance in the event of any deficiencies;
(c) ensure that no Maintenance Release, New Version, update or patch, when properly installed in accordance with this Contract, will have any adverse effect on the conformance of Contractor’s Software to WCAG 2.0 Level AA;
(d) promptly respond to and resolve any complaint the State receives regarding accessibility of Contractor’s Software;
(e) upon the State’s written request, provide evidence of compliance with this Section by delivering to the State Contractor’s most current PAT for each product provided under the Contract; and
(f) participate in the State of Michigan Digital Standards Review described below.
21.2 State of Michigan Digital Standards Review. Contractor must assist the State, at no additional cost, with development, completion, and on-going maintenance of an accessibility plan, which requires Contractor, upon request from the State, to submit evidence to the State to validate Contractor’s accessibility and compliance with WCAG 2.0 Level AA. Prior to the solution going-live and thereafter on an annual basis, or as otherwise required by the State, re-assessment of accessibility may be required. At no additional cost, Contractor must remediate all issues identified from any assessment of accessibility pursuant to plans and timelines that are approved in writing by the State.
21.3 Warranty. Contractor warrants that all WCAG 2.0 Level AA conformance claims made by Contractor pursuant to this Contract, including all information provided in any PAT Contractor provides to the State, are true and correct. If the State determines such conformance claims provided by the Contractor represent a higher level of conformance than what is actually provided to the State, Contractor will, at its sole cost and expense, promptly remediate its Software to align with Contractor’s stated WCAG 2.0 Level AA conformance claims in accordance with plans and timelines that are approved in writing by the State. If Contractor is unable to resolve such issues in a manner acceptable to the State, in addition to all other remedies available to the State, the State may terminate this Contract for cause under Section 23.1.
21.4 Contractor must, without limiting Contractor’s obligations of indemnification as further described in this Contract, indemnify, defend, and hold harmless the State for any and all claims, including reasonable attorneys’ fees, costs, and incidental expenses, which may be suffered by, accrued against, charged to, or recoverable from the State arising out of its failure to comply with the foregoing accessibility standards.
21.5 Failure to comply with the requirements in this Section 21 shall constitute a material breach of this Contract.
22. Disaster Recovery and Backup. Throughout the Term and at all times in connection with its actual or required performance of the Services, if the Operating Environment is Externally Hosted, Contractor will:
22.1 maintain and operate a backup and disaster recovery plan to achieve a Recovery Point Objective (RPO) and a Recovery Time Objective (RTO) as specified in the Statement of Work (the “DR Plan”), and implement such DR Plan in the event of any unplanned interruption of the Services.

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Contractor’s current DR Plan, revision history, and any reports or summaries relating to past testing of or pursuant to the DR Plan are attached as Schedule E. Contractor will actively test, review and update the DR Plan on at least an annual basis using industry best practices as guidance. Contractor will provide the State with copies of all such updates to the Plan within fifteen (15) days of its adoption by Contractor. All updates to the DR Plan are subject to the requirements of this Section 22; and
22.2 provide the State with copies of all reports resulting from any testing of or pursuant to the DR Plan promptly after Contractor’s receipt or preparation. If Contractor fails to reinstate all material Services within the periods of time set forth in the DR Plan, the State may, in addition to any other remedies available under this Contract, in its sole discretion, immediately terminate this Contract as a non-curable default under Section 23.1(a).
23. Termination, Expiration, Transition. The State may terminate this Contract, the Support Services, or any Statement of Work, in accordance with the following:
23.1 Termination for Cause. In addition to any right of termination set forth elsewhere in this Contract:
(a) The State may terminate this Contract for cause, in whole or in part, if Contractor, as determined by the State: (i) endangers the value, integrity, or security of State Systems, State Data, or the State’s facilities or personnel; (ii) becomes insolvent, petitions for bankruptcy court proceedings, or has an involuntary bankruptcy proceeding filed against it by any creditor; or (iii) breaches any of its material duties or obligations under this Contract. Any reference to specific breaches being material breaches within this Contract will not be construed to mean that other breaches are not material.
(b) If the State terminates this Contract under this Section 23.1, the State will issue a termination notice specifying whether Contractor must: (a) cease performance immediately, or (b) continue to perform for a specified period. If it is later determined that Contractor was not in breach of this Contract, the termination will be deemed to have been a termination for convenience, effective as of the same date, and the rights and obligations of the parties will be limited to those provided in Section 23.2.
(c) The State will only pay for amounts due to Contractor for Services accepted by the State on or before the date of termination, subject to the State’s right to set off any amounts owed by the Contractor for the State’s reasonable costs in terminating this Contract. Contractor must promptly reimburse to the State any Fees prepaid by the State prorated to the date of such termination, including any prepaid Fees. Further, Contractor must pay all reasonable costs incurred by the State in terminating this Contract for cause, including administrative costs, attorneys’ fees, court costs, transition costs, and any costs the State incurs to procure the Services from other sources.
23.2 Termination for Convenience. The State may immediately terminate this Contract in whole or in part, without penalty and for any reason, including but not limited to, appropriation or budget shortfalls. The termination notice will specify whether Contractor must: (a) cease performance immediately, or (b) continue to perform in accordance with Section 23.3. If the State terminates this Contract for convenience, the State will pay all reasonable costs, as determined by the State, for State approved Transition Responsibilities to the extent the funds are available.
23.3 Transition Responsibilities. Upon termination or expiration of this Contract for any reason, Contractor must, for a period of time specified by the State (not to exceed 90 calendar days; the “Transition Period”), provide all reasonable transition assistance requested by the State, to allow for the expired or terminated portion of the Contract to continue without interruption or adverse effect, and to facilitate the orderly transfer of the Services to the State or its designees. Such transition assistance may

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include but is not limited to: (a) continuing to perform the Services at the established Contract rates; (b) taking all reasonable and necessary measures to transition performance of the work, including all applicable Services to the State or the State’s designee; (c) taking all necessary and appropriate steps, or such other action as the State may direct, to preserve, maintain, protect, or return to the State all State Data; and (d) preparing an accurate accounting from which the State and Contractor may reconcile all outstanding accounts (collectively, the “Transition Responsibilities”). The Term of this Contract is automatically extended through the end of the Transition Period.
23.4 Survival. This Section 23 survives termination or expiration of this Contract.
24. Stop Work Order. The State may, at any time, order the Services of Contractor fully or partially stopped for its own convenience for up to ninety (90) calendar days at no additional cost to the State. The State will provide Contractor a written notice detailing such suspension (a “Stop Work Order”). Contractor must comply with the Stop Work Order upon receipt. Within 90 days, or any longer period agreed to by Contractor, the State will either: (a) issue a notice authorizing Contractor to resume work, or (b) terminate this Contract. The State will not pay for any Services, Contractor’s lost profits, or any additional compensation during a stop work period.
25. Contractor Representations and Warranties.
25.1 Authority. Contractor represents and warrants to the State that:
(a) It is duly organized, validly existing, and in good standing as a corporation or other entity as represented under this Contract under the laws and regulations of its jurisdiction of incorporation, organization, or chartering;
(b) It has the full right, power, and authority to enter into this Contract, to grant the rights and licenses granted under this Contract, and to perform its contractual obligations;
(c) The execution of this Contract by its Representative has been duly authorized by all necessary organizational action;
(d) When executed and delivered by Contractor, this Contract will constitute the legal, valid, and binding obligation of Contractor, enforceable against Contractor in accordance with its terms; and
(e) Contractor is neither currently engaged in nor will engage in the boycott of a person based in or doing business with a strategic partner as described in 22 USC 8601 to 8606.
25.2 Bid Response. Contractor represents and warrants to the State that:
(a) The prices proposed by Contractor were arrived at independently, without consultation, communication, or agreement with any other Bidder for the purpose of restricting competition; the prices quoted were not knowingly disclosed by Contractor to any other Bidder to the RFP; and no attempt was made by Contractor to induce any other Person to submit or not submit a proposal for the purpose of restricting competition;
(b) All written information furnished to the State by or for Contractor in connection with this Contract, including Contractor’s Bid Response, is true, accurate, and complete, and contains no untrue statement of material fact or omits any material fact necessary to make the information not misleading;
(c) Contractor is not in material default or breach of any other contract or agreement that it may have with the State or any of its departments, commissions, boards, or agencies. Contractor further

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represents and warrants that it has not been a party to any contract with the State or any of its departments that was terminated by the State within the previous five (5) years for the reason that Contractor failed to perform or otherwise breached an obligation of the contract; and
(d) If any of the certifications, representations, or disclosures made in Contractor’s Bid Response change after contract award, the Contractor is required to report those changes immediately to the Contract Administrator.
25.3 Software Representations and Warranties. Contractor further represents and warrants to the State that:
(a) it is the legal and beneficial owner of the entire right, title and interest in and to the Software, including all Intellectual Property Rights relating thereto;
(b) it has, and throughout the Term, will retain the unconditional and irrevocable right, power and authority including all permits and licenses required, to provide the Services and grant and perform all rights and licenses granted or required to be granted by it under this Contract;
(c) the Software, and the State's use thereof, is and throughout the license term will be free and clear of all encumbrances, liens and security interests of any kind;
(d) neither its grant of the license, nor its performance under this Contract does or to its knowledge will at any time:
(i) conflict with or violate any applicable Law;
(ii) require the consent, approval or authorization of any governmental or regulatory authority or other third party; or
(iii) require the provision of any payment or other consideration to any third party;
(e) when used by the State or any Authorized User in accordance with this Contract and the Documentation, the Software, Documentation, and Operating Environment (if Externally Hosted) as delivered or installed by Contractor does not or will not:
(i) infringe, misappropriate or otherwise violate any Intellectual Property Right or other right of any third party; or
(ii) fail to comply with any applicable Law;
(f) as provided by Contractor, the Software, and Operating Environment (if Externally Hosted), do not or will not at any time during the license term contain any:
(i) Harmful Code; or
(ii) Open-Source Components or operate in such a way that it is developed or compiled with or linked to any Open-Source Components, other than Approved Open-Source Components specifically described in the Statement of Work.
(g) all Documentation is and will be complete and accurate in all material respects when provided to the State such that at no time during the license term will the Software have any material undocumented feature;

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(h) it will perform all Services in a timely, skillful, professional and workmanlike manner in accordance with commercially reasonable industry standards and practices for similar services, using personnel with the requisite skill, experience and qualifications, and will devote adequate resources to meet its obligations under this Contract;
(i) when used in the Operating Environment (or any successor thereto) in accordance with the Documentation, all Software as provided by Contractor, will be fully operable, meet all applicable specifications, and function in all respects, in conformity with this Contract and the Documentation; and
(j) no Maintenance Release or New Version, when properly installed in accordance with this Contract, will have a material adverse effect on the functionality or operability of the Software.
25.4 Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, CONTRACTOR HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THIS CONTRACT.
26. Indemnification
26.1 General Indemnification. Contractor must defend, indemnify and hold the State, its departments, divisions, agencies, offices, commissions, officers, and employees harmless, without limitation, from and against any and all actions, claims, losses, liabilities, damages, costs, attorney fees, and expenses (including those required to establish the right to indemnification), arising out of or relating to: (a) any breach by Contractor (or any of Contractor’s employees, agents, subcontractors, or by anyone else for whose acts any of them may be liable) of any of the promises, agreements, representations, warranties, or insurance requirements contained in this Contract; (b) any infringement, misappropriation, or other violation of any Intellectual Property Right or other right of any Third Party; and (c) any bodily injury, death, or damage to real or tangible personal property occurring wholly or in part due to action or inaction by Contractor (or any of Contractor’s employees, agents, subcontractors, or by anyone else for whose acts any of them may be liable).
26.2 Indemnification Procedure. The State will notify Contractor in writing if indemnification is sought; however, failure to do so will not relieve Contractor, except to the extent that Contractor is materially prejudiced. Contractor must, to the satisfaction of the State, demonstrate its financial ability to carry out these obligations. The State is entitled to: (i) regular updates on proceeding status; (ii) participate in the defense of the proceeding; (iii) employ its own counsel; and to (iv) retain control of the defense, at its own cost and expense, if the State deems necessary. Contractor will not, without the State’s prior written consent (not to be unreasonably withheld), settle, compromise, or consent to the entry of any judgment in or otherwise seek to terminate any claim, action, or proceeding. Any litigation activity on behalf of the State or any of its subdivisions, under this Section 26, must be coordinated with the Department of Attorney General. An attorney designated to represent the State may not do so until approved by the Michigan Attorney General and appointed as a Special Assistant Attorney General.
26.3 Infringement Remedies.
(a) The remedies set forth in this Section 26.3 are in addition to, and not in lieu of, all other remedies that may be available to the State under this Contract or otherwise, including the State’s right to be indemnified for such actions.
(b) If any Software or any component thereof, other than State Materials, is found to be infringing or if any use of any Software or any component thereof is enjoined, threatened to be enjoined or otherwise the subject of an infringement claim, Contractor must, at Contractor’s sole cost and expense:

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(i) procure for the State the right to continue to use such Software or component thereof to the full extent contemplated by this Contract; or
(ii) modify or replace the materials that infringe or are alleged to infringe (“Allegedly Infringing Materials”) to make the Software and all of its components non-infringing while providing fully equivalent features and functionality.
(c) If neither of the foregoing is possible notwithstanding Contractor’s best efforts, then Contractor may direct the State to cease any use of any materials that have been enjoined or finally adjudicated as infringing, provided that Contractor will:
(i) refund to the State all amounts paid by the State in respect of such Allegedly Infringing Materials and any other aspects of the Software provided under the Statement of Work for the Allegedly Infringing Materials that the State cannot reasonably use as intended under this Contract; and
(ii) in any case, at its sole cost and expense, secure the right for the State to continue using the Allegedly Infringing Materials for a transition period of up to six (6) months to allow the State to replace the affected features of the Software without disruption.
(d) If Contractor directs the State to cease using any Software under subsection (c), the State may terminate this Contract for cause under Section 23.1.
(e) Contractor will have no liability for any claim of infringement arising solely from:
(i) Contractor’s compliance with any designs, specifications, or instructions of the State; or
(ii) modification of the Software by the State without the prior knowledge and approval of Contractor;
unless the claim arose against the Software independently of any of the above specified actions. 27. Liquidated Damages.
27.1 The parties agree that any delay or failure by Contractor to timely perform its obligations in accordance with this Contract, including the Implementation Plan and Milestone Dates agreed to by the parties, will interfere with the proper and timely implementation of the Software, to the loss and damage of the State. Further, the State will incur major costs to perform the obligations that would have otherwise been performed by Contractor. The parties understand and agree that any liquidated damages Contractor must pay to the State as a result of such nonperformance are described in the Statement of Work, and that these amounts are reasonable estimates of the State’s damages in accordance with applicable Law.
27.2 The parties acknowledge and agree that Contractor could incur liquidated damages for more than one event if Contractor fails to timely perform its obligations by each Milestone Date.
27.3 The assessment of liquidated damages will not constitute a waiver or release of any other remedy the State may have under this Contract for Contractor’s breach of this Contract, including without limitation, the State’s right to terminate this Contract for cause under Section 23.1, and the State will be entitled in its discretion to recover actual damages caused by Contractor’s failure to perform its

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obligations under this Contract. However, the State will reduce such actual damages by the amounts of liquidated damages received for the same events causing the actual damages.
27.4 Amounts due the State as liquidated damages may be set off against any Fees payable to Contractor under this Contract, or the State may bill Contractor as a separate item and Contractor will promptly make payments on such bills.
28. Damages Disclaimers and Limitations.
28.1 The State’s Disclaimer of Damages. THE STATE WILL NOT BE LIABLE, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR BY STATUTE OR OTHERWISE, FOR ANY CLAIM RELATED TO OR ARISING UNDER THIS CONTRACT FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS AND LOST BUSINESS OPPORTUNITIES.
28.2 The State’s Limitation of Liability. IN NO EVENT WILL THE STATE’S AGGREGATE LIABILITY TO CONTRACTOR UNDER THIS CONTRACT, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR BY STATUTE OR OTHERWISE, FOR ANY CLAIM RELATED TO OR ARISING UNDER THIS CONTRACT, EXCEED THE MAXIMUM AMOUNT OF FEES PAYABLE UNDER THIS CONTRACT.
29. Records Maintenance, Inspection, Examination, and Audit.
29.1 Right of Audit. The State or its designee may audit Contractor to verify compliance with this Contract. Contractor must retain, and provide to the State or its designee and the auditor general upon request, all financial and accounting records related to this Contract through the Term of this Contract and for four (4) years after the latter of termination, expiration, or final payment under this Contract or any extension (“Financial Audit Period”). If an audit, litigation, or other action involving the records is initiated before the end of the Financial Audit Period, Contractor must retain the records until all issues are resolved.
29.2 Right of Inspection. Within ten (10) calendar days of providing notice, the State and its authorized representatives or designees have the right to enter and inspect Contractor’s premises or any other places where Services are being performed, and examine, copy, and audit all records related to this Contract. Contractor must cooperate and provide reasonable assistance. If financial errors are revealed, the amount in error must be reflected as a credit or debit on subsequent invoices until the amount is paid or refunded. Any remaining balance at the end of this Contract must be paid or refunded within forty-five (45) calendar days.
29.3 Application. This Section 29 applies to Contractor, any Affiliate, and any Subcontractor that performs Services in connection with this Contract.
30. Insurance
30.1 Required Coverage.
(a) Insurance Requirements. Contractor, at its sole expense, must maintain the insurance coverage identified below. All required insurance must: (i) protect the State from claims that arise out of, are alleged to arise out of, or otherwise result from Contractor's or subcontractor's performance; (ii) be primary and non-contributing to any comparable liability insurance (including self-insurance) carried by the State; and (iii) be provided by a company with an A.M. Best rating of "A-" or better, and a financial size of VII or better.

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Required Limits

Additional Requirements

Commercial General Liability Insurance

Minimal Limits: $1,000,000 Each Occurrence Limit $1,000,000 Personal & Advertising Injury
Limit $2,000,000 General Aggregate Limit $2,000,000 Products/Completed Operations

Contractor must have their policy endorsed to add “the State of Michigan, its departments, divisions, agencies, offices, commissions, officers, employees, and agents” as additional insureds using endorsement CG 20 10 11 85, or both CG 2010 07 04 and CG 2037 07 04.

Umbrella or Excess Liability Insurance

Minimum Limits: $5,000,000 General Aggregate

Contractor must have their policy follow form.

Automobile Liability Insurance

Minimum Limits: $1,000,000 Per Accident

Contractor must have their policy: (1) endorsed to add “the State of Michigan, its departments, divisions, agencies, offices, commissions, officers, employees, and agents” as additional insureds; and (2) include Hired and Non-Owned Automobile coverage.

Workers' Compensation Insurance

Minimum Limits:
Coverage according to applicable laws governing work activities

Waiver of subrogation, except where waiver is prohibited by law.

Employers Liability Insurance

Minimum Limits: $500,000 Each Accident $500,000 Each Employee by Disease $500,000 Aggregate Disease

Privacy and Security Liability (Cyber Liability) Insurance

Minimum Limits:

Contractor must have their policy cover information security and privacy liability, privacy notification costs, regulatory

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$1,000,000 Each Occurrence $1,000,000 Annual Aggregate

defense and penalties, and website media content liability.

Crime (Fidelity) Insurance

Minimum Limits: $1,000,000 Employee Theft Per Loss

Contractor must have their policy: (1) cover forgery and alteration, theft of money and securities, robbery and safe burglary, computer fraud, funds transfer fraud, money order and counterfeit currency, and (2) endorsed to add “the State of Michigan, its departments, divisions, agencies, offices, commissions, officers, employees, and agents” as Loss Payees.

Professional Liability (Errors and Omissions) Insurance

Minimum Limits: $3,000,000 Each Occurrence $3,000,000 Annual Aggregate

(b) If any required policies provide claims-made coverage, the Contractor must: (i) provide coverage with a retroactive date before the Effective Date of the Contract or the beginning of Contract Activities; (ii) maintain coverage and provide evidence of coverage for at least three (3) years after completion of the Contract Activities; and (iii) if coverage is cancelled or not renewed, and not replaced with another claims-made policy form with a retroactive date prior to the Effective Date of this Contract, Contractor must purchase extended reporting coverage for a minimum of three (3) years after completion of work.
(c) Contractor must: (i) provide insurance certificates to the Contract Administrator, containing the agreement or delivery order number, at Contract formation and within twenty (20) calendar days of the expiration date of the applicable policies; (ii) require that subcontractors maintain the required insurances contained in this Section; (iii) notify the Contract Administrator within five (5) business days if any policy is cancelled; and (iv) waive all rights against the State for damages covered by insurance. Failure to maintain the required insurance does not limit this waiver.
30.2 Non-waiver. This Section 30 is not intended to and is not to be construed in any manner as waiving, restricting or limiting the liability of either party for any obligations under this Contract (including any provisions hereof requiring Contractor to indemnify, defend and hold harmless the State).
31. Dispute Resolution.
31.1 Unless otherwise specified in the Statement of Work, the parties will endeavor to resolve any Contract dispute in accordance with Section 31 (the “Dispute Resolution Procedure”). The initiating party will reduce its description of the dispute to writing (including all supporting documentation) and

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deliver it to the responding party’s Project Manager. The responding party’s Project Manager must respond in writing within five (5) Business Days. The initiating party has five (5) Business Days to review the response. If after such review resolution cannot be reached, both parties will have an additional five (5) Business Days to negotiate in good faith to resolve the dispute. If the dispute cannot be resolved within a total of fifteen (15) Business Days, the parties must submit the dispute to the parties’ Contract Administrators. The parties will continue performing while a dispute is being resolved, unless the dispute precludes performance. A dispute involving payment does not preclude performance.
31.2 Litigation to resolve the dispute will not be instituted until after the dispute has been elevated to the parties’ Contract Administrators, and either Contract Administrator concludes that resolution is unlikely, or fails to respond within fifteen (15) Business Days. The parties are not prohibited from instituting formal proceedings: (a) to avoid the expiration of statute of limitations period; (b) to preserve a superior position with respect to creditors; or (c) where a party makes a determination that a temporary restraining order or other injunctive relief is the only adequate remedy. This Section 31 does not limit the State’s right to terminate this Contract.
32. General Provisions
32.1 Further Assurances. Each party will, upon the reasonable request of the other party, execute such documents and perform such acts as may be necessary to give full effect to the terms of this Contract.
32.2 Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Contract is to be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party has authority to contract for or bind the other party in any manner whatsoever.
32.3 Media Releases. News releases (including promotional literature and commercial advertisements) pertaining to this Contract or project to which it relates must not be made without the prior written approval of the State, and then only in accordance with the explicit written instructions of the State.
32.4 Notices. All notices, requests, consents, claims, demands, waivers and other communications under this Contract must be in writing and addressed to the parties as follows (or as otherwise specified by a party in a notice given in accordance with this Section 32.4):

If to Contractor: If to State:

[CONTRACTOR ADDRESS]

Email:

[NOTICE CONTACT'S EMAIL ADDRESS]

Attention:

[NAME AND TITLE OF OFFICER TO RECEIVE

NOTICES]

PO Box 30026

Lansing, MI 48909

Email:

martinc20@michigan.gov

Attention:

Christopher Martin, Contract Administrator

Notices sent in accordance with this Section 32.4 will be deemed effectively given: (a) when received, if delivered by hand (with written confirmation of receipt); (b) when received, if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by e-mail (with confirmation of transmission), if sent during normal business hours of the recipient, and on the next

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Business Day, if sent after normal business hours of the recipient; or (d) on the fifth (5th) day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid.
32.5 Headings. The headings in this Contract are for reference only and do not affect the interpretation of this Contract.

32.6 Assignment. Contractor may not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Contract, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the State’s prior written consent. The State has the right to terminate this Contract in its entirety or any Services or Statements of Work hereunder, pursuant to Section 23.1, if Contractor delegates or otherwise transfers any of its obligations or performance hereunder, whether voluntarily, involuntarily, by operation of law or otherwise, and no such delegation or other transfer will relieve Contractor of any of such obligations or performance. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation or reorganization involving Contractor (regardless of whether Contractor is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations, or performance under this Contract for which the State’s prior written consent is required. Any purported assignment, delegation, or transfer in violation of this Section 32.6 is void.

32.7 No Third-party Beneficiaries. This Contract is for the sole benefit of the parties and their respective successors and permitted assigns. Nothing herein, express or implied, is intended to or will confer on any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Contract.

32.8 Amendment and Modification; Waiver. No amendment to or modification of this Contract is effective unless it is in writing, identified as an amendment to this Contract and signed by both parties Contract Administrator. Further, certain amendments to this Contract may require State Administrative Board Approval. No waiver by any party of any of the provisions of this Contract will be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Contract, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Contract will operate or be construed as a waiver. Nor will any single or partial exercise of any right, remedy, power or privilege under this Contract preclude the exercise of any other right, remedy, power or privilege.

32.9 Severability. If any term or provision of this Contract is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other term or provision of this Contract or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto will negotiate in good faith to modify this Contract so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

32.10

Governing Law. This Contract is governed, construed, and enforced in accordance with

Michigan law, excluding choice-of-law principles, and all claims relating to or arising out of this Contract

are governed by Michigan law, excluding choice-of-law principles. Any dispute arising from this Contract

must be resolved in the Michigan Court of Claims. Complaints against the State must be initiated in

Ingham County, Michigan. Contractor waives any objections, such as lack of personal jurisdiction or

forum non conveniens. Contractor must appoint agents in Michigan to receive service of process.

32.11

Equitable Relief. Each party to this Contract acknowledges and agrees that (a) a breach

or threatened breach by such party of any of its obligations under this Contract may give rise to

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irreparable harm to the other party for which monetary damages would not be an adequate remedy and (b) in the event of a breach or a threatened breach by such party of any such obligations, the other party hereto is, in addition to any and all other rights and remedies that may be available to such party at law, at equity or otherwise in respect of such breach, entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction, without any requirement to post a bond or other security, and without any requirement to prove actual damages or that monetary damages will not afford an adequate remedy. Each party to this Contract agrees that such party will not oppose or otherwise challenge the appropriateness of equitable relief or the entry by a court of competent jurisdiction of an order granting equitable relief, in either case, consistent with the terms of this Section 32.11.

32.12

Nondiscrimination. Under the Elliott-Larsen Civil Rights Act, 1976 PA 453, MCL 37.2101,

et seq., the Persons with Disabilities Civil Rights Act, 1976 PA 220, MCL 37.1101, et seq., and Executive

Directive 2019-09, Vendor and its subcontractors agree not to discriminate against an employee or

applicant for employment with respect to hire, tenure, terms, conditions, or privileges of employment, or a

matter directly or indirectly related to employment, because of race, color, religion, national origin, age,

sex (as defined in Executive Directive 2019-09), height, weight, marital status, partisan considerations,

any mental or physical disability, or genetic information that is unrelated to the person’s ability to perform

the duties of a particular job or position. Breach of this covenant is a material breach of the Contract.

32.13

Unfair Labor Practice. Under MCL 423.324, the State may void any Contract with a

Contractor or Subcontractor who appears on the Unfair Labor Practice register compiled under MCL

423.322.

32.14

Schedules All Schedules that are referenced herein and attached hereto are hereby

incorporated by reference. The following Schedules are attached hereto and incorporated herein:

Schedule A Schedule B Schedule C Schedule D Schedule E Schedule F Schedule G

Statement of Work Pricing Maintenance and Support Schedule (if State hosted) Service Level Agreement (if Externally Hosted) Disaster Recovery Plan (if Externally Hosted) Data Security Requirements Federal Provisions Addendum

32.15

Counterparts. This Contract may be executed in counterparts, each of which will be

deemed an original, but all of which together are deemed to be one and the same agreement and will

become effective and binding upon the parties as of the Effective Date at such time as all the signatories

hereto have signed a counterpart of this Contract. A signed copy of this Contract delivered by facsimile,

e-mail or other means of electronic transmission (to which a signed copy is attached) is deemed to have

the same legal effect as delivery of an original signed copy of this Contract.

32.16

Effect of Contractor Bankruptcy. All rights and licenses granted by Contractor under this

Contract are and will be deemed to be rights and licenses to “intellectual property,” and all Software and

Deliverables are and will be deemed to be “embodiments” of “intellectual property,” for purposes of, and

as such terms are used in and interpreted under, Section 365(n) of the United States Bankruptcy Code

(the “Code”). If Contractor or its estate becomes subject to any bankruptcy or similar proceeding, the

State retains and has the right to fully exercise all rights, licenses, elections, and protections under this

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Contract, the Code and all other applicable bankruptcy, insolvency, and similar Laws with respect to all Software and other Deliverables. Without limiting the generality of the foregoing, Contractor acknowledges and agrees that, if Contractor or its estate shall become subject to any bankruptcy or similar proceeding:

(a) all rights and licenses granted to the State under this Contract will continue subject to the terms and conditions of this Contract, and will not be affected, even by Contractor’s rejection of this Contract; and

(b) the State will be entitled to a complete duplicate of (or complete access to, as appropriate) all such intellectual property and embodiments of intellectual property comprising or relating to any Software or other Deliverables, and the same, if not already in the State’s possession, will be promptly delivered to the State, unless Contractor elects to and does in fact continue to perform all of its obligations under this Contract.

32.17

Compliance with Laws. Contractor and its Representatives must comply with all Laws in

connection with this Contract.

32.18

Non-Exclusivity. Nothing contained in this Contract is intended nor is to be construed as

creating any requirements contract with Contractor. This Contract does not restrict the State or its

agencies from acquiring similar, equal, or like Services from other sources.

32.19

Administrative Fee and Reporting Contractor must pay an administrative fee of 1% on all

payments made to Contractor under the Contract including transactions with the State (including its

departments, divisions, agencies, offices, and commissions), MiDEAL members, and other states (including

governmental subdivisions and authorized entities). Administrative fee payments must be made online by

check or credit card.:

State of MI Admin Fees: https://www.thepayplace.com/mi/dtmb/adminfee State of MI MiDEAL Fees: https://www.thepayplace.com/mi/dtmb/midealfee

Contractor must submit an itemized purchasing activity report, which includes at a minimum, the name of the purchasing entity and the total dollar volume in sales. Reports should be mailed to MiDeal@michigan.gov.

The administrative fee and purchasing activity report are due within 30 calendar days from the last day of each calendar quarter.

32.20

Extended Purchasing Program. This contract is extended to MiDEAL members. MiDEAL

members include local units of government, school districts, universities, community colleges, and nonprofit

hospitals. A current list of MiDEAL members is available at www.michigan.gov/mideal.

Upon written agreement between the State and Contractor, this contract may also be extended to: (a) other states (including governmental subdivisions and authorized entities) and (b) State of Michigan employees.

If extended, Contractor must supply all Contract Activities at the established Contract prices and terms. The State reserves the right to impose an administrative fee and negotiate additional discounts based on any increased volume generated by such extensions.

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Contractor must submit invoices to, and receive payment from, extended purchasing program members on a direct and individual basis. Entire Agreement. These Terms and Conditions, including all Statements of Work and other Schedules and Exhibits (again collectively the “Contract”) constitutes the sole and entire agreement of the parties to this Contract with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the Terms and Conditions, the Schedules, Exhibits, and a Statement of Work, the following order of precedence governs: (a) first, these Terms and Conditions and (b) second, each Statement of Work; and (c) third, the Exhibits and Schedules to this Contract. NO TERMS ON CONTRACTOR’S INVOICES, WEBSITE, BROWSE-WRAP, SHRINK-WRAP, CLICK-WRAP, CLICK-THROUGH OR OTHER NONNEGOTIATED TERMS AND CONDITIONS PROVIDED WITH ANY OF THE SERVICES, OR DOCUMENTATION HEREUNDER, EVEN IF ATTACHED TO STATE’S DELIVERY OR PURCHASE ORDER, WILL CONSTITUTE A PART OR AMENDMENT OF THIS CONTRACT OR IS BINDING ON THE STATE OR ANY AUTHORIZED USER FOR ANY PURPOSE. ALL SUCH OTHER TERMS AND CONDITIONS HAVE NO FORCE AND EFFECT AND ARE DEEMED REJECTED BY THE STATE AND THE AUTHORIZED USER, EVEN IF ACCESS TO OR USE OF SUCH SERVICE OR DOCUMENTATION REQUIRES AFFIRMATIVE ACCEPTANCE OF SUCH TERMS AND CONDITIONS.

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SCHEDULE C Maintenance and Support
The parties agree as follows: 1. Definitions. For purposes of this Schedule, the following terms have the meanings set forth below. All initial capitalized terms in this Schedule that are not defined in this Section 1 to this Schedule shall have the respective meanings given to them in the Contract Terms and Conditions.
“Contact List” means a current list of Contractor contacts and telephone numbers set forth in the attached Exhibit 1 to this Schedule to enable the State to escalate its Support Requests, including: (a) the first person to contact; and (b) the persons in successively more qualified or experienced positions to provide the support sought.
“Critical Service Error” has the meaning set forth in the Service Level Table.
“Error” means, generally, any failure or error referred to in the Service Level Table.
“First Line Support” means the identification, diagnosis and correction of Errors by the State.
“High Service Error” has the meaning set forth in the Service Level Table.
“Low Service Error” has the meaning set forth in the Service Level Table.
“Medium Service Error” has the meaning set forth in the Service Level Table.
“Resolve” and the correlative terms, “Resolved”, “Resolving” and “Resolution” each have the meaning set forth in Section 3.4
“Service Credit” has the meaning set forth in Section 4.1
“Second Line Support” means the identification, diagnosis and correction of Errors by the provision of (a) telephone and email assistance by a qualified individual on the Contact List and remote application support, or (b) on-site technical support at the State's premises by a qualified individual on the Contact List.
“Service Levels” means the defined Error and corresponding required service level responses, response times, Resolutions and Resolution times referred to in the Service Level Table.
“Service Level Table” means the table set out in Section 3.4
“State Cause” means any of the following causes of an Error: (a) a State server hardware problem; (b) a desktop/laptop hardware problem; or (c) a State network communication problem.

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“State Systems” means the State's information technology infrastructure, including the State's computers, software, databases, electronic systems (including database management systems) and networks.
“Support Hours” means 24 hours a day, seven days a week .
“Support Period” means the period of time beginning 90 days after the date the Software has entered full production mode and ending on the date the Contract expires or is terminated.

“Support Request” has the meaning set forth in Section 3.2. 2. Maintenance.

32.21

Maintenance Releases and New Versions. Provided that the State is current on its

Support Services Fees, during the Support Period, Contractor shall provide the State, at no additional

charge, with all Maintenance Releases and New Versions for the Software.

32.22

Installation. The State has no obligation to install or use any Maintenance Release or

New Version. If the State wishes to install any Maintenance Release or New Version, the State shall have

the right to have such Maintenance Release or New Version installed, in the State's discretion, by

Contractor or other authorized party. Contractor shall provide the State, at no additional charge,

adequate Documentation for installation of the Maintenance Release or New Version, which has been

developed and tested by Contractor. The State’s decision not to install or implement a Maintenance

Release or New Version of the Software will not affect its right to receive Support Services throughout the

Term of this Contract.

33. Support Services. The State will provide First Line Support prior to making a Service Request for Second Line Support. Contractor shall perform all Second Line Support and other Support Services during the Support Hours throughout the Support Period in accordance with the terms and conditions of this Schedule and the Contract, including the Service Levels and other Contractor obligations set forth in this Section.
33.1 Support Service Responsibilities. Contractor shall:
(a) provide unlimited telephone support during all Support Hours;
(b) respond to and Resolve all Support Requests in accordance with the Service Levels;
(c) provide unlimited remote Second Line Support to the State during all Support Hours;
(d) provide on-premise Second Line Support to the State if remote Second Line Support will not Resolve the Error; and
(e) provide to the State all such other services as may be necessary or useful to correct an Error or otherwise fulfill the Service Level requirements, including defect repair, programming corrections and remedial programming.
33.2 Support Requests. Once the State has determined that an Error is not the result of a State Cause, the State may request Support Services by way of a Support Request. The State shall classify its requests for Error corrections in accordance with the support request classification and definitions of the

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Service Level Table set forth in Section 3.4 (each a "Support Request"). The State shall notify Contractor of each Support Request by e-mail or telephone. The State shall include in each Support Request a description of the reported Error and the time the State first observed the Error.
33.3 State Obligations. The State shall provide the Contractor with each of the following to the extent reasonably necessary to assist Contractor to reproduce operating conditions similar to those present when the State detected the relevant Error and to respond to and Resolve the relevant Support Request:
(i) if not prohibited by the State’s security policies, remote access to the State Systems, and if prohibited, direct access at the State's premises;
(ii) output and other data, documents and information, each of which is deemed the State's Confidential Information as defined in the Contract; and
(iii) such other reasonable cooperation and assistance as Contractor may request.
33.4 Service Level Table. Response and Resolution times will be measured from the time Contractor receives a Support Request until the respective times Contractor has (a) responded to that Support Request, in the case of response time and (b) Resolved that Support Request, in the case of Resolution time. "Resolve", "Resolved", "Resolution" and correlative capitalized terms mean, with respect to any particular Support Request, that Contractor has corrected the Error that prompted that Support Request and that the State has confirmed such correction and its acceptance of it in writing. Contractor shall respond to and Resolve all Support Requests within the following times based on the State's designation of the severity of the associated Error, subject to the parties' written agreement to revise such designation after Contractor's investigation of the reported Error and consultation with the State:

Support Request Classification Critical Service Error
High Service Error

Definition
(a) Issue affecting entire Software system or single critical production function; (b) Software down or operating in materially degraded state; (c) Data integrity at risk; (d) Material financial impact; (e) Widespread access interruptions: or (f) Classified by the state as a Critical Service Error (a) A Critical Service Error for which the State has received, within the Resolution time for Critical Service Errors, a workaround that the State has accepted in writing; or

Service Level Metric (Required Response
Time) Contractor shall acknowledge receipt of a Support Request within thirty (30) minutes.
Contractor shall acknowledge receipt of a Support Request or, where applicable, the State's written acceptance of a Critical Service Error work-

Service Level Metric (Required Resolution
Time) Contractor shall Resolve the Support Request as soon as practicable and no later than four (4) hours after Contractor's receipt of the Support Request. If the Contractor Resolves the Support Request by way of a work-around accepted in writing by the State, the support classification assessment will be reduced to a High Service Error. Contractor shall Resolve the Support Request as soon as practicable and no later than two (2) Business Days after Contractor's receipt of the Support Request or, where

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(b) Primary component failure that materially impairs Software’s performance; (c) Data entry or access is materially impaired on a limited basis; or (d) performance issues of severe nature impacting critical processes

around, within twenty-four (24) hours.

applicable, the State's written acceptance of a Critical Service Error workaround.

Medium Service Error

An isolated or minor Error in the Software that meets any of the following requirements: (a) does not significantly affect Software functionality; (b) can or does impair or disable only certain nonessential Software functions; or (c) does not materially affect the State's use of the Software

Contractor shall acknowledge receipt of the Support Request within two (2) Business Days.

Contractor shall Resolve the Support Request as soon as practicable and no later than ten (10) Business Days after Contractor's receipt of the Support Request.

33.5 Escalation to Parties' Project Managers. If Contractor does not respond to a Support Request

within the relevant Service Level response time, the State may escalate the Support Request to the

parties' respective Project Managers and then to their respective Contract Administrators.

33.6 Time Extensions. The State may, on a case-by-case basis, agree in writing to a reasonable extension of the Service Level response or Resolution times.

33.7 Contractor Updates. Contractor shall give the State monthly electronic or other written reports and updates of:

(a) the nature and status of its efforts to correct any Error, including a description of the Error and the time of Contractor's response and Resolution;

(b) its Service Level performance, including Service Level response and Resolution times; and

(c) the Service Credits to which the State has become entitled.

3. Service Credits.

3.1 Service Credit Amounts. If the Contractor fails to respond to a Support Request within the applicable Service Level response time or to Resolve a Support Request within the applicable Service Level Resolution time, the State will be entitled to the corresponding service credits specified in the table below ("Service Credits"), provided that the relevant Error did not result from a State Cause.

Support Request Classification

Service Level Credits (For Failure to Respond to any
Support Request Within the Corresponding Response Time)

Service Level Credits (For Failure to Resolve any Support Request Within the Corresponding
Required Resolution Time)

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Critical Service Error
High Service Error

An amount equal to 5% of the then current monthly Support Fee for each hour by which Contractor's response exceeds the required Response time.
An amount equal to 3% of the then current monthly Support Fee for each Business Day, and a pro-rated share of such percentage for each part of a Business Day, by which Contractor's response exceeds the required Response time.

An amount equal to 5% of the then current monthly Support Fee for each hour by which Contractor's Resolution of the Support Request exceeds the required Resolution time. An amount equal to 3% of the then current monthly Support Fee for each Business Day, and a pro-rated share of such percentage for each part of a Business Day, by which Contractor's Resolution of the Support Request exceeds the required Resolution time.

3.2 Compensatory Purpose. The parties intend that the Service Credits constitute compensation to the State, and not a penalty. The parties acknowledge and agree that the State's harm caused by Contractor's delayed delivery of the Support Services would be impossible or very difficult to accurately estimate as of the Effective Date, and that the Service Credits are a reasonable estimate of the anticipated or actual harm that might arise from Contractor's breach of its Service Level obligations.

3.3 Issuance of Service Credits. Contractor shall, for each monthly invoice period, issue to the State, together with Contractor's invoice for such period, a written acknowledgment setting forth all Service Credits to which the State has become entitled during that invoice period. Contractor shall pay the amount of the Service Credit as a debt to the State within fifteen (15) Business Days of issue of the Service Credit acknowledgment, provided that, at the State's option, the State may, at any time prior to Contractor's payment of such debt, deduct the Service Credit from the amount payable by the State to Contractor pursuant to such invoice.

3.4 Additional Remedies for Service Level Failures. Contractor's repeated failure to meet the Service Levels for Resolution of any Critical Service Errors or High Service Errors, or any combination of such Errors, within the applicable Resolution time set out in the Service Level Table will constitute a material breach under the Contract. Without limiting the State's right to receive Service Credits under this Section, the State may terminate this Schedule for cause in accordance with terms of the Contract.

4. Communications. In addition to the mechanisms for giving notice specified in the Contract, unless expressly specified otherwise in this Schedule or the Contract, the parties may use e-mail for communications on any matter referred to herein.

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SCHEDULE D Service Level Agreement
1. Definitions. For purposes of this Schedule, the following terms have the meanings set forth below. All initial capitalized terms in this Schedule that are not defined in this Section 1 shall have the respective meanings given to them in the Contract Terms and Conditions.
“Actual Uptime” means the total minutes in the Service Period that the Hosted Services are Available.
“Availability” has the meaning set forth in Section 4(a). “Availability Requirement” has the meaning set forth in Section 4(a). “Available” has the meaning set forth in Section 4(a). “Contractor Service Manager” has the meaning set forth in Section 3.1. “Corrective Action Plan” has the meaning set forth in Section 5.6. “Critical Service Error” has the meaning set forth in Section 5.4(a). “Exceptions” has the meaning set forth in Section 4.2. “Force Majeure Event” has the meaning set forth in Section 6.1. “High Service Error” has the meaning set forth in Section 5.4(a). “Hosted Services” has the meaning set forth in Section 2.1(a). “Low Service Error” has the meaning set forth in Section 5.4(a). “Medium Service Error” has the meaning set forth in Section 5.4(a). “Resolve” has the meaning set forth in Section 5.4(b). “Scheduled Downtime” has the meaning set forth in Section 4.3. “Scheduled Uptime” means the total minutes in the Service Period. “Service Availability Credits” has the meaning set forth in Section 4.6(a). “Service Error” means any failure of any Hosted Service to be Available or otherwise perform in accordance with this Schedule. “Service Level Credits” has the meaning set forth in Section 5.5.

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“Service Level Failure” means a failure to perform the Software Support Services fully in compliance with the Support Service Level Requirements.
“Service Period” has the meaning set forth in Section 4(a).
“Software” has the meaning set forth in the Contract.
“Software Support Services” has the meaning set forth in Section 5.
“State Service Manager” has the meaning set forth in Section 3.2.
“State Systems” means the information technology infrastructure, including the computers, software, databases, electronic systems (including database management systems) and networks, of the State or any of its designees.
“Support Request” has the meaning set forth in Section 5.4(a).
“Support Service Level Requirements” has the meaning set forth in Section 5.4.
“Term” has the meaning set forth in the Contract.
2. Services.
2.1 Services. Throughout the Term, Contractor will, in accordance with all terms and conditions set forth in the Contract and this Schedule, provide to the State and its Authorized Users the following services:
(a) the hosting, management and operation of the Software and other services for remote electronic access and use by the State and its Authorized Users (“Hosted Services”);
(b) the Software Support Services set forth in Section 5 of this Schedule;
3. Personnel
3.1 Contractor Personnel for the Hosted Services. Contractor will appoint a Contractor employee to serve as a primary contact with respect to the Services who will have the authority to act on behalf of Contractor in matters pertaining to the receipt and processing of Support Requests and the Software Support Services (the “Contractor Service Manager”). The Contractor Service Manager will be considered Key Personnel under the Contract.
3.2 State Service Manager for the Hosted Services. The State will appoint and, in its reasonable discretion, replace, a State employee to serve as the primary contact with respect to the Services who will have the authority to act on behalf of the State in matters pertaining to the Software Support Services, including the submission and processing of Support Requests (the “State Service Manager”).
4. Service Availability and Service Availability Credits.

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(a) Availability Requirement. Contractor will make the Hosted Services Available, as measured over the course of each calendar month during the Term and any additional periods during which Contractor does or is required to perform any Hosted Services (each such calendar month, a “Service Period”), at least 99.98% of the time, excluding only the time the Hosted Services are not Available solely as a result of one or more Exceptions (the “Availability Requirement”). “Available” means the Hosted Services are available and operable for access and use by the State and its Authorized Users over the Internet in material conformity with the Contract. “Availability” has a correlative meaning. The Hosted Services are not considered Available in the event of a material performance degradation or inoperability of the Hosted Services, in whole or in part. The Availability Requirement will be calculated for the Service Period as follows: (Actual Uptime – Total Minutes in Service Period Hosted Services are not Available Due to an Exception) ÷ (Scheduled Uptime – Total Minutes in Service Period Hosted Services are not Available Due to an Exception) x 100 = Availability.
4.2 Exceptions. No period of Hosted Service degradation or inoperability will be included in calculating Availability to the extent that such downtime or degradation is due to any of the following (“Exceptions”):
(a) failures of the State’s or its Authorized Users’ internet connectivity;
(b) Scheduled Downtime as set forth in Section 4.3.
4.3 Scheduled Downtime. Contractor must notify the State at least twenty-four (24) hours in advance of all scheduled outages of the Hosted Services in whole or in part (“Scheduled Downtime”). All such scheduled outages will: (a) last no longer than five (5) hours; (b) be scheduled between the hours of 12:00 a.m. and 5:00 a.m., Eastern Time; and (c) occur no more frequently than once per week; provided that Contractor may request the State to approve extensions of Scheduled Downtime above five (5) hours, and such approval by the State may not be unreasonably withheld or delayed. No scheduled downtime allowed for 45 days prior to an election.
4.4 Software Response Time. Software response time, defined as the interval from the time the end user sends a transaction to the time a visual confirmation of transaction completion is received, must be less than two (2) seconds for 98% of all transactions. Unacceptable response times shall be considered to make the Software unavailable and will count against the Availability Requirement.
4.5 Service Availability Reports. Within thirty (30) days after the end of each Service Period, Contractor will provide to the State a report describing the Availability and other performance of the Hosted Services during that calendar month as compared to the Availability Requirement. The report must be in electronic or such other form as the State may approve in writing and shall include, at a minimum: (a) the actual performance of the Hosted Services relative to the Availability Requirement; and (b) if Hosted Service performance has failed in any respect to meet or exceed the Availability Requirement during the reporting period, a description in sufficient detail to inform the State of the cause of such failure and the corrective actions the Contractor has taken and will take to ensure that the Availability Requirement are fully met.

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4.6 Remedies for Service Availability Failures.

(a) If the actual Availability of the Hosted Services is less than the Availability Requirement for any Service Period, such failure will constitute a Service Error for which Contractor will issue to the State the following credits on the fees payable for Hosted Services provided during the Service Period (“Service Availability Credits”):

Availability ≥99.98%
<99.98% but ≥99.0% <99.0% but ≥95.0%
<95.0%

Credit of Fees None 15% 50% 100%

(b) Any Service Availability Credits due under this Section 4.6 will be applied in accordance with payment terms of the Contract.
(c) If the actual Availability of the Hosted Services is less than the Availability Requirement in any two (2) of four (4) consecutive Service Periods, then, in addition to all other remedies available to the State, the State may terminate the Contract on written notice to Contractor with no liability, obligation or penalty to the State by reason of such termination.
5. Support and Maintenance Services. Contractor will provide Hosted Service maintenance and support services (collectively, “Software Support Services”) in accordance with the provisions of this Section 5. The Software Support Services are included in the Services, and Contractor may not assess any additional fees, costs or charges for such Software Support Services.
5.1 Support Service Responsibilities. Contractor will:
(a) correct all Service Errors in accordance with the Support Service Level Requirements, including by providing defect repair, programming corrections and remedial programming;
(b) provide unlimited telephone support Normal business hours, but 24x7 for 45 days prior to elections.;
(c) provide unlimited online support 24 hours a day, seven days a week;
(d) provide online access to technical support bulletins and other user support information and forums, to the full extent Contractor makes such resources available to its other customers; and
(e) respond to and Resolve Support Requests as specified in this Section 5.

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5.2 Service Monitoring and Management. Contractor will continuously monitor and manage the Hosted Services to optimize Availability that meets or exceeds the Availability Requirement. Such monitoring and management includes:
(a) proactively monitoring on a twenty-four (24) hour by seven (7) day basis all Hosted Service functions, servers, firewall and other components of Hosted Service security;
(b) if such monitoring identifies, or Contractor otherwise becomes aware of, any circumstance that is reasonably likely to threaten the Availability of the Hosted Service, taking all necessary and reasonable remedial measures to promptly eliminate such threat and ensure full Availability; and
(c) if Contractor receives knowledge that the Hosted Service or any Hosted Service function or component is not Available (including by written notice from the State pursuant to the procedures set forth herein):
(i) confirming (or disconfirming) the outage by a direct check of the associated facility or facilities;
(ii) if Contractor’s facility check in accordance with clause (i) above confirms a Hosted Service outage in whole or in part: (A) notifying the State in writing pursuant to the procedures set forth herein that an outage has occurred, providing such details as may be available, including a Contractor trouble ticket number, if appropriate, and time of outage; and (B) working all problems causing and caused by the outage until they are Resolved as Critical Service Errors in accordance with the Support Request Classification set forth in Section 5.4, or, if determined to be an internet provider problem, open a trouble ticket with the internet provider; and
(iii) notifying the State that Contractor has fully corrected the outage and any related problems, along with any pertinent findings or action taken to close the trouble ticket.
5.3 Service Maintenance. Contractor will continuously maintain the Hosted Services to optimize Availability that meets or exceeds the Availability Requirement. Such maintenance services include providing to the State and its Authorized Users:
(a) all updates, bug fixes, enhancements, new releases, new versions and other improvements to the Hosted Services, including the Software, that Contractor provides at no additional charge to its other similarly situated customers; and
(b) all such services and repairs as are required to maintain the Hosted Services or are ancillary, necessary or otherwise related to the State’s or its Authorized Users’ access to or use of the Hosted Services, so that the Hosted Services operate properly in accordance with the Contract and this Schedule.

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5.4 Support Service Level Requirements. Contractor will correct all Service Errors and respond to and Resolve all Support Requests in accordance with the required times and other terms and conditions set forth in this Section 5.4 (“Support Service Level Requirements”), and the Contract.
(a) Support Requests. The State will classify its requests for Service Error corrections in accordance with the descriptions set forth in the chart below (each a “Support Request”). The State Service Manager will notify Contractor of Support Requests by email, telephone or such other means as the parties may hereafter agree to in writing.

Support Request Classification Critical Service Error
High Service Error Medium Service Error Low Service Error

Description:
Any Service Error Comprising or Causing any of the Following Events or Effects
• Issue affecting entire system or single critical production function;
• System down or operating in materially degraded state;
• Data integrity at risk; • Declared a Critical Support Request by
the State; or • Widespread access interruptions.
• Primary component failure that materially impairs its performance; or
• Data entry or access is materially impaired on a limited basis.
• Hosted Service is operating with minor issues that can be addressed with an acceptable (as determined by the State) temporary work around.
• Request for assistance, information, or services that are routine in nature.

(b) Response and Resolution Time Service Levels. Response and Resolution times will be measured from the time Contractor receives a Support Request until the respective times Contractor has (i) responded to, in the case of response time and (ii) Resolved such Support Request, in the case of Resolution time. “Resolve” (including “Resolved”, “Resolution” and correlative capitalized terms) means that, as to any Service Error, Contractor has provided the State the corresponding Service Error

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correction and the State has confirmed such correction and its acceptance thereof. Contractor will respond to and Resolve all Service Errors within the following times based on the severity of the Service Error:

Support Request Classification

Service Level Metric
(Required Response
Time)

Service Level Metric
(Required Resolution Time)

Service Level Credits
(For Failure to Respond to any Support Request
Within the Corresponding Response Time)

Service Level Credits
(For Failure to Resolve any Support Request
Within the Corresponding
Required Resolution Time)

Critical Service Thirty (30)

Error

minutes

Three (3) hours

Five percent (5%) of the Fees for the month in which the initial Service Level Failure begins and five percent (5%) of such monthly Fees for each additional hour or portion thereof that the corresponding Service Error is not responded to within the required response time.

Five percent (5%) of the Fees for the month in which the initial Service Level Failure begins and five percent (5%) of such monthly Fees for the first additional hour or portion thereof that the corresponding Service Error remains unResolved, which amount will thereafter double for each additional one-hour increment.

High Service Error

One (1) hour

Four (4) hours

Three percent (3%) of the Fees for the month in which the initial Service Level Failure begins and three percent (3%) of such monthly Fees for each

Three percent (3%) of the Fees for the month in which the initial Service Level Failure begins and three percent (3%) of such monthly Fees for the first

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Medium Service Error
Low Service Error

Three (3) hours Two (2) Business Days
Three (3) hours Five (5) Business Days

additional hour or portion thereof that the corresponding Service Error is not responded to within the required response time.

additional hour or portion thereof that the corresponding Service Error remains unResolved, which amount will thereafter double for each additional one-hour increment.

N/A

N/A

N/A

N/A

(c) Escalation. With respect to any Critical Service Error Support Request, until such Support Request is Resolved, Contractor will escalate that Support Request within sixty (60) minutes of the receipt of such Support Request by the appropriate Contractor support personnel, including, as applicable, the Contractor Service Manager and Contractor’s management or engineering personnel, as appropriate.
5.5 Support Service Level Credits. Failure to achieve any of the Support Service Level Requirements for Critical and High Service Errors will constitute a Service Level Failure for which Contractor will issue to the State the corresponding service credits set forth in Section 5.4(b) (“Service Level Credits”) in accordance with payment terms set forth in the Contract.
5.6 Corrective Action Plan. If two or more Critical Service Errors occur in any thirty (30) day period during (a) the Term or (b) any additional periods during which Contractor does or is required to perform any Hosted Services, Contractor will promptly investigate the root causes of these Service Errors and provide to the State within five (5) Business Days of its receipt of notice of the second such Support Request an analysis of such root causes and a proposed written corrective action plan for the State’s review, comment and approval, which, subject to and upon the State’s written approval, shall be a part of, and by this reference is incorporated in, the Contract as the parties’ corrective action plan (the “Corrective Action Plan”). The Corrective Action Plan must include, at a minimum: (a) Contractor’s commitment to the State to devote the appropriate time, skilled personnel, systems support and equipment and other resources necessary to Resolve and prevent any further occurrences of the Service Errors giving rise to such Support Requests; (b) a strategy for developing any programming, software updates, fixes, patches, etc. necessary to remedy, and prevent any further occurrences of, such Service Errors; and (c) time frames for implementing the Corrective Action Plan. There will be no additional charge for Contractor’s preparation or implementation of the Corrective Action Plan in the time frames and manner set forth therein.

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SCHEDULE E Disaster Recovery Plan (Contractor’s Disaster Recovery Plan is included as an attachment)

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SCHEDULE F Data Security Requirements
1. Definitions. For purposes of this Schedule, the following terms have the meanings set forth below. All initial capitalized terms in this Schedule that are not defined in this Section 1 shall have the respective meanings given to them in the Contract Terms and Conditions.
“Contractor Security Officer” has the meaning set forth in Section 2 of this Schedule.
“FedRAMP” means the Federal Risk and Authorization Management Program, which is a federally approved risk management program that provides a standardized approach for assessing and monitoring the security of cloud products and services.
“FISMA” means The Federal Information Security Modernization Act of 2014 (Pub.L. No. 113-283 (Dec. 18, 2024)).
“Hosting Provider” means any Subcontractor that is providing any or all of the Hosted Services under this Contract.
“Hosted Services” means the hosting, management and operation of the computing hardware, ancillary equipment, networking, software, firmware, databases, data, electronic systems (including database management systems), Software, other services (including support and subcontracted services), and related resources for remote electronic access and use by the State and its Authorized Users, including any services and facilities related to disaster recovery obligations.
“NIST” means the National Institute of Standards and Technology.
“PSP” means the State’s IT Policies, Standards and Procedures.
“SSAE” means Statement on Standards for Attestation Engagements.
2. Security Officer. Contractor will appoint a Contractor employee to respond to the State’s inquiries regarding the security who has sufficient knowledge of the security of the Services and Software and the authority to act on behalf of Contractor in matters pertaining thereto (“Contractor Security Officer”). The Contractor Security Officer will be considered Key Personnel under the Contract.
3. Protection of the State’s Confidential Information. Throughout the Term and at all times in connection with its actual or required performance of the Services, Contractor will:
3.1 if Hosted Services are provided by a Hosting Provider, ensure each Hosting Provider maintains FedRAMP authorization for the Hosted Services it is providing throughout the Term, and in the event a Hosting Provider is unable to maintain FedRAMP authorization, the State, at its sole discretion, may either a) require that Contractor move the Software and State Data to an alternative Hosting Provider selected and approved by the State at Contractor’s sole cost and expense and without any increase in Fees, or b) immediately terminate this Contract for cause pursuant to Section 23.1 of the Contract;
3.2 if Contractor is not using a Hosting Provider to provide Hosted Services, maintain either a FedRAMP authorization or an annual SSAE 18 SOC 2 Type 2 (or Type 3) audit based on State required NIST moderate controls for the Hosted Services throughout the Term;

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3.3 ensure that the Software and State Data is securely hosted, supported, administered, accessed, and backed up in a data center(s) that resides in the continental United States, and minimally meets Uptime Institute Tier 3 standards (www.uptimeinstitute.com), or its equivalent;
3.4 maintain and enforce an information security program including safety and physical and technical security policies and procedures with respect to its Processing of State Data that complies with the requirements of the State’s data security policies as set forth in the Contract, and must, at a minimum, remain compliant with FISMA and the NIST Special Publication 800-53 (most recent version) MOD Controls using minimum control values as established in the applicable State PSP’s;
3.5 provide technical and organizational safeguards against accidental, unlawful or unauthorized access to or use, destruction, loss, alteration, disclosure, transfer, commingling or processing of such information that ensure a level of security appropriate to the risks presented by the processing of State Data and the nature of such State Data, consistent with best industry practice and applicable standards (including, but not limited to, compliance with FISMA, NIST, PCI, IRS, FBI, and IRS requirements);
3.6 take all reasonable measures to:
(a) secure and defend all locations, equipment, systems and other materials and facilities employed in connection with the Services against “hackers” and others who may seek, without authorization, to disrupt, damage, modify, access or otherwise use Hosted Services or the information found therein; and
(b) prevent (i) the State and its Authorized Users from having access to the data of other customers or such other customer’s users of the Services; (ii) State Data from being commingled with or contaminated by the data of other customers or their users of the Services; and (iii) unauthorized access to any State Data;
3.7 ensure that State Data is encrypted in transit and at rest using FIPS validated encryption modules with AES encryption and a key size of 256 bits or higher encryption;
3.8 ensure the Hosted Services support Identity Federation/Single Sign-on (SSO) capabilities using Security Assertion Markup Language (SAML) Open Authentication (OAuth) or comparable mechanisms; and
3.9 ensure the Hosted Services implement NIST compliant multi-factor authentication for privileged/administrative and other identified access.
4. Unauthorized Access. Contractor will be solely responsible for its systems and any Hosted Services. Contractor may not access, and shall not permit any access to, State systems, in whole or in part, whether through its systems, the Hosted Services (if any), or otherwise, without the State’s express prior written authorization. Such authorization may be revoked by the State in writing at any time in its sole discretion. Any access to State systems must be solely in accordance with the Contract and this Schedule, and in no case exceed the scope of the State’s authorization pursuant to this Section 4. All State-authorized connectivity or attempted connectivity to State systems shall be only through the State’s

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security gateways and firewalls and in compliance with the State’s security policies set forth in this Contract as the same may be supplemented or amended by the State and provided to Contractor from time to time.
5. Security Audits. During the Term, Contractor will:
5.1 maintain complete and accurate records relating to its data protection practices, IT security controls, and the security logs of any State Data, including any backup, disaster recovery or other policies, practices or procedures relating to State Data and any other information relevant to its compliance with this Schedule including compliance with applicable State retention schedules ;
5.2 upon the State’s request, make all such records, appropriate personnel and relevant materials available during normal business hours for inspection and audit by the State or an independent data security expert that is reasonably acceptable to Contractor, provided that the State: (i) gives Contractor at least five (5) Business Days prior notice of any such audit; (ii) undertakes such audit no more than once per calendar year, except for good cause shown; and (iii) conducts or causes to be conducted such audit in a manner designed to minimize disruption of Contractor’s normal business operations and that complies with the terms and conditions of all data confidentiality, ownership, privacy, security and restricted use provisions of the Contract. The State may, but is not obligated to, perform such security audits, which shall, at the State’s option and request, include penetration and security tests, of any and all Hosted Services and their housing facilities and operating environments; and
5.3 upon the State’s request, provide a copy of Contractor’s or Hosting Provider’s FedRAMP System Security Plan or Contractor’s SOC 2 Type 2 (or Type 3) report(s) to the State within thirty (30) days of the State’s request. The System Security Plan or SOC reports will be recognized as Contractor’s Confidential Information.
6. Application Scanning. Contractor must either a) grant the State the right to scan the application code to a deployed version of the solution; or b) in lieu of the State performing a scan, Contractor must provide the State a vulnerabilities assessment after Contractor has used a State approved application scanning tool. These scans must be completed and provided to the State quarterly (dates to be provided by the State) and for each major release.
For Contractor provided applications, Contractor, at its sole expense, must provide resources to complete the scanning and the analysis, remediation and validation of vulnerabilities identified by the scan as required by the State Secure Web Application Standards.
Application scanning and remediation must include the following types of scans and activities:
• Dynamic Application Security Testing (DAST) - Scanning interactive application for vulnerabilities, analysis, remediation and validation (May include IAST)
• Static Application Security Testing (SAST) - Scanning source code for vulnerabilities, analysis, remediation and validation
Application scanning and remediation must include the following types of scans and activities as required based on data classification and/or composition.

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• Software Composition Analysis (SCA) – Third Party and/or Open Source Scanning for vulnerabilities, analysis, remediation and validation
• Native mobile application software scanning (if applicable) including and interaction with an Application Programming Interface (API)
• Penetration Testing – Simulated attack on the application and infrastructure to identify security weaknesses
7. Infrastructure Scanning. For Hosted Services, Contractor must ensure the infrastructure and applications are scanned using an approved scanning tool (Qualys, Tenable, or other PCI Approved Vulnerability Scanning Tool) at least once every 30 days and provide the scan’s assessments to the State in a format that can be uploaded by the State and used to track the remediation. Contractor will ensure that issues identified in the scan are remediated according to the remediation time requirements documented in the State PSPs.
8. Nonexclusive Remedy for Security Breach. Any failure of the Services to meet the requirements of this Schedule with respect to the security of any State Data or other Confidential Information of the State, including any related backup, disaster recovery or other policies, practices or procedures, is a material breach of the Contract for which the State, at its option, may terminate the Contract for cause immediately pursuant to Section 23.1 of the Contract, and Contractor must promptly reimburse to the State any Fees prepaid by the State prorated to the date of such termination.

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SCHEDULE G
Federal Provisions Addendum
This addendum applies to purchases that will be paid for in whole or in part with funds obtained from the federal government. The provisions below are required, and the language is not negotiable. If any provision below conflicts with the State’s terms and conditions, including any attachments, schedules, or exhibits to the State’s Contract, the provisions below take priority to the extent a provision is required by federal law; otherwise, the order of precedence set forth in the Contract applies. Hyperlinks are provided for convenience only; broken hyperlinks will not relieve Contractor from compliance with the law.
1. Equal Employment Opportunity If this Contract is a “federally assisted construction contract” as defined in 41 CFR Part 60-1.3, and except as otherwise may be provided under 41 CFR Part 60, then during performance of this Contract, the Contractor agrees as follows:
(1) The Contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity, or national origin. The Contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion, sex, sexual orientation, gender identity, or national origin. Such action shall include, but not be limited to the following:
Employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause.
(2) The Contractor will, in all solicitations or advertisements for employees placed by or on behalf of the Contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin.
(3) The Contractor will not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. This provision shall not apply to instances in which an employee who has access to the compensation information of other employees or applicants as a part of such employee's essential job functions discloses the compensation of such other employees or applicants to individuals who do not otherwise have access to such information, unless such disclosure is in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or is consistent with the Contractor's legal duty to furnish information.
(4) The Contractor will send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice to be provided advising the said labor union or workers' representatives of the Contractor's commitments under this section, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.
(5) The Contractor will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor.
(6) The Contractor will furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and accounts by the administering agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders.
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(7) In the event of the Contractor's noncompliance with the nondiscrimination clauses of this contract or with any of the said rules, regulations, or orders, this Contract may be canceled, terminated, or suspended in whole or in part and the Contractor may be declared ineligible for further Government contracts or federally assisted construction contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law.
(8) The Contractor will include the portion of the sentence immediately preceding paragraph (1) and the provisions of paragraphs (1) through (8) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. The Contractor will take such action with respect to any subcontract or purchase order as the administering agency may direct as a means of enforcing such provisions, including sanctions for noncompliance:
Provided, however, that in the event a Contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction by the administering agency, the Contractor may request the United States to enter into such litigation to protect the interests of the United States.
The applicant further agrees that it will be bound by the above equal opportunity clause with respect to its own employment practices when it participates in federally assisted construction work: Provided, that if the applicant so participating is a State or local government, the above equal opportunity clause is not applicable to any agency, instrumentality or subdivision of such government which does not participate in work on or under the contract.
The applicant agrees that it will assist and cooperate actively with the administering agency and the Secretary of Labor in obtaining the compliance of contractors and subcontractors with the equal opportunity clause and the rules, regulations, and relevant orders of the Secretary of Labor, that it will furnish the administering agency and the Secretary of Labor such information as they may require for the supervision of such compliance, and that it will otherwise assist the administering agency in the discharge of the agency's primary responsibility for securing compliance.
The applicant further agrees that it will refrain from entering into any contract or contract modification subject to Executive Order 11246 of September 24, 1965, with a contractor debarred from, or who has not demonstrated eligibility for, Government contracts and federally assisted construction contracts pursuant to the Executive Order and will carry out such sanctions and penalties for violation of the equal opportunity clause as may be imposed upon contractors and subcontractors by the administering agency or the Secretary of Labor pursuant to Part II, Subpart D of the Executive Order. In addition, the applicant agrees that if it fails or refuses to comply with these undertakings, the administering agency may take any or all of the following actions: Cancel, terminate, or suspend in whole or in part this grant (contract, loan, insurance, guarantee); refrain from extending any further assistance to the applicant under the program with respect to which the failure or refund occurred until satisfactory assurance of future compliance has been received from such applicant; and refer the case to the Department of Justice for appropriate legal proceedings.
2. Davis-Bacon Act (Prevailing Wage) If this Contract is a prime construction contracts in excess of $2,000, the Contractor (and its Subcontractors) must comply with the Davis-Bacon Act (40 USC 3141-3148) as supplemented by Department of Labor regulations (29 CFR Part 5, “Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted Construction”), and during performance of this Contract the Contractor agrees as follows:
(1) All transactions regarding this contract shall be done in compliance with the Davis-Bacon Act (40 U.S.C. 3141- 3144, and 3146-3148) and the requirements of 29C.F.R. pt. 5 as may be applicable. The contractor shall comply with 40 U.S.C. 3141-3144, and 3146-3148 and the requirements of 29 C.F.R. pt. 5 as applicable.
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(2) Contractors are required to pay wages to laborers and mechanics at a rate not less than the prevailing wages specified in a wage determination made by the Secretary of Labor.
(3) Additionally, contractors are required to pay wages not less than once a week.
3. Copeland “Anti-Kickback” Act If this Contract is a contract for construction or repair work in excess of $2,000 where the Davis-Bacon Act applies, the Contractor must comply with the Copeland “Anti-Kickback” Act (40 USC 3145), as supplemented by Department of Labor regulations (29 CFR Part 3, “Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or Grants from the United States”), which prohibits the Contractor and subrecipients from inducing, by any means, any person employed in the construction, completion, or repair of public work, to give up any part of the compensation to which he or she is otherwise entitled, and during performance of this Contract the Contractor agrees as follows:
(1) Contractor. The Contractor shall comply with 18 U.S.C. §874, 40 U.S.C. § 3145, and the requirements of 29 C.F.R. pt. 3 as may be applicable, which are incorporated by reference into this contract.
(2) Subcontracts. The Contractor or Subcontractor shall insert in any subcontracts the clause above and such other clauses as FEMA or the applicable federal awarding agency may by appropriate instructions require, and also a clause requiring the Subcontractors to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for the compliance by any subcontractor or lower tier subcontractor with all of these contract clauses.
(3) Breach. A breach of the contract clauses above may be grounds for termination of the contract, and for debarment as a Contractor and Subcontractor as provided in 29 C.F.R. § 5.12.
4. Contract Work Hours and Safety Standards Act If the Contract is in excess of $100,000 and involves the employment of mechanics or laborers, the Contractor must comply with 40 USC 3702 and 3704, as supplemented by Department of Labor regulations (29 CFR Part 5), as applicable, and during performance of this Contract the Contractor agrees as follows:
(1) Overtime requirements. No Contractor or Subcontractor contracting for any part of the contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one-half times the basic rate of pay for all hours worked in excess of forty hours in such workweek.
(2) Violation; liability for unpaid wages; liquidated damages. In the event of any violation of the clause set forth in paragraph (1) of this section the Contractor and any Subcontractor responsible therefor shall be liable for the unpaid wages. In addition, such Contractor and Subcontractor shall be liable to the United States (in the case of work done under contract for the District of Columbia or a territory, to such District or to such territory), for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set forth in paragraph (1) of this section, in the sum of $27 for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in paragraph (1) of this section.
(3) Withholding for unpaid wages and liquidated damages. The State shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld, from any moneys payable on account of work performed by the Contractor or Subcontractor under any such contract or any other Federal contract with the
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same prime contractor, or any other federally-assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same prime contractor, such sums as may be determined to be necessary to satisfy any liabilities of such contractor or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in paragraph (2) of this section.
(4) Subcontracts. The Contractor or Subcontractor shall insert in any subcontracts the clauses set forth in paragraph (1) through (4) of this section and also a clause requiring the Subcontractors to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in paragraphs (1) through (4) of this section.
5. Rights to Inventions Made Under a Contract or Agreement
If the Contract is funded by a federal “funding agreement” as defined under 37 CFR §401.2 (a) and the recipient or subrecipient wishes to enter into a contract with a small business firm or nonprofit organization regarding the substitution of parties, assignment or performance of experimental, developmental, or research work under that “funding agreement,” the recipient or subrecipient must comply with 37 CFR Part 401, “Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements,” and any implementing regulations issued by the awarding agency.
6. Clean Air Act and the Federal Water Pollution Control Act
If this Contract is in excess of $150,000, the Contractor must comply with all applicable standards, orders, and regulations issued under the Clean Air Act (42 USC 7401-7671q) and the Federal Water Pollution Control Act (33 USC 1251-1387), and during performance of this Contract the Contractor agrees as follows:
Clean Air Act
1. The Contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C. § 7401 et seq.
2. The Contractor agrees to report each violation to the State and understands and agrees that the State will, in turn, report each violation as required to assure notification to the Federal Emergency Management Agency or the applicable federal awarding agency, and the appropriate Environmental Protection Agency Regional Office.
3. The Contractor agrees to include these requirements in each subcontract exceeding $150,000 financed in whole or in part with Federal assistance provided by FEMA or the applicable federal awarding agency.
Federal Water Pollution Control Act
1. The Contractor agrees to comply with all applicablestandards, orders, or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et seq.
2. The Contractor agrees to report each violation to the State and understands and agrees that the State will, in turn, report each violation as required to assure notification to the Federal Emergency Management Agency or the applicable federal awarding agency, and the appropriate Environmental Protection Agency Regional Office.
3. The Contractor agrees to include these requirements in each subcontract exceeding $150,000 financed in whole or in part with Federal assistance provided by FEMA or the applicable federal awarding agency.
7. Debarment and Suspension
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A “contract award” (see 2 CFR 180.220) must not be made to parties listed on the government-wide exclusions in the System for Award Management (SAM), in accordance with the OMB guidelines at 2 CFR 180 that implement Executive Orders 12549 (51 FR 6370; February 21, 1986) and 12689 (54 FR 34131; August 18, 1989), “Debarment and Suspension.” SAM Exclusions contains the names of parties debarred, suspended, or otherwise excluded by agencies, as well as parties declared ineligible under statutory or regulatory authority other than Executive Order 12549.
(1) This Contract is a covered transaction for purposes of 2 C.F.R. pt. 180 and 2 C.F.R. pt. 3000. As such, the Contractor is required to verify that none of the Contractor’s principals (defined at 2 C.F.R. § 180.995) or its affiliates (defined at 2 C.F.R. § 180.905) are excluded (defined at 2 C.F.R. § 180.940) or disqualified (defined at 2 C.F.R. § 180.935).
(2) The Contractor must comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C, and must include a requirement to comply with these regulations in any lower tier covered transaction it enters into.
(3) This certification is a material representation of fact relied upon by the State. If it is later determined that the contractor did not comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C, in addition to remedies available to the State, the Federal Government may pursue available remedies, including but not limited to suspension and/or debarment.
(4) The bidder or proposer agrees to comply with the requirements of 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C while this offer is valid and throughout the period of any contract that may arise from this offer. The bidder or proposer further agrees to include a provision requiring such compliance in its lower tier covered transactions.
8. Byrd Anti-Lobbying Amendment Contractors who apply or bid for an award of $100,000 or more shall file the required certification in Exhibit 1 – Byrd Anti-Lobbying Certification below. Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, officer or employee of Congress, or an employee of a Member of Congress in connection with obtaining any Federal contract, grant, or any other award covered by 31 U.S.C. § 1352. Each tier shall also disclose any lobbying with non-Federal funds that takes place in connection with obtaining any Federal award. Such disclosures are forwarded from tier to tier up to the recipient who in turn will forward the certification(s) to the awarding agency.
9. Procurement of Recovered Materials Under 2 CFR 200.322, Contractors must comply with section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act.
(1) In the performance of this contract, the Contractor shall make maximum use of products containing recovered materials that are EPA-designated items unless the product cannot be acquired—
a. Competitively within a timeframe providing for compliance with the contract performance schedule;
b. Meeting contract performance requirements; or c. At a reasonable price.
(2) Information about this requirement, along with the list of EPA- designated items, is available at EPA’s Comprehensive Procurement Guidelines web site, https://www.epa.gov/smm/comprehensive- procurement-guideline-cpg-program.
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(3) The Contractor also agrees to comply with all other applicable requirements of Section 6002 of the Solid Waste Disposal Act.
10. Additional FEMA Contract Provisions. The following provisions apply to purchases that will be paid for in whole or in part with funds obtained from the Federal Emergency Management Agency (FEMA):
(1) Access to Records. The following access to records requirements apply to this contract: a. The Contractor agrees to provide the State, the FEMA Administrator, the Comptroller General of the United States, or any of their authorized representatives access to any books, documents, papers, and records of the Contractor which are directly pertinent to this contract for the purposes of making audits, examinations, excerpts, and transcriptions. b. The Contractor agrees to permit any of the foregoing parties to reproduce by any means whatsoever or to copy excerpts and transcriptions as reasonably needed. c. The Contractor agrees to provide the FEMA Administrator or his authorized representatives access to construction or other work sites pertaining to the work being completed under the contract. d. In compliance with the Disaster Recovery Act of 2018, the State and the Contractor acknowledge and agree that no language in this contract is intended to prohibit audits or internal reviews by the FEMA Administrator or the Comptroller General of the UnitedStates.
(2) Changes. See the provisions regarding modifications or change notice in the Contract Terms.
(3) DHS Seal, Logo, And Flags The Contractor shall not use the DHS seal(s), logos, crests, or reproductions of flags or likenesses of DHS agency officials without specific FEMA pre-approval.
(4) Compliance with Federal Law, Regulations, and Executive Orders This is an acknowledgement that FEMA financial assistance will be used to fund all or a portion of the contract. The Contractor will comply with all applicable Federal law, regulations, executive orders, FEMA policies, procedures, and directives.
(5) No Obligation by Federal Government The Federal Government is not a party to this contract and is not subject to any obligations or liabilities to the State, Contractor, or any other party pertaining to any matter resulting from the Contract.”
(6) Program Fraud and False or Fraudulent Statements or Related Acts The Contractor acknowledges that 31 U.S.C. Chap. 38 (Administrative Remedies for False Claims and Statements) applies to the Contractor’s actions pertaining to this contract.
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Exhibit 1 - Byrd Anti-Lobbying Certification

Contractor must complete this certification if the purchase will be paid for in whole or in part with funds obtained from the federal government and the purchase is greater than $100,000.

APPENDIX A, 44 C.F.R. PART 18 – CERTIFICATION REGARDING LOBBYING

Certification for Contracts, Grants, Loans, and Cooperative Agreements

The undersigned certifies, to the best of his or her knowledge and belief, that:

1. No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of an agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement.

2. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, “Disclosure Form to Report Lobbying,” in accordance with its instructions.

3. The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly.

This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by section 1352, title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.

The Contractor,

, certifies or affirms the

truthfulness and accuracy of each statement of its certification and disclosure, if any. In addition, the

Contractor understands and agrees that the provisions of 31 U.S.C. Chap. 38, Administrative

Remedies for False Claims and Statements, apply to this certification and disclosure, if any.

________________________________________ Signature of Contractor’s Authorized Official

________________________________________ Name and Title of Contractor’s Authorized Official

________________________________________ Date

 
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MICHAEL POWELL, ET AL.,

Plaintiffs, v.
JOCELYN BENSON, ET AL.,

Case No. 20-cv-11023
U.S. DISTRICT COURT JUDGE GERSHWIN A. DRAIN

Defendants.

______________

/

ORDER REGARDING IMPLEMENTATION OF CONSENT DECREE [#31]

On May 19, 2020, this Court entered a Consent Decree [#31] agreed to by the parties in this action. The Consent Decree required Defendants to implement a

Remote Accessible Vote-By-Mail (“RAVBM”) system to allow voters with print

disabilities to vote absentee privately and independently in time for the August 4, 2020 election, as well as to publicize the requirements of the Decree, to continue to

assist voters with print disabilities to vote in person, and to ensure equal opportunity

and equal effectiveness of the State’s Voting Program for voters with disabilities. Defendants announced on June 26, 2020 that the RAVBM will not be

implemented in time for the August 4, 2020 primary election. On June 26, 2020,

Plaintiffs filed an Unopposed Motion for Status Conference regarding certain alleged violations of the Consent Decree. See ECF No. 32.

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On July 2, July 7, July 8, and July 10, 2020, this Court held conferences via video technology to address Defendants’ plan to make absentee voting during the August 4, 2020 primary election accessible to voters with print disabilities. For the reasons stated on the record, it is hereby ORDERED:
1. Defendants will continue the improved accessible UOCAVA-based system for voters with print disabilities for the August election. This system includes:
a. Voters with print disabilities can access an accessible electronic absentee voter ballot application (“Accessible AV Request”) available on the Secretary of State’s website (https://www.michigan.gov/sos/0,4670,7127-1633_8716_8728-21037--,00.html). The Accessible AV Request can be submitted entirely electronically by e-mail by entering the voter’s drivers’ license, state ID number, or last 4 digits of their social security in lieu of a signature. The completed application can be emailed to the voter’s local clerk. The application includes instructions for looking up the local clerk’s email.
2. By July 14, 2020, Defendants will modify the general online absentee voter ballot request (“Online AV Request”) process, available at https://mvic.sos.state.mi.us/, so that it may be used to request accessible absentee ballots, including:
a. For voters using the Online AV Request absentee voter ballot to request

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an accessible ballot, clicking submit on the application will cause the request to be sent by online tool to the voter’s local clerk online queue for processing. b. Voters requesting an accessible AV ballot through the Online AV Request system will check a box to request an accessible AV ballot and make the same declaration regarding disability that is required on the Accessible AV Request application. The Online AV Request will require the voter to input the voter’s Michigan Driver’s License or State ID, and the voter’s stored signature will be sent to the clerk. 3. Defendants, in their supervisory capacity over local election officials, will ensure accessible AV ballot requests, whether received through the Accessible AV Request system or through the Online AV Request system, are processed as follows: a. Upon request for an accessible AV ballot, the clerk will generate an accessible ballot through the state’s automated ballot conversion process. b. Defendants have tested the accessible AV ballot with JAWS and NVDA screen readers. By July 10, 2020, Defendants will test the accessible AV ballot with Apple VoiceOver screen reader and correct any barriers identified through such test. c. Once the clerk has generated an accessible ballot, the clerk will email it to the voter. The voter will mark the ballot electronically, print it, place it in

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an envelope, sign the back of the envelope in any location, and mail or hand deliver it to the clerk or have an authorized person deliver it to the clerk by 8 p.m. on Election Day. 4. Within 24 hours of implementing the requirements of Paragraph 2, above, Defendants will add language to the initial screen of the Michigan Voter Information Center to alert voters that they can use the Online AV Request online tool to request an accessible AV ballot. Defendants will also publicize the Online AV Request process and tool and the process to request accessible AV ballots through the Online AV Request process in the same ways and through the same methods they used to publicize the Online AV Request system. 5. Defendants will ensure the Request for Proposals for a RAVBM results in a RAVBM being in place and available for absentee voting by voters with print disabilities at the same time (at least 40 days prior to the election) that absentee voting is made available to other voters for the November 3, 2020 election. The deadlines for interim steps, which may be modified without changing the Implementation Deadline with the agreement of the parties, are as follows: a. Vendor Selection – by July 20, 2020 b. Contract and Project Initiation – by July 28, 2020 c. Requirements – by July 30, 2020 d. Design - by August 6, 2020 e. Development or Configuration – by August 25, 2020 f. User Acceptance Testing (UAT) – by August 27, 2020 g. Implementation – by September 10, 2020

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6. Defendants will notify Plaintiffs and the Court immediately upon selection of a vendor for the RAVBM, providing the information required by the Consent Decree at § II(5)(a)(i).
7. Defendants will report to the Court and to Plaintiffs at least weekly regarding their progress in carrying out this Order and the Consent Decree.
8. Within 24 hours of entry of this order, Defendants will make copies of the Original Consent Decree [#31] and this Order available on their website.
9. Defendants, in their supervisory capacity over local election officials, will continue the procedure they provided for the May 5, 2020 election of providing assistance to voters with print disabilities seeking to vote in person by absentee ballot.
10. Failure to meet the deadlines in this Order may result in sanctions. IT IS SO ORDERED.

s/Gershwin A. Drain_________________ GERSHWIN A. DRAIN UNITED STATES DISTRICT JUDGE

Dated: July 13, 2020

CERTIFICATE OF SERVICE

Copies of this Order were served upon attorneys of record on July 13, 2020, by electronic and/or ordinary mail. /s/ Teresa McGovern Case Manager